Tufts v. Copen

• Citation: 37 W.Va. 623,16 S.E. 793
• Parties: TUFTS. v. COPEN et al.
• Decision Date: 02 February 1893
• Court: West Virginia Supreme Court

16 S.E. 793

37 W.Va. 623

TUFTS.

v.COPEN et al.

Supreme Court of Appeals of West Virginia.

Feb. 2, 1893.

Married Woman —Grant of Easement in Separate Lands—Statute op Frauds—Estoppel.

1. Where a married woman, who is the owner of a tract of land lying on a creek, for a valuable consideration, gives her verbal assent that a party may build a tramroad along said creek, through her said lands, for the purpose of transporting timber from lands lying above hers to market, and in pursuance of said verbal assent said party, at considerable expense, under her immediate observation, constructs such road, and operates the same for some time, a court of equity will restrain her, by injunction, from obstructing said road, and thereby defeating its use as aforesaid.

2. A married woman, being entitled, under our statute, to receive the rents, issues, and profits of her separate estate, and to enjoy the same free from the control or disposal of her husband, as if she were a single woman, necessarily has the control of said rents and profits herself, and may make such lawful contracts and agreements as will enable her to receive and enjoy such rents and profits.

(Syllabus by the Court.)

Appeal from circuit court, Wirt county; A. I. Boreman, Judge.

Bill for injunction by E. L. Tufts against Mary E. Copen and another. Defendants had decree, and plaintiff appeals. Reversed.

John A. Hutchinson, for appellant.

J. O. Nigh, for appellees.

English, P. This was a suit in equity brought in the circuit court of Wirt county, by E. L. Tufts against Mary E. Copen and H.P. Copen, on the 9th day of August, 1890, to enjoin and restrain the defendants from in any manner interfering with his alleged right to the free and uninterrupted use and possession of a certain tramroad, and his operating cars thereon, for the transportation of freight and timber through, along, and upon a certain tract of land owned by said Mary E. Copen. The facts on which the plaintiff in his bill bases his claims for relief, as set forth in his bill, are, in substance, as follows: In the spring of 1889 he intended to construct a line of tramroad up Standing Stone creek, —a stream that empties into the Little Kanawha river, in said county of Wirt, for the purpose of transporting staves and other products of timber to market, and also for the purpose of transporting merchandise and such other freights as might be offered. That the said Mary E. Copen was a married woman, and the owner of a tract of land through which the said Standing Stone creels flows. That in the month of April, 1889, he made an agreement with the said Mary E. Copen by which, in consideration of the sum of $25 cash paid, she agreed that he might construct and operate a tramroad along said creek, through and over her farm situated thereon. That he gave her his check for that amount on the First National Bank of Parkersburgh, W. Va., payable to said Mary E. Copen or order, which check was given in full for right of tramroad, as per agreement; and she received said check, indorsed the same, and drew the money thereon, and used the same. That relying upon said contract, and upon the payment of said cash to the said Mary E. Copen, he constructed a line of tramroad along said Standing Stone creek, with the full knowledge, approval, and consent of the said Mary E. Copen and her husband, and spent a considerable sum of money in constructing said tramroad for use. That $25 was adequate and ample compensation for said tramroad. That it did not damage the lands of said Mary E. Copen, or injure her in any manner whatever, but was really a benefit to her farm, and that she stated it would benefit the farm by protecting the banks of the creek. A copy of said check was exhibited with the plaintiff's bill. That after said tramroad was constructed through her land, and ready for operation, he permitted the same to be used by the Standing Stone Railway Company, of which he was president and manager, and that he, through the said company, had enjoyed peaceable and uninterrupted possession of said tramroad, so constructed through the said lands of said Mary E. Copen, from the 7th of April, 1889, until recently. That by reason of said agreement, and the payment of said money, he acquired an easement therein, and had a right to operate said tramroad over, through, and upon said land, which easement is perpetual. That within the last few days before the filing of said bill the said Mary E. Copen and her husband, the said H. P. Copen, had obstructed said tramroad, and denied the plaintiff the use thereof, and had built a fence across the same, and by threats of violence had prevented plaintiff from having the full and free use and enjoyment of said easement. That, relying on said easement, he expended money upon the construction of said tram-road, and has acquired contracts for the shipment of large quantities of ties, staves, timber, and merchandise over said railway by said company, and had been engaged in transporting large quantities of the same, without objection from the defendants until within the last few days, and that defendants are now denying the plaintiff the privilege of using said tram-road for the purposes for which it was constructed. That the said H. P. Copen is a person worthless in his habits, void of character, and has no financial standing or visible property, and that a judgment for damages could not be collected off of him, for the smallest amount. That the said defendants are acting in defiance of their agreement, and that, if they are permitted to obstruct him in the use of the easement so acquired through said land, he will suffer irreparable loss, injury, and damage. That he is remediless at law. That the said H. P. Copen is absolutely insolvent, and the defendant Mary E. Copen is a married woman; and that he has no outlet or way to get to the Little Kanawha river with his freight, save and except across said tract of land, upon said tramroad, contracted and paid for by him. The check, a copy of which was exhibited With said bill, was drawn by E. L. Tufts on the First National Bank of Parkersburgh, in favor of Mary E. Copen or order, for $25, dated April 7, 1889.and stated on its face that it was in full for right of tramroad as per agreement, and was indorsed by Mary E. Copen and H. P. Copen, and was also indorsed by M. R. Lowther to W. H. Wolfe, cashier, and a memorandum indorsed thereon as follows: " Paid April 23, 1889. Parkersburgh, W. Va." The defendants demurred generally to said bill, and for special cause of demurrer said that by his bill the plaintiff shows clearly that he is not entitled to the relief prayed for, in this: that he has no agreement for the use of the land he claims to use, in writing; that the same is only verbal, and good and valid only for one year from April 17, 1889. The defendants, M. E. Copen and H. P. Copen, filed their answer to said bill, putting in issue the allegations thereof. Quite a number of depositions were taken' both by plaintiff and defendant, and on the 19th day of June, 1891, a decree was rendered in the case dissolving the injunction which had been awarded the plaintiff on the 8th day of August, 1890, and dismissing his bill, with costs; and from this decree the plaintiff applied for and obtained this appeal.

