Wabben and wife v. Syme.

• Decision Date: 02 March 1874
• Citation: 7 W.Va. 474
• Court: West Virginia Supreme Court
• Parties: Wabben and wife v. Syme.

7 W.Va. 474

Wabben and wife

v.Syme.

Supreme Court of Appeals of West Virginia.

March 2, 1874.

1. A writing between parties, signed and sealed, by which the owner; of a lot and the owners of other adjacent lots, agree that the latter, who sinks a well on the lot of the former, shall have access to it forever, and may use water from it, at all times the writing not indicating that the parties contemplate any further assurance is a present grant of the right to use the well.

2. Such a deed, though containing no express declaration that the right granted shall pertain to the adjacent lots, but providing that neither of the grantees shall dispose of the easement, unless at the same time he shall dispose of his lot, by implication, annexes the servitude to the respective lots, as an easement appurtenant to each.

3. Intrinsic certainty, in a deed relative to specific property, is impossible. The description can be made certain only by proof or recognition of the identity of the subject to which it relates, or other objects or things that more or less directly and distinctly indicate and determine it. And, in the application of deeds and other documents to lands and lots, extensive latitude is allowed for the discovery and proof, not only of visible monuments or objects mentioned, but of mathematical lines of other lands and lots, and various classes of facts, to which the description or suggestions in the document may appl.

4. The certainty of a deed is determined by the prineiples of the common law. The recordation is regulated by the statute alone.

5. Under the law before the year 1819, when a deed was recorded it was as valid and effectual, as to all persons, as if there had been no legislation requiring recordation. But, if, before that time, there had been doubt on the subject, by section four, of chapter ninety-nine, of the Eevised Code, adopted in that year, the validity of the deed, when recorded, was plainly declared.

6. "YVhencYcr the holder of land made a deed for the conveyance of an estate or the creation of a servitude or easement upon it, thatwas valid and effectual, as to the alienor, the deed, when duly admitted to record, became alike valid and effectual to pass the estate or create the servitude, as to any subsequent purchaser of the land, from him, for valuable consideration without notice, and as to all other persons.

7. The opinion of the Court of Appeals of Virginia, expressed in the case of Mundy v, Vaurlcr, and other cases considered with it, (8 Gratt, 518 see 545,) that a deed executed in 1805, for all the es_ taie, both real and personal of the grantor, because of the want of designation and description ot the lands intended to be conveyed, was not notice, in point of law, to a subsequent purchaser from the grantor, of the existence of the deed, but that the proof of notice must be such as to affect the conscience of the purchaser; though in its application to the peculiar circumstances of that ease, not questioned, is as a general proposition, disapproved.

8. The clerk of a court, under the supervision of the court, must ascertain the papers tiled in a case or referred to in the order book as a part of the record: Though where the papers are identified, whether they may be considered as properly a part of the record, the court alone decides.

9. A recital in a deed, under the bankrupt act of 1841, that a person

was, by the United States District Court declared a bankrupt, and that the grantor was assignee and was ordered to sell the property granted, is not evidence of the facts recited, against a person claiming the property otherwise than through or under the grantor.

10. A recital in a deed of partition that a person died, and that the parties to the deed are his heirs, is not evidence of these facts against strangers.

11. Generally, parol evidence, though not excepted to when it is offered or afterwards, is not competent to prove the contents or effect of a deed.

12. Generally, a person can not be disturbed in the possession or enjoyment of property or held responsible for an act done relating to it, by any person not entitled to the property, or its possession or enjoyment.

13. A provision in a deed, creating a servitude upon an estate and annexing it to another estate, as an easement appurtenant to the latter, declaring that the grantee shall not dispose of the easement separately from the property to which it is annexed, is not a restraint upon alienation that is objectionable.

14. A conveyance of property to which an easement is appurtenant, and without which the easement cannot be granted, made by an assignee in bankruptcy, implies the transfer of the easement with the property Notwithstanding it does not appear that the use of the easement was necessary to the enjoyment of the property, or that at the time of the conveyance the easement was, in fact used with the property.

