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Roche v. Wade

Supreme Court of West Virginia

January 5, 2018

Steven Roche, Plaintiff Below, Petitioner
v.
Michelle Jill Wade, individually and as personal representative of the Estate of William A. Bradley, Defendant Below, Respondent

         Monroe County 14-C-75

          MEMORANDUM DECISION

         Petitioner Steven Roche, by counsel John H. Bryan, appeals the rulings of the Circuit Court of Monroe County that (1) granted the motion for judgment as a matter of law of Respondent Michelle Jill Wade, individually, and as personal representative of the Estate of William A. Bradley, as to whether petitioner had an easement implied by necessity over respondent's property, and (2) denied petitioner's motion for judgment as a matter of law as to whether he had an easement implied through prior use. Respondent Michelle Jill Wade, by counsel Jeffry A. Pritt, filed a response.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's rulings is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Prior to 1876, William T. Johnson owned a large tract of land located in Monroe County. The parcel bordered publicly used roads at its northern and southern boundaries. There was an old road bed leading from a point of intersection with the northern public road (known as the Everett Green Road) southward down through the Johnson property until it intersected with the public road bordering the southern part of the farm (known as the Johnson's Crossroads Road). There is no evidence that the old road bed was ever open to the public.

         In 1876, Johnson partitioned the northernmost parcel of the land and deeded it to Thomas G. Alderson. The Alderson deed reserved to Johnson a right-of-way "along his present road to the gate at the country road near the bridge crossing Wolf Creek[, ]" specifically referencing the existing road leading north to the Everett Green Road.

         In 1888, Johnson partitioned the remaining land into three separate tracts by simultaneous deeds dated March 27, 1888. The most northern of the three was deeded to Edward A. McNeer. This tract bordered the parcel that had been previously conveyed to Alderson, and the right-of-way previously reserved over that land was specifically granted to McNeer. Portions of this tract are now owned by multiple owners, none of whom are parties to this action.

         The most southern of the three tracts was deeded to Odella Ellis and is now owned by respondent.[1] This tract bordered Johnson's Crossroads Road along its southern boundary. No right-of-way was granted or reserved in this deed.

         The tract in between the northern (E. McNeer) and southern (Ellis) tracts was deeded to Laura McNeer, Edward McNeer's sister and Odella Ellis's cousin. The deed did not include any language granting a right-of-way or otherwise specifying how the grantee was to access either of the two public roads. Laura McNeer's property was eventually owned by petitioner's great-grandmother, Margaret Ellison. Mrs. Ellison was awarded the tract as part of a partition proceeding, by order of the Circuit Court of Monroe County on April 17, 1939. The partition order stated that the tract awarded to Mrs. Ellison was "connected with the public road by two easements or rights-of-way leading to, into and from the same connecting with different public roads." This parcel was deeded to petitioner by Mrs. Ellison in 1992.

         On January 23, 2015, petitioner filed an amended complaint for declaratory judgment and injunctive relief against respondent in which he alleged that he possessed an implied easement through prior use or, in the alternative, an implied easement by necessity, leading from his parcel over the adjoining tract originally granted to Odella Ellis and now owned by respondent.[2]Petitioner also sought punitive damages.[3]

         At trial, a series of letters by and between Mrs. Ellison and various county and other public officials over the years were admitted into evidence. The letters related to the fact that the northern access to Mrs. Ellison's property had been fenced/gated and blocked off by her neighbors, the Thompson family, who then owned and still own the land through which the road located to the north of petitioner's property (i.e., the Everett Green Road) ran. According to these letters, Mrs. Ellison used only the northern route to access her property. With regard to the southern route (i.e., Johnson's Crossroads Road), the letters revealed that Mrs. Ellison did not consider it to be a viable route to and from her property because large limestone rocks made it impassable and because the route had not been used, in her words, since "wagon days."

         Witness Ernest Ward Lefler, district right-of-way manager at the West Virginia Department of Highways ("DOH"), testified that the portion of the north right-of-way that traverses the Everett Green Road is within the state road system even though the State no longer maintains it because of lack of use. According to Mr. Lefler, if there is a problem with a gate blocking the road, then the DOH will ensure that it is removed.[4] Mr. Lefler also testified that there is a collapsed bridge on the western side of the Everett Green Road but that the eastern side is passable.

         Additionally, the current owner of the land bordering the public road through which petitioner must pass to access his property the northern way, Tracy Thompson, testified that there is an open and unlocked gate where the private portion of the northern right-of-way intersects with the Everett Green Road but that his family recognizes petitioner's legal right to traverse the road.

         At the close of petitioner's case-in-chief, both parties moved for judgment as a matter of law as to petitioner's claims that he has easements implied by necessity and through prior use. Respondent also moved for judgment as a matter of law on petitioner's claim for punitive damages. The circuit court granted respondent's motion on the issue of punitive damages but denied the remaining motions regarding whether petitioner had an implied easement.

         Thereafter, after the close of all the evidence, the parties renewed their motions for judgment as a matter of law. The circuit court denied petitioner's motions and granted respondent's motion for judgment as a matter of law as to the easement implied by necessity. In so ruling, the circuit court relied on the 1939 partition order, which it found "was referring to two different public roads and two different easements here." The court also found the majority of the evidence showed that "when people went to [petitioner's] property by vehicular access . . . . they have traveled to and from this property by way of the [Everett] Green Road, not from the [Johnson's] Crossroads Road." The court was also persuaded by Mrs. Ellison's letters to various officials, finding that "[i]t's pretty clear from this - from all this correspondence that we have that Ms. Ellison believed that [the Everett Green Road] was her right-of-way for vehicular access to this property. And if she couldn't get the gates taken off the road or the barb wire fences cut that were across the road, she wasn't able to get to her property." The court concluded that "there's an abundance of evidence here that ...


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