The counsel for the defendants, in their brief, do not insist upon their demurrer, and the question therein raised is also raised by the answer, to wit, whether a writing or deed was necessary in order to confer upon the plaintiff the right claimed in his bill, and to avoid the effect of the statute of frauds; and for that reason we may discuss the question in considering the case upon the law and the facts.

The first question I shall examine is whether the defendant Mary E. Copen, being a married woman, had the right to grant the license or easement mentioned in the plaintiff's bill. It is alleged in the bill, and not controverted by the answer, that the defendant Mary E. Copen was the owner of the tract of land through which Standing Stone creek flows, and that she is a married woman. It is also alleged in the bill that the agreement between said Mary E. Copen and the plaintiff was, in consideration of $25 cash paid, that he might construct and operate a tramroad along said creek, through and over her farm, and that relying upon said con tract, and the payment of said money, he constructed said tramroad along said creek, with the full knowledge, approval, and consent of said Mary E. Copen and her husband; and the weight of the evidence in the case sustains these allegations. This transaction cannot be regarded as either a sale or conveyance of said tract of land, or any part thereof, and for that reason it was unnecessary that her husband should join with her in making the contract. Under section 1 of chapter 66 of the Code of 1887, she was entitled to the rents, issues, and profits of her land as if she were a single woman; and we hold that the money received by her for this license or easement might well be included in the general expression, "rents, issues, and profits of her land." While it is true that the agreement set forth in the bill could hardly be called a lease, yet the money received by her for the privilege of passing along said creek over her land would be classed as an issue or profit arising therefrom; and it is difficult to perceive bow she could acquire the issues and profits of her separate estate unless she was...