Stanardsville Volunteer Fire Co., Inc. v. Berry

• Decision Date: 14 June 1985
• Docket Number: No. 820507,820507
• Citation: 331 S.E.2d 466,229 Va. 578
• Parties: STANARDSVILLE VOLUNTEER FIRE COMPANY, INCORPORATED v. David F. BERRY, et al. Record
• Court: Virginia Supreme Court

Page 466

331 S.E.2d 466

229 Va. 578

STANARDSVILLE VOLUNTEER FIRE COMPANY, INCORPORATED v. David F. BERRY, et al.

Record No. 820507.

Supreme Court of Virginia.

June 14, 1985.

C. Waverly Parker, Stanardsville, (Robert L. Bushnell, Wise, on brief), for appellant.

Daniel R. Bouton, Stanardsville, (L.B. Chandler, Jr., Puryear, Chandler & Early, Stanardsville, on brief), for appellees.

Present: All the Justices.

RUSSELL, Justice.

This appeal arises out of a protracted controversy concerning the location of an easement. The dispositive question is whether the court erred in transferring an action of trespass to chancery, depriving the plaintiff of the right of trial by jury. Because we must reverse on procedural grounds, the factual background requires only brief discussion.

In 1965, the Stanardsville Volunteer Fire Company, Incorporated (Fire Company), purchased a parcel of land containing .84 acres along the north side of Route 33 in the Town of Stanardsville from parties named Huff. In the conveyance, the Huffs reserved the following easement for the benefit of their remaining lands, which lay north of the parcel conveyed to the Fire Company:

The grantors expressly reserve unto themselves, their heirs, assigns, and transferees a 20 foot right of way across said property leading north from U.S. Highway No. 33 and parallel to the Grover C. Morris boundary line to the retained lands of the said parties of the first part. The reservation of this easement is intended as a perpetual easement to run with the land. This 20 foot right of way adjoins the Grover C. Morris property and is parallel thereto being located on the eastern portion of the property herein conveyed. The grantee, Stanardsville Volunteer Fire Company, Inc., shall also have perpetual and joint use of this right of way.

The Grover C. Morris line constitutes the eastern boundary of the parcel conveyed.

Subsequently, the Fire Company erected its fire house on the .84-acre lot, facing Route 33, and David F. Berry and Doris M. Berry, his wife, acquired the Huff farm to the north, thus becoming the Huffs' successors in title and interest to the 20-foot easement.

The easterly 20 feet of the .84-acre lot, which was encumbered by the recorded easement, has been virtually impassable until the present time because of its elevation high above the grade of Route 33, resulting in a steep bank at the edge of the highway. It was, at the time of trial, partially obstructed by trees.

Soon after it acquired the .84-acre lot, the Fire Company cleared and graded a level area, west of the 20-foot strip, as a parking lot, with an entrance from Route 33. The entrance occupied a small part of the southwesterly corner of the 20-foot strip, which was cut down to ease the grade.

In 1968, a corporation then partially, and later entirely, owned by David F. Berry was engaged in developing a subdivision on a part of the Huff farm north of the Fire Company lot. The corporation laid a gravel base, 10-12 feet wide, from the Fire Company parking lot, through the Fire Company's land to its northerly line, added gravel to the Fire Company's entrance drive from Route 33, removed a fence which ran along the northerly boundary of the Fire Company's lot, and began to use the road thus formed for ingress and egress across the Fire Company's property. Later, the Berrys began to use the residue of the Huff property for farming operations and continued to use the road for that purpose. Although the road occupies the southwesterly and northwesterly corners of the 20-foot strip, most of its length runs through the Fire Company lot entirely west of and outside the 20-foot strip.

A protracted series of negotiations, not pertinent here, ensued between the Fire Company and the Berrys. On September 15, 1980, the Fire Company brought matters to a head by erecting a barbed-wire fence parallel to, and 22 feet west of, the Grover Morris line, completely obstructing the existing gravel road. David F. Berry responded by personally removing those parts of the fence which obstructed the road, using a farm tractor.

On October 14, 1980, the Fire Company initiated this proceeding as a motion for judgment seeking compensatory and punitive damages against David F. Berry for trespass upon and damage to its property lying west of the 20-foot strip. The court sustained a demurrer and the Fire Company, with leave of court, filed an amended motion for judgment. Berry filed a "petition for temporary injunction" in the Fire Company's action at law. The Fire Company moved to dismiss it, on the ground that injunctive relief was not available in an action at law. Berry thereafter abandoned the petition.

