Shrewsbury v. Humphrey

• Decision Date: 20 July 1990
• Docket Number: No. 19355,19355
• Citation: 395 S.E.2d 535,183 W.Va. 291
• Parties: Howard SHREWSBURY, Jr. and Sybil Shrewsbury, his Wife; Roger Sexton; Douglas Bowling and Lylia Bowling, his Wife, v. Shirley HUMPHREY and Garnett Humphrey, her Husband; Jack White and Valarie White, his Wife; Chris Toler and Patricia Toler, his Wife; Bill Pritchard and Delores Pritchard, his Wife; Judy Hall, Single; Donald Hall; Douglas Davis and Juanita Davis, his Wife. Douglas Ronald DAVIS v. Howard SHREWSBURY, Jr., Sybil Shrewsbury, Roger Blaine Sexton, Doris Jean Sexton, Douglas Bowling, and Unnamed Others Acting Independently or in Concert Therewith.
• Court: West Virginia Supreme Court

Page 535

395 S.E.2d 535

183 W.Va. 291

Howard SHREWSBURY, Jr. and Sybil Shrewsbury, his Wife;

Roger Sexton; Douglas Bowling and Lylia Bowling, his Wife, v. Shirley HUMPHREY and Garnett Humphrey, her Husband; Jack

White and Valarie White, his Wife; Chris Toler and Patricia

Toler, his Wife; Bill Pritchard and Delores Pritchard, his

Wife; Judy Hall, Single; Donald Hall; Douglas Davis and

Juanita Davis, his Wife.

Douglas Ronald DAVIS v. Howard SHREWSBURY, Jr., Sybil Shrewsbury, Roger Blaine

Sexton, Doris Jean Sexton, Douglas Bowling, and

Unnamed Others Acting Independently or

in Concert Therewith.

No. 19355.

Supreme Court of Appeals of West Virginia.

July 20, 1990.

Syllabus by the Court

1. " 'The open, continuous and uninterrupted use of a road over the land of another, under bona fide claim of right, and without objection from the owner, for a period of ten years, creates in the user of such road a right by prescription to the continued use thereof. In the absence of any one or all of such requisites, the claimant of a private way does not acquire such way by prescription over the lands of another.' Syl. pt. 1, Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908 (1954)." Syl. pt. 2, Keller v. Hartman, 175 W.Va. 418, 333 S.E.2d 89 (1985).

2. " 'The finding of a trial court upon the facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.' Syl. pt. 7, Bluefield Supply Company v. Frankel's [Frankel's] Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965)." Syl. pt. 1, Burns v. Goff, 164 W.Va. 301, 262 S.E.2d 772 (1980).

Randall Veneri, Anthony Beneri, Princeton, for Howard Shrewsbury, Jr. et al.

R. Thomas Czarnik, Princeton, for Shirley & Garnett Humphrey et al.

PER CURIAM:

The appellants, Douglas Ronald Davis, et al., appeal an order of the Circuit Court of Mercer County entered on February 25, 1988, which held that: (1) the appellees, Howard and Sybil Shrewsbury, had established that they were entitled to a prescriptive easement over the roadway leading from their properties to the Wright Mountain Road; (2) the appellee, Roger Blaine Sexton, had established that he was entitled to an easement by equitable estoppel over the same roadway; and (3) the appellees, Douglas and Lylia Bowling, had acquired their right of usage to the roadway in question through their predecessor in title, Howard and Sybil Shrewsbury.

In 1976, the appellees, Mr. and Mrs. Shrewsbury, purchased approximately 81 acres from Mary Elizabeth Rierison in Mercer County, West Virginia, in an area commonly known as Wright Mountain. At the time Mr. and Mrs. Shrewsbury purchased that real estate, Mrs. Rierison advised them that they had the right to use the roadway that led from their property to the Wright Mountain Road, being State Route 71/12. The roadway in question is located on property owned by the appellant, Douglas Davis. ¹

By deed dated August 2, 1978, Mr. and Mrs. Shrewsbury conveyed 5.05 acres of their property to appellee, Roger Blaine Sexton, Mrs. Shrewsbury's son from a previous marriage. ² Mr. Sexton asked Mr. Davis for permission to use the roadway and offered to help Mr. Davis maintain it. Mr. Davis agreed to allow Mr. Sexton to use the roadway.

Mr. and Mrs. Shrewsbury sold approximately twelve acres of land to the appellees, Douglas and Lylia Bowling, in September of 1987. Mr. and Mrs. Bowling also sought to use the roadway as a means of egress and ingress to their property.

After the Bowlings purchased the property from Mr. and Mrs. Shrewsbury, Mr. Davis constructed a barrier across the roadway to prevent the appellees from using the roadway as a means of access to their property. The appellees then filed a complaint against the appellants, and sought a temporary restraining order and permanent injunction.

