J. W. Feuchtenberger, Esq.
Princeton, West Virginia
Attorney for Appellants
William S. Winfrey, II, Esq.
Princeton, West Virginia
Attorney for Appellees
The Opinion of the Court was delivered PER CURIAM.
1. “A circuit court's entry of a declaratory judgment is reviewed de novo.” Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).
2. “A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.” Syllabus Point 1, Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).
3. “In construing a deed, will, or other written instrument, it is the duty of
the court to construe it as a whole, taking and considering all the parts together, and giving
effect to the intention of the parties wherever that is reasonably clear and free from doubt,
unless to do so will violate some principal of law inconsistent therewith.” Syllabus Point 1,
Maddy v. Maddy, 87 W.Va. 581, 105 S.E. 803 (1921).
Per Curiam:
This case is before this Court upon appeal of a final order of the Circuit Court
of Mercer County entered November 8, 2002. In that order, the circuit court settled a dispute
between the appellants and plaintiffs below, David R. Farley and Janeth B. Farley, and the
appellees and defendants below, Elizabeth H. Farley and Robin L. Farley, with regard to an
easement that provides access by way of a fifty-foot right-of-way to the appellants' 2.03 acre
residential tract as well as access to their 8.9 acre development tract. The circuit court's
order authorized the appellants to widen and develop the roadway at their cost, but reduced
their planned development of sixteen townhouses to ten. The circuit court found that the
appellees' long-term use of the right-of-way as a part of their yard afforded them some voice
in how the road was built and how the appellants' 8.9 acres would be developed so that it
would not burden the existing right-of-way. The circuit court also retained jurisdiction to
later review engineering plans on the appellants' road widening.
In this appeal, the appellants contend that the circuit court erred in limiting
their development to ten townhouses instead of permitting their planned sixteen. Conversely,
the appellees argue that the deed relied on by the appellants granted them an easement
limited to residential family use. After reviewing the facts of the case, the issues presented,
and the relevant statutory and case law, we reverse the decision of the circuit court.
On September 21, 1979, the appellants purchased a 2.03 acre residential tract upon which their home is located. On August 6, 1997, they also procured an adjoining 8.9 acre tract where they now plan to build a townhouse development. To access both properties, the appellants have used two adjoining rights-of-ways that cross the appellees property, one forty feet wide and the other fifty feet wide. On September 20, 1979, the right-of-way in dispute, the fifty-foot right-of-way, was granted to the appellants by a separate deed from the appellees' predecessor-in-title. The September 20, 1979 deed granting the right-of-way for the 2.03 acre tract says it is to be “used for the general purposes of the [appellants] as they see fit.” The deed for the 8.9 acre tract notes that the appellants are to enjoy and have access, ingress, egress over this same right-of way. Currently, only eight feet of the right-of-way is paved while the remainder is used by one of the appellees as a part of her lawn.
Initially, the appellants advised the appellees of their intention to widen the
right-of-way from eight to eighteen feet and to upgrade the ditching and drainage, at their
own expense. The appellees, however, who purchased their land on August 1, 1996,
objected to the appellants' plans and argued that the appellants did not have access to the 8.9
acre tract across the right-of-way except for uses associated with single family residential use
of the appellants' 2.03 acre tract.
On September 21, 2001, the appellants filed a complaint for declaratory
judgment in order to affirm their rights to utilize and widen the existing right-of-way to
accommodate the townhouse units they planned to build on the 8.9 acre tract. The
appellants' appeal rests on the November 8, 2002 order of the Circuit Court of Mercer
County that allows them to widen and develop the roadway at their cost, but orders that they
reduce their planned development of sixteen townhouses to ten townhouse units. The circuit
court also found that the appellees' long-term use of the right-of-way property provided them
some say in how the road was built and how the appellants' 8.9 acres would be developed
so that it would not burden the existing right-of-way. The circuit court then retained
jurisdiction to later review engineering plans on the appellants' road widening.