15. When, by direct proof of a grant, or other sufficient evidence, an easement has been conclusively established, there may le proof of an act or declaration of the owner, indicative of renunciation or abandonment, followed by non-use for a period long enough to bar an action of ejectment to recover the possession of the land; which, when the defendant is not under disability, is ten years. and when he or she is under disability, is twenty years: Or proof of a claim by the owner of the corporeal estate, or another in his stead, known to the owner of the easement, or evinced by acts that, in the exercise of ordinary vigilance he would have learned, followed by non-use by the owner for such period: Or an act or declaration by the owner of the easement, clearly demonstrative of actual abandonment of the easement, that, in fact, promotes some action on the part of another, by which, if the easement were not held to be determined, the latter would be seriously injured: And such proof may conclude the extinguishment of the easement. But nothing less than the one or the other of these combinations of facts, will have such effect. The limited right of a husband in the inheritance of his wife, may, by such acts and declarations, be affected for the time of its duration as the right of any other person.

16. Section thirty-six of chapter one hundred and twenty-live of the Code, which provides that every material allegation in a bill not eontroverted by the answer, shall, for the purposes of the suit, be taken as true, does not require a more special denial than was sufficient before its adoption. But, as formerly, the plaintiff, upon proper allegations, may interrogate the defendant, and then he will be required to answer each proper interrogatory. If the defendant does not answer properly, the plaintiff may except to the answer. When, however, he fails to do so, a general denial of the allegations of the bill, will make it necessary that the plaintiff shall prove the facts alleged and so controverted, that are in their nature affirmative.

17. A court of equity, upon a formal hearing, decrees that the defendant remove obstructions to a well which the plaintiff claims the right to use, so as to afford the plaintiff access to the well at all times, unless and until otherwise ordered by the court; and that if the obstruction be not removed within ten days, the sher- iff, upon application of the plaintiff, shall remove it; and that an injunction previously awarded, inhibiting the defendant from obstructing the plaintiffs using the well till the rights of the claimants could be settled, shall be "continued," and that an account of the expenses of repairing the well be taken: And the court, on a final hearing, dismisses the bill: the former decree was merely interlocutory; and the dismissal of the bill dissolves the injunction.

18. When the plaintiff, in a bill alleges sufficient cause for making-one person a defendant, but not for making others such, and seeks no relief, takes no decree nisi, and proves no right to relief against the latter, who make no defence, and the case being matured as to a proper defendant, the plaintiff acquiesces in a hearing; and the bill is dismissed generally; the plaintiff, upon appeal, has no right on that account, to have the decree reversed.^*

Appeal by Uriah N. Warren and, Mary Ann, his wife, from a deeree of the circuit court of Greenbrier county, dismissing complainant's bill, rendered on the 28th day of April, 1871, in a suit in chancery therein pending, wherein said Warren and wife were complainants and Samuel A. M. Syme, Renick R. Dickson, St. Clair Johnson, Mark L. Spotts and Mrs. Leonard were respondents. The other material facts appear in the opinion of the Court,

The Hon. Henry L. Gillaspie, judge of the thirteenth judicial circuit, presided at the hearing below. Price & Sperry, for the appellants. Adam C. Snyder, for the appellee, Syme.

Hoffman, Judge:

In September 1869, William H. Church and Uriah N. Warren and Mary Ann Warren, his wife, exhibited their bill in equity against Samuel A. M. Syme, Renick R. Dickson, St. Clair Johnson, Mark L. Spotts and Mrs. Leonard; in which the plaintiffs allege:

That, in October 1833, an article of agreement was entered into between William S.Littlepage of the first part, and Cyrus Walker, Samuel B. Keenan, Edward Fife, Thomas Welch, Calvin P. Hogshead and George Rapp of the second part, which was duly acknowledged and recorded; in which it was recited, that Littlepage had before agreed that if the other parties would, at their joint expense, sink a well on his lot south of the turnpike, the other parties, as also Littlepage himself, might have free access to the well, themselves, their heirs and and assigns; and in pursuance of the agreement the other parties had dug the well: And then, by the covenant, Littlepage bound himself, his heirs and assigns, to and with the other parties, that they, their heirs and assigns, should then and forever have free access to the well; to to have and to take at all times and upon all occasions water from the...