Sanders v. Roselawn Memorial Gardens, Inc., No. 12662

CourtSupreme Court of West Virginia
Writing for the CourtCALHOUN
Citation152 W.Va. 91,159 S.E.2d 784
PartiesWilliam H. SANDERS et al. v. ROSELAWN MEMORIAL GARDENS, INC., et al.
Decision Date27 February 1968
Docket NumberNo. 12662

Page 784

159 S.E.2d 784
152 W.Va. 91
William H. SANDERS et al.
v.
ROSELAWN MEMORIAL GARDENS, INC., et al.
No. 12662.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 23, 1968.
Decided Feb. 27, 1968.

Page 785

Syllabus by the Court

1. The law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation; and it is the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy.

2. 'Agreements made and acts done under a mistake of law are (if not otherwise objectionable) generally valid and obligatory.' Point 1 Syllabus, Harner v. Price, 17 W.Va. 523.

Page 786

3. 'A compromise of a controversy is a valuable consideration to sustain a contract.' Point 2 Syllabus, Rutherford v. Rutherford, 55 W.Va. 56 (47 S.E. 240.).

4. 'A compromise of a doubtful question, either of law or fact, where fairly made between parties competent to contract, is binding and can not be affected by any subsequent investigation or result.' Point 4 Syllabus, Davis v. Lilly, 96 W.Va. 144 (122 S.E. 444.).

5. Where parties to a controversy, in order to resolve their differences amicably and without resort to legal action, enter into a written compromise agreement with full knowledge of the facts forming the basis of the controversy, after full and fair negotiations and in the absence of any fraud or misrepresentation, neither party to such compromise agreement will be permitted [152 W.Va. 92] thereafter to escape any agreement or covenant thereby made by him on the ground that the claim asserted by the other party as a basis of the compromise could not have been sustained ultimately in appropriate legal proceedings in a court, if it appears that such claim was at least colorable or doubtful in character and asserted by such other party in good faith.

6. An owner of a servient estate may legally grant successive easements for purposes of travel in and over a certain road or way in favor of various property owners having need for such travel easements, to be used jointly by them; and a person having such an easement right may not be permitted to object to any use of or change in the character of such road or way by the owner of the servient estate or by any other owner of such an easement right or way so long as the rights of the one complaining are not thereby impaired or interfered with in an undue or unreasonable manner or degree.

7. As a general rule, a fair test as to whether a business, which is not unlawful in itself, or whether a particular use of the property in connection with which the business is maintained and operated constitutes a nuisance, is the reasonableness or unreasonableness thereof in the particular locality and under all the existing circumstances; and ordinarily, where the business and the manner in which it is conducted are reasonable, no nuisance is thereby created against which a complaining party may have legal relief.

8. A finding of fact made by a trial chancellor or by a trial court sitting in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by this Court on appeal unless the evidence plainly and decidedly preponderates against such finding.

9. The legal principle relating to restraint on alienation and that relating to contracts in restraint of trade, though distinct in character, are similar in their purpose in that they both are designed to prohibit undue restraints upon an owner in the use, alienation or devolution of property belonging to him.

10. While, legally speaking, a corporation constitutes an entity separate and apart from the persons who own it, such is a fiction of [152 W.Va. 93] the law introduced for purpose of convenience and to subserve the ends of justice; and it is now well settled, as a general principle, that the fiction should be disregarded when it is urged with an intent not within its reason and purpose, and in such a way that its retention would produce injustices or inequitable consequences.

Hudgins, Coulling & Brewster, L. R. Coulling, Jr., Bluefield, for appellants.

Sanders, Sanders & Bivens, Joseph M. Sanders, Jr., Joseph M. Sanders, Bluefield, for appellees.

CALHOUN, Judge.