The principal issue confronting us is whether the circuit court correctly
construed the relevant deeds in the appellants' chain of title in order to reach its conclusions
regarding the limitation on the appellants' proposed construction of townhouses. By a deed
dated September 21, 1979, the appellants purchased a 2.03 acre parcel of real estate to which
an easement was attached providing access to such land through the appellees' property. A
separate deed dated September 20, 1979 specifically and expressly indicated that the
appellants were being granted the right-of-way in question “to be used for the general
purposes of the parties of the second part as they see fit.”
The appellants maintain that given the reservation of easements contained within their deed they have a clear right to access and develop their land pursuant to such easement therein established which includes their adjoining 8.9 acre tract. They further contend that the controlling deed is the September 20, 1979 deed and note that each time conveyances of land occurred between members of their extended family, that the reservation of and authority to use this right-of-way is carefully mentioned. As such, the appellants believe that the circuit court erred in limiting their development to ten townhouses instead of allowing their planned sixteen townhouses. (See footnote 1)
Conversely, the appellees, who in 1996 purchased the land burdened by the
fifty-foot right-of-way, contend that the appellants were only granted a right-of-way across
their property for the limited purpose of access to their 2.03 acre parcel of land for residential
purposes. Moreover, the appellees' August 1, 1996 deed provides “[t]here is excepted and
reserved from the operation of this conveyance a 50-feet [sic] right of way shown upon said
Map for access to the David Farley 2.03-acre tract (Parcel No. 2).” The appellees believe
that their 1996 deed restricts the appellants' access to only his 2.03 acre tract and prohibits
such use to provide access to the appellants' 8.9 acre tract by third parties. They further
believe that the wording in the deed of conveyance for the fifty-foot right-of-way is specific
and unambiguous.
We have held that “[t]he burden of proving an easement rests on the party
claiming such right and must be established by clear and convincing proof.” Syllabus Point
1, Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976). We have
also explained that “[a]n easement may be defined as the right one person has to use the lands
of another for a specific purpose. . . .” Kelly v. Rainelle Coal Co., 135 W.Va. 594, 604, 64
S.E.2d 606, 613 (1951), overruled in part on other grounds by Kimball v. Walden, 171 W.Va.
579, 301 S.E.2d 210 (1983). See also Restatement (Third) of Property § 1.2(1) (2000) (“[a]n
easement creates a nonpossessory right to enter and use land in the possession of another and
obligates the possessor not to interfere with the uses authorized by the easement.”).
Furthermore, we have held that the rule governing the construction of other
writings is the same as the rule relating to the construction of grants of easements; that rule
provides that the rights of parties must be ascertained from the words of the grant so long as
the words are unambiguous. See, e.g., Semler v. Hartley, 184 W.Va. 24, 399 S.E.2d 54
(1990); Jenkins v. Johnson, 181 W.Va. 281, 382 S.E.2d 334 (1989); Hoffman v. Smith, 172
W.Va. 698, 310 S.E.2d 216 (1983); Collins v. Degler, 74 W.Va. 455, 82 S.E. 265 (1914).
Moreover, in Syllabus Point 1 of Cotiga Development Co. v. United Fuel Gas Co., 147
W.Va. 484, 128 S.E.2d 626 (1962), we explained that “[a] valid written instrument which
expresses the intent of the parties in plain and unambiguous language is not subject to
judicial construction or interpretation but will be applied and enforced according to such
intent.” In Sally-Mike Properties v. Yokum, 175 W.Va. 296, 300, 332 S.E.2d 597, 601
(1985), this Court stated that the “language of the instrument itself, and not surrounding
circumstances, is the first and foremost evidence of the parties intent.”
In the case in point, we believe that a close examination of the documents in
the appellants' chain of title unequivocally refers to a grant of the right-of-way. We further
believe that the appellants and appellees have incorrectly focused on the wrong deeds to
determine the property rights attached to the 8.9 acre tract. To this end, we look to the
August 31, 1970 deed where H.L. Belcher and Mary Ruth Belcher sold “19.4 acres, more or
less” to M & R Land Corporation. Within that deed is contained a clear right-of-way that
provides access to the 19.4 acre tract. On August 6, 1997, the appellants purchased the 8.9
acre tract in question, which was a part of the original 19.4 acre tract owned by M & R Land
Corporation. Such deed provides
The grantees herein are to have and enjoy access, ingress,
egress and regress over “Tract C”, as shown on the above
referenced map, including the benefits of all such roadways,
driveways, easements, and upon the ways shall inure to the
grantees, their heirs, successors, assigns, etc.