By order entered on February 25, 1988, the circuit court ruled that: (1) Mr. and Mrs. Shrewsbury were entitled to a prescriptive easement; (2) Mr. Sexton was entitled to an easement by equitable estoppel; and (3) Mr. and Mrs. Bowling acquired their right of usage to the roadway through their predecessor in title, Mr. and Mrs. Shrewsbury. The circuit court limited the appellees' use of the roadway for the purpose of egress and ingress to their residential properties, and enjoined them from increasing or extending their usage of the roadway beyond what the court had granted. Furthermore, the circuit court directed the appellees to contribute to the maintenance of the roadway, and ordered them not to alter or change the width or course of the roadway or to interfere with the other property owners' use of the roadway.

On February 29, 1988, the appellants filed motions for an amendment of the judgment pursuant to Rule 52(b) of the West Virginia Rules of Civil Procedure, or for a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure. By order dated December 19, 1988, the circuit court denied the appellants' motion, and this appeal followed.

I

The appellants first contend that the circuit court erred in finding that Mr. and Mrs. Shrewsbury had established that they were entitled to a prescriptive easement over the roadway.

The elements necessary to establish a prescriptive easement were stated by this Court in syllabus point 2 of Keller v. Hartman, 175 W.Va. 418, 333 S.E.2d 89 (1985):

'The open, continuous and uninterrupted use of a road over the land of another, under bona fide claim of right, and without objection from the owner, for a period of ten years, creates in the user of such road a right by prescription to the continued use thereof. In the absence of any one or all of such requisites, the claimant of a private way does not acquire such way by prescription over the lands of another.' Syl. pt. 1, Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908 (1954).

Furthermore, the party who asserts the right to a prescriptive easement has the burden of proving such claim as we stated in syllabus point 3 of Keller: " 'The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing evidence.' Syl. pt. 1, Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976)." ³

In the record before us, we find that Mr. and Mrs. Shrewsbury continuously used the roadway as a means of access to their property from 1976 until 1987. When Mr. and Mrs. Shrewsbury purchased their property from Mrs. Rierison in 1976, she represented to them that they had a right to use that roadway as access to the back part of their property. Furthermore, Mr. and Mrs. Shrewsbury used this roadway for over ten years with the knowledge of the adjacent property owners and Mr. Davis, on whose property the roadway is located. On the basis of these facts, we cannot conclude that the trial court erred in ruling that Mr. and Mrs. Shrewsbury had established that they were entitled to a prescriptive easement over the roadway.

II

The appellants also assert that the circuit court erred in finding that Mr. Sexton was entitled to an easement by equitable estoppel.

This Court recognized that an easement may arise by way of estoppel in Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454 (1948). In Cottrell, we recognized that the basic elements of an easement by estoppel are a representation made to a vendee and the reliance thereon. We distinguished between a representation and a promise:

In the law of contracts a representation is 'a statement express or implied made by one of two contracting parties to the other, before or at the time of making the contract, in regard to some past or existing fact, circumstance, or state of facts pertinent to the contract, which is influential in bringing about the agreement.' Black's Law Dictionary, 3rd ed., 1534. A promise is 'a declaration, verbal or written, made by one person to another for a good or valuable consideration, in the nature of a covenant by which the promisor binds himself to do or forbear some act, and gives to the promisee a legal right to demand and enforce a fulfillment.' Black's Law Dictionary, 3rd ed., 1433.

Id. 131 W.Va. at 405, 47 S.E.2d at 461. We further observed in Cottrell that "[a]n oral promise to grant an easement is not sufficient to raise an estoppel in favor of one who has acted upon it. There must be something more than a promise to grant it, even if there was a consideration for the promise, and the promisee has acted upon the promise." (citation omitted). 131 W.Va. at 406, 47 S.E.2d at 461. We recognized that the basis of equitable estoppel is fraudulent or inequitable conduct. Id. 131 W.Va. at 406, 47 S.E.2d at 461. See also Bennett v. Charles Corp., 159 W.Va. 705, 713, 226 S.E.2d 559, 564 (1976).

We stated the general rule governing the doctrine of equitable estoppel in syllabus point 6 of Stuart v. Lake Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956):

The general rule governing the doctrine of equitable estoppel is that in order to constitute equitable estoppel or estoppel in pais there must exist a false representation or a concealment of material facts; it must have been made with knowledge, actual or constructive of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.

Thus, there must be a showing that a representation was made and that the party relied upon that representation before an easement by estoppel can be established.

There was evidence before the circuit court that Mr. Sexton had agreed to purchase a tract of land located a greater distance from Wright Mountain Road so that the Wright Mountain Community Church could purchase a tract of land originally offered to Mr. Sexton. ⁴...