This case is before the Court on appeal from a final judgment of the Circuit Court of Mercer County entered in a civil action instituted in that court in August, 1965, by

Page 787

William H. Sanders and Katherine L. Sanders, husband and wife, as plaintiffs, against Roselawn Memorial Gardens, Inc., a corporation, A. T. Gott, Eula M. Bay, Elmer Hall Bay, E. B. Gott and Myrtle Gott, as defendants. The individual defendants named above, who may be referred to hereafter in this opinion as the Gotts, are the grantors in a deed by which they conveyed to the plaintiffs a tract of thirty acres of land approximately one mile from the City of Princeton, in Mercer County, upon which land the plaintiffs subsequently constructed their home. Roselawn Memorial Gardens, Inc., which sometimes hereafter in this opinion will be referred to as Roselawn, has constructed and now maintains and operates a cemetery nearby.

[152 W.Va. 94] The basic purpose of the civil action is to enforce in favor of the plaintiffs the provisions of a written compromise agreement entered into by them with Roselawn. The written compromise agreement was entered into for the purpose of adjusting and settling certain differences which had arisen between the parties by reason of the construction, maintenance and proposed expansion of the cemetery near the plaintiffs' home. After the action was instituted, the trial court entered an order, pursuant to agreement of all parties, by which George A. Morton and Elizabeth Morton, husband and wife, and sole owners of the stock of Roselawn were made additional parties defendant to the action.

The case was tried before the court in lieu of a jury upon testimony taken at the bar of the court. In connection with the trial, the judge, accompanied by counsel, took a view of the premises. By an order entered pursuant to a written opinion of the trial court which was made a part of the record, judgment was rendered in favor of the defendants. By an order subsequently entered, the trial court overruled a motion to set aside the judgment and affirmed the judgment previously entered.

The exact date of the latter order is subject to some confusion or uncertainty. By its initial language it purports to set forth a judgment rendered by the court on June 4, 1966. It was endorsed for entry by the trial judge on June 10, 1966. The certificate of the clerk of the trial court indicates that it was entered on the court order records on June 11, 1966.

The petition for appeal to this Court states that the appeal is sought from a judgment entered on June 10, 1966. The petition for appeal was filed in the office of the clerk of this Court on February 7, 1967. It appears, therefore, that the filing of the petition for appeal was timely. Nevertheless, the circumstances of this case illustrate the difficulty which this Court too often encounters in determining upon what date a certain action was taken or a judgment entered in the trial court. Fortunately, the confusion and uncertainty are not of a serious or prejudicial character in this case but we believe that it may not be amiss for us here to admonish the bench and bar and clerks [152 W.Va. 95] of trial courts of record that care should be exercised in properly and accurately recording court proceedings.

The deed conveying the 30-acre tract of land to the plaintiffs is dated December 7, 1953. The plaintiffs soon thereafter erected on the 30-acre tract a dwelling at a cost of approximately one hundred thousand dollars. Photographs of this house were made exhibits and a part of the record. It was erected in a rural, farming area, no other homes being nearby. There was no cemetery in the area at that time. A residential development known as City View Heights has been developed and made a part of the City of Princeton. The residential area thus developed is approximately one-fourth mile from the plaintiffs' property.

About the time the construction of the plaintiffs' home was nearing completion, Roselawn purchased a parcel of land which is referred to in the record as a part of the Hunter land. Roselawn was originally incorporated in West Virginia by three men who were residents of Tennessee, one

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of whom was George A. Morton, a civil engineer. At the time of the trial, Morton and his wife had become the sole owners of the stock in the corporation and were residing at Princeton.

The Hunter tract purchased by Roselawn contains approximately twenty acres and is referred to in the record as the eastern portion of the Roselawn cemetery. By a deed dated June 15, 1957, Roselawn obtained a conveyance of a tract of 59.4 acres lying west of its 20-acre tract. The 59.4-acre tract, which is referred to in the record as the western portion of the cemetery, was conveyed to Roselawn by substantially the same grantors as the grantors in the deed by which the 30-acre tract had been conveyed to the plaintiffs. Both portions of the cemetery, generally speaking, lie south of the plaintiffs' property.

