Stuart v. Lake Washington Realty Corp.

• Decision Date: 28 May 1956
• Docket Number: No. 10743,10743
• Court: West Virginia Supreme Court
• Parties: Lola L. STUART et al. v. LAKE WASHINGTON REALTY CORPORATION et al.

Page 891

92 S.E.2d 891

141 W.Va. 627

Lola L. STUART et al. v. LAKE WASHINGTON REALTY CORPORATION et al.

No. 10743.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 24, 1956.

Decided March 14, 1956.

Dissenting Opinion May 28, 1956.

Syllabus by the Court.

1. The law does not favor the creation of easements by implied grant or reservation.

2. The general rule is that there is no implied reservation of an easement when an owner conveys a part of his land over which he has previously exercised a privilege for the benefit of the land which he retains unless the burden upon the land conveyed is apparent, continuous and necessary for the enjoyment of the land retained.

3. 'To raise an implied reservation or grant of an easement the existing servitude must at the time of the deed be apparent, continuous and strictly necessary.' Point 1, syllabus, Miller v. Skaggs, 79 W.Va. 645 .

4. The general rule in equity is that mere lapse of time, unaccompanied by circumstances which create a presumption that the right has been abandoned, does not constitute laches.

5. 'If the right of the plaintiff is clear and not dependent upon oral evidence, and no injury or prejudice to the defendant has resulted from the delay, as by the death of parties, change of conditions, loss of evidence, or the like, the cause of action is not barred by laches, unless the lapse of time and the circumstances are such as to raise a presumption of intent, on the part of the plaintiff, to abandon or relinquish the right.' Point 8, syllabus, Depue v. Miller, 65 W.Va. 120 [64 S.E. 740, 23 L.R.A.,N.S., 775].

6. 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.

7. To raise an equitable estoppel there must be conduct, acts, language or silence amounting to a representation or a concealment of material facts.

8. 'Knowledge of a trespass or wrong perpetrated by one fully cognizant of the right invaded and silence respecting it after notice do not estop the injured party from asserting his right of action for redress of the injury done.' Point 6, syllabus, Carroll-Cross Coal Company v. Abrams Creek Coal and Coke Company, 83 W.Va. 205 .

9. The equitable doctrine of the balance of conveniences should not be applied when the acts complained of are wilful, wanton and unprovoked, or are tortious, and the plaintiff seeks to preserve a clear property right.

10. The finding of fact of the trial chancellor will not be disturbed on appeal unless such finding is clearly wrong or against the preponderance of the evidence.

11. Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.

Spilman, Thomas, Battle & Klostermeyer, R. S. Spilman, Jr., Frank T. Litton, Charleston, for appellants.

V. K. Knapp, Winfield, for appellees.

HAYMOND, Judge.

In this suit in equity instituted in the Circuit Court of Putnam County in June, 1949, the original plaintiffs, Lola L. Stuart and Laura Harmon, sought an injunction to prevent the defendants, Lake Washington Realty Corporation, a corporation, and Forest Lake Club, a corporation, from causing or permitting the lands of the plaintiffs to be flooded and inundated by the overflow of water from a nearby lake owned or operated by the defendants and to compel the defendants to remove from the lands of the plaintiffs the water impounded upon their lands from the lake of the defendants and to take such action as is necessary to prevent floods and inundations upon the lands of the plaintiffs during periods of freshets and ordinary floods.

The case was heard and determined by the circuit court upon the bill of complaint of the plaintiffs and the exhibit filed with the bill of complaint, the separate answer and cross-bill of the defendant Lake Washington Realty Corporation by which it denied the material allegations of the bill of complaint and, as affirmative relief, sought to require the plaintiff Lola L. Stuart to convey to it the land owned by her upon payment to her of the purchase price paid by her or her husband, C. W. Stuart, for such land, the separate answer of the defendant Forest Lake Club, the special replication of the plaintiffs to the separate answer and cross-bill of the defendant Lake Washington Realty Corporation, the intervening petition of numerous persons owning lots or parcels of land or an interest in lots or parcels of land in the subdivision operated and developed by the defendant Lake Washington Realty Corporation, certain stipulations by the respective parties, the depositions of numerous witnesses produced by the respective parties between February 10, 1950, and October 5, 1950, and the exhibits filed with the depositions.

Before the case was submitted for final decision settlement was effected between the plaintiff Laura Harmon and the defendants and by decree entered December 14, 1950, this suit was dismissed as to her claim.

By final decree entered January 29, 1955, which filed the written opinion of the circuit court dated March 29, 1951, the circuit court, being of the opinion that the plaintiff Lola L. Stuart was entitled to the relief prayed for in her bill of complaint, permanently enjoined and restrained the defendants from causing the land of the plaintiff Lola L. Stuart containing 2.9 acres, on which is located a one story frame dwelling in which she resides, to be flooded and inundated and required the defendants to lower the level of the lake from its present height of twenty feet to seventeen and one-half feet by reducing to the extent of two and one-half feet the height of the dam impounding the water of the lake, and required the defendants to maintain the lake at the level of the dam as so lowered. After the circuit court had announced its decision to grant the injunction but before the decree was entered it denied the motion of the defendants that damages be awarded to the plaintiff Lola L. Stuart in lieu of an injunction and the motion of the defendants that the injunction be limited or modified to the extent that the defendants should be permitted to remove the water from the land of the plaintiff by the construction, within a reasonable time to be designated, of dams or dikes or other barriers on the land of the defendants which would prevent the encroachment of the water upon her land and upon its removal by that method the defendants should not be required to lower the level of the lake. From the decree awarding the injunction this Court granted this appeal upon the petition of the defendants.

As the main controversy involves the conflicting claims of the plaintiff Lola L. Stuart and the defendant Lake Washington Realty Corporation, she will be referred to as the plaintiff and it will be generally referred to as the defendant in this opinion.

There is little, if any, dispute in the material facts disclosed by the record except those facts which relate to the cause of the temporary and recurrent inundation of the land of the plaintiff with water from Hurricane Creek during periods of heavy rainfall in the area through which Hurricane Creek flows. With respect to that question the evidence is conflicting. The plaintiff contends, and the testimony of witnesses introduced in her behalf tends to show, that her land is temporarily and recurrently inundated at frequent intervals and that the cause of the inundation of her land which has several times occurred between June 8, 1947 and September 22, 1950, was the action of the defendant in increasing the height of the dam from sixteen feet to its present height of twenty feet. On the contrary the defendants assert, and the testimony of witnesses produced in their behalf tends to show, that the elevation of the dam to its present height of twenty feet did not cause or contribute to the periodic inundation of the land of the plaintiff but that the cause of the temporary and recurrent overflow of water on her land was the relocation of United States Route 60 by the State Road Commission of West Virginia and the construction by it of the Buff Creek road upon a culvert containing two openings of the width of twelve feet each which together substantially restricted the width of the basin of Hurricane Creek and obstructed the flow of its water in its ordinary course at and above the location of the culvert.

Sometime in 1937 C. W. Stuart, the husband of the plaintiff to whom she was married in 1944, organized a corporation by the name of Stuart Lakes, Inc., for the purpose of creating and developing a real estate subdivision or addition on both sides of Hurricane Creek about midway between Charleston and Huntington in Curry District in Putnam County. According to the original plan formulated by Stuart the subdivision was to contain a large artificial lake of approximately sixty acres which was to be surrounded by approximately seven hundred lots many of which were to front on the lake. Hurricane Creek in the area of the subdivision flows west and the general course of the stream is from east to west. In 1937 United States Route 60 was located near to and north of the creek and extended through a part of...