Wiley v. Ball
| Decision Date | 23 September 1913 |
| Citation | 79 S.E. 659,72 W.Va. 685 |
| Parties | WILEY et al. v. BALL et al. |
| Court | West Virginia Supreme Court |
Submitted February 27, 1912.
Syllabus by the Court.
A devisee cannot take under one provision of a will and deny the validity of another provision thereof.
The mere reservation of a right of way, by a testator, over land given one devisee, for ingress to and egress from land given another, confers no right to the exclusive use of the soil over which the way may be located, but creates only an easement, and the way cannot be enclosed by fences against the wishes of the servient tenant.
No obligation rests upon the land owner to fence the way in which another has simply an easement.
The servient tenement cannot be burdened with the occupancy of a greater width than is reasonably necessary for the uses for which a right of way thereover is reserved as an easement where no width is defined in the reservation.
Appeal from Circuit Court, Mason County.
Action by Millie C. Wiley and others against J. Robert Ball and others. From judgment for defendants, plaintiffs appeal. Modified and affirmed.
Rankin Wiley, of Point Pleasant, for appellants.
Elmer L. Stone, of Ripley, and John E. Beller, of Point Pleasant for appellees.
Plaintiff by this suit sought a partition of land in conformity with the provisions of the will of her father, devising the land to her and the children of her brother. By that will plaintiff was given the "front part" of the land and the other devisees, defendants herein, were given the "back or east part." The will definitely stated just where the division line should be run. It also provided that "a right of way is reserved through the front tract to the public road." Plainly from the terms of the instrument this reservation of a right of way was for the use of the back part of the land. It was clearly devised in connection with the devise of that portion. Plaintiff not only prayed for a partition under the will but also for a marking out and establishing of the right of way. By a decree in the cause the lands were partitioned, and plaintiff in her petition for an appeal and in her brief expresses entire satisfaction with the division which has been made. A subsequent decree established a way fifteen feet wide through the front part which was given plaintiff, and imposed conditions on her in regard thereto. It is of this decree alone that she complains. By the decree plaintiff is required to build and maintain a fence along one side of the way, and defendants are required to build and maintain the way and a fence along the other side. Further, the decree allows plaintiff, at her own expense, to build and maintain gates or bars at such points in the fences as she may desire.
The testator in fact only owned an undivided one-half interest in the land though he dealt with it in making the devise as if he owned the whole. He had only the curtesy in the other undivided one-half interest through right of his deceased wife. So plaintiff submits that he had no power to make the devise of a reservation of right of way through land not wholly owned by him. Plaintiff urges this as a ground against the...
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