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