We find that there is no ambiguity in the records as to the fact that the
right-of-way in question was in place in 1970 and ran with the land in 1997. As such, the
appellants' ownership in the 2.03 acre tract is irrelevant in deciding the rights attached to the
8.9 acre tract. To further explain, if a third party, completely separate from the appellees and
appellants, had purchased the 8.9 acre tract, such purchaser would have the unfettered use
of the right-of-way in question as a part of their individual deed and such rights would not
be contingent upon the interest reserved in the neighboring 2.03 acre tract. Thus, since the
appellants were successors in the chain of title to the 8.9 acre tract that contained the
easement reserving access to their property, their rights are secure.
It is clear to us that the appellants had a right-of-way included in the September 20, 1979 deed when they purchased the 2.03 acre tract of land. It is also established that the appellants' 1997 deed for the 8.9 acre tract contained a solid easement affording access to that land through the same right-of-way. After reviewing all of the deeds of record we were unable to locate any limitations that would restrict the appellants' right to have access to and develop their land in a manner in which they currently desire. As provided by West Virginia Code § 36-1-11 (1923):
When any real property is conveyed or devised to any
person, and no words of limitation are used in the conveyance
or devise, such conveyance or devise shall be construed to pass
the fee simple, or the whole estate or interest, legal or equitable,
which the testator or grantor had power to dispose of, in such
real property, unless a contrary intention shall appear in the
conveyance or will.
Likewise, we have recognized that when confronted with construing a deed, the intention of
the parties making the instrument controls. See Totten v. Pocahontas Coal & Coke Co., 67
W.Va. 639, 642, 68 S.E. 373, 374 (1910). Furthermore, in Syllabus Point 1 of Maddy v.
Maddy, 87 W.Va. 581, 105 S.E. 803 (1921), we said:
In construing a deed, will, or other written instrument, it
is the duty of the court to construe it as a whole, taking and
considering all the parts together, and giving effect to the
intention of the parties wherever that is reasonably clear and free
from doubt, unless to do so will violate some principal of law
inconsistent therewith.
See also, Syllabus Point 1, Hoffman v. Smith, 172 W.Va. 698, 310 S.E.2d 216 (1983)
(“Where one acquires an easement over the property of another by an express grant, the use
of that easement must be confined to the terms and purposes of the grant.”); Syllabus Point
2, Lowe v. Guyan Eagle Coals, Inc., 166 W.Va. 265, 273 S.E.2d 91 (1980) (“No use may be
made of a right-of-way different from that established at the time of its creation so as to
burden the servient estate to a greater extent than was contemplated at the time of the
grant.”).
In the absence of ambiguity, under the cases cited, this Court believes it was
inappropriate for the circuit court to limit the rights of the appellants to develop their 8.9 acre
tract of land. The circuit court was bound to ascertain those rights from the words of the
grant. We further note that this right-of-way was carefully reserved to insure that access was
available to subsequent purchasers of land. Moreover, when the appellees purchased their
land in 1996, they had clear and unambiguous notice that a fifty-foot right-of-way was
present on their land.
Additionally, the appellees must have known that it would only be a matter of
time before there would be an increased utilization of the right-of-way. The right-of-way in
question was specifically reserved by their relatives and predecessors in land, M & R Land
Corporation, to provide access to all of M & R's properties presumably for the future sale
or development of the land. We do not believe that the appellants' expanded usage from
eight to eighteen feet of a fifty-foot right-of-way is unreasonable particularly in light of the
fact that the only access to the 8.9 acres is through the carefully reserved right-of-way. It is
obvious to us that M & R Land Corporation intended to maintain open access to all of the
lands in question, and we further believe that the appellants' development of sixteen
townhouses on their property does not create an unreasonable burden on the appellees. For
the reasons stated, the judgment of the Circuit Court of Mercer County is reversed, and this
case is remanded for entry of an order providing that the appellants shall have access
consistent with this opinion to the proscribed right-of-way across the appellees' property.
Reversed and remanded.