A portion of Roselawn's 20-acre tract adjoins the Sanders' 30-acre tract. Between the Sanders' 30-acre tract and the 59.4-acre Roselawn tract, there lies a body of land owned by Earl Gott and others, which is colored brown on a large map of the entire area which was filed as an exhibit and [152 W.Va. 96] made a part of the record in the case. At the time of the trial, George A. Morton testified that he had an option to purchase the area shown in brown on the map, either in the name of the Roselawn corporation or in his own name as an individual, or in behalf of his wife and himself as individuals, and, in either event, to incorporate it in and make it a part of the entire cemetery...

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96 practice notes
  • Woodrum v. Johnson, No. 28857.
    • United States
    • Supreme Court of West Virginia
    • 12 Diciembre 2001
    ...Syl. pt. 6, in part, DeVane v. Kennedy, 205 W.Va. 519, 519 S.E.2d 622 (1999) (quoting syl. pt. 1, Sanders v. Roselawn Mem'l Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968)); see also Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 604, 390 S.E.2d 796, ......
  • DeVane v. Kennedy, No. 25206.
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 1999
    ...courts. When a matter has thus been put at rest, it should not be disturbed except for grave cause.'" Sanders v. Roselawn Mem'l Gardens, 152 W.Va. 91, 104, 159 S.E.2d 784, 792-93 (1968) (quoting Janney v. Virginian Ry. Co., 119 W.Va. 249, 252, 193 S.E. 187, 188 Having enunciated the standar......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 2010
    ...of contract is not superior to the general welfare of the public). Moreover, in Syllabus Point 1 of Sanders v. Roselawn Memorial Gardens, 152 W.Va. 91, 159 S.E.2d 784 (1968), this Court said: “The law favors and encourages the resolution of controversies by contracts of compromise and settl......
  • Freeman v. Poling, No. 16316
    • United States
    • Supreme Court of West Virginia
    • 20 Diciembre 1985
    ...the evidence plainly and decidedly preponderates against such finding." Syllabus Point 8, Sanders v. Roselawn Memorial Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968).' Syllabus Point 1, Trenton Construction Company, Inc. v. Straub, 172 W.Va. 734, 310 S.E.2d 496 We find no error in the c......
  • Request a trial to view additional results
96 cases
  • Woodrum v. Johnson, No. 28857.
    • United States
    • Supreme Court of West Virginia
    • 12 Diciembre 2001
    ...Syl. pt. 6, in part, DeVane v. Kennedy, 205 W.Va. 519, 519 S.E.2d 622 (1999) (quoting syl. pt. 1, Sanders v. Roselawn Mem'l Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968)); see also Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 604, 390 S.E.2d 796, ......
  • DeVane v. Kennedy, No. 25206.
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 1999
    ...courts. When a matter has thus been put at rest, it should not be disturbed except for grave cause.'" Sanders v. Roselawn Mem'l Gardens, 152 W.Va. 91, 104, 159 S.E.2d 784, 792-93 (1968) (quoting Janney v. Virginian Ry. Co., 119 W.Va. 249, 252, 193 S.E. 187, 188 Having enunciated the standar......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 2010
    ...of contract is not superior to the general welfare of the public). Moreover, in Syllabus Point 1 of Sanders v. Roselawn Memorial Gardens, 152 W.Va. 91, 159 S.E.2d 784 (1968), this Court said: “The law favors and encourages the resolution of controversies by contracts of compromise and settl......
  • Freeman v. Poling, No. 16316
    • United States
    • Supreme Court of West Virginia
    • 20 Diciembre 1985
    ...the evidence plainly and decidedly preponderates against such finding." Syllabus Point 8, Sanders v. Roselawn Memorial Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968).' Syllabus Point 1, Trenton Construction Company, Inc. v. Straub, 172 W.Va. 734, 310 S.E.2d 496 We find no error in the c......
  • Request a trial to view additional results

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