On January 20, 1981, Berry filed an independent bill of complaint on the chancery side of the court, praying for a temporary injunction to restrain the Fire Company from interfering with his continuing "use and enjoyment of the existing outlet road currently located on the property of the [Fire Company]."

On March 3, Berry filed motions in the chancery cause for leave to amend the bill to seek a permanent injunction and also to transfer the Fire Company's action at law to the chancery side of the court and to consolidate the two cases. On April 13, over the Fire Company's objection, the court granted these motions and ordered that the Fire Company's action at law be transferred to equity and consolidated with Berry's suit for injunction.

David F. Berry, now joined by his wife Doris M. Berry, filed an amended bill of complaint in three counts. Count I alleged that an easement by implication or by express reservation, over the existing outlet road, was vested in the Berrys. The Berrys later abandoned the claim of easement by implication and the court struck the evidence respecting express reservation. Count II alleged that the Berrys were entitled to an easement by estoppel, based upon the Fire Company's consent to the present location of the road and the Berrys' improvements thereon and continued use thereof with the Fire Company's acquiescence. Count III alleged that the Fire Company had given the Berrys an irrevocable license to use the existing road. The Fire Company demurred to all counts. The court overruled the demurrers and ordered the Fire Company to file responsive pleadings.

The Fire Company filed eight separate pleas to Count II and nine to Count III, demanding jury trial on each. The Berrys moved to strike all the pleas as to Count II as insufficient. The court granted the motion and struck all pleas as to Count II and two of the pleas to Count III. The court's order, entered July 14, directed the Fire Company to "file its further pleadings in response to ... Count Two of the Amended Bill of Complaint, including an answer, within twenty-one days of the date of this Order." The order set Count II for trial on September 14, 1981, ore tenus, but did not set Count III. The court took the position, with which counsel expressed no serious disagreement, that the issues in Count III were subsumed in those raised by Count II and that the trial would prove dispositive of all issues remaining in the case.

Within the 21 days fixed by the order of July 14, the Fire Company filed an answer and four "further pleas" to Count II, each ending with the traditional formula invoking the right of jury trial: "AND OF THIS the [Fire Company] puts itself upon the Country." The first plea stated that the Fire Company had never consented to any location of the road outside the 20-foot strip; the second stated that the Fire Company had not interfered with the use or location of any roadway to which it had ever consented; the third alleged that it had never consented to any location of the roadway which it had later blocked; the fourth alleged that it had never consented to any easement in the Berrys over the existing road.

On August 21, the court sustained the Berrys' motion to strike the four "further pleas" on the ground that they were "not timely filed" and because "they do not present a single factual issue for determination by a jury; [and] that such pleas, even if true, would not result in an end to the litigation regarding Count II."

The case was tried ore tenus on September 14-16 and taken under advisement on briefs. After further oral argument, the chancellor ruled that the location of the easement had been changed from the 20-foot strip to the present location of the road by virtue of the Fire Company's express or implied consent. The court entered a decree on December 18, 1981, declaring that the Berrys were the beneficiaries of an easement, 20 feet wide, along the outlet road as it existed on the Fire Company's property on September 15, 1980, and enjoining the Fire Company from any interference with its use. We granted the Fire Company an appeal.

Code § 8.01-270 provides, in pertinent part:

No case shall be dismissed simply because it was brought on the wrong side of the court, but whenever it shall appear that a plaintiff has proceeded at law when he should have proceeded in equity, or in equity when he should have proceeded at law, the court shall direct a transfer to the proper forum,....

This statute applies only where a plaintiff has erroneously brought his case on the wrong side of the court. It furnishes no authority for a transfer where the plaintiff has invoked the proper forum. Quick v. Southern Churchman Co., 171 Va. 403, 415, 199 S.E. 489, 494 (1938). Because trespass quare clausum fregit fell within one of the original nine common-law forms of action, the Fire Company brought its action on the proper side of the court, and the court erred in transferring the action to equity over the Fire Company's objection.

The Constitution of Virginia, art. I, § 11, provides in pertinent part: "That in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred." This provision is inapplicable to those proceedings in...