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Weller v. Carr

Supreme Court of West Virginia

April 15, 2019

David J. Weller, II, Plaintiff Below, Petitioner
Thomas Carr and Kristine Carr, Defendants Below, Respondents

          Berkeley County CC-02-2017-C-232


         Petitioner David J. Weller, II, by counsel Katherine N. Ridgeway, appeals the October 31, 2017, order of the Circuit Court of Berkeley County that denied petitioner's motion for a declaratory judgment and injunctive relief regarding a right-of-way. Respondents Thomas Carr and Kristine Carr, by counsel Kathy M. Santa Barbara, filed a summary response in support of the circuit court's order.

         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 Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner David J. Weller, II, owns a 2.3-acre tract of land in Berkeley County. Respondents Thomas and Kristine Carr own several adjacent tracts that they have merged into one 7.5-acre parcel. At issue in this appeal is a short, 139-foot-long, road [the "spur"] that runs across respondents' tract, and borders petitioner's tract. The parties dispute whether petitioner has an easement to use the spur.

         Mr. Weller's 2.3-acre tract traces back to his parents' 1982 purchase of land from Joseph B. and Delva Boarman. On December 6, 1982, the Boarmans conveyed, via the "Boarman Deed," a 13.125-acre tract (the "Parent Tract") to petitioner's parents, David and Mary Weller. A gravel road (also known as the "twelve foot right of way") crossed the Parent Tract and continued beyond it to several other tracts that are landlocked along the Potomac River. The spur at issue in this case branches off the gravel road and crossed the Parent Tract toward the northwest to serve several riverside tracts. At the time of conveyance, the riverside tracts were owned by the Newton Baker VFW Post.

         The Boarman Deed created a 12-foot-wide right-of-way to use the gravel road, including the spur, for the benefit of the landlocked tracts. The deed provides the following:

The [Boarmans] herein do further grant and convey unto [petitioner's parents], a non-exclusive right of way for ingress and egress over a 12 foot wide right of way leading from West Virginia Secondary Route 2/1 to Newton D. Baker land and other lots along the Potomac River. Said conveyance is also subject to the right of others to also use said 12 foot wide right of way for purpose of ingress and egress to and from said other lands to West Virginia Secondary Route 2/1. Reference is hereby made to the aforementioned (1982) plat for a more particular location of said 12 foot wide right of way.

(Emphasis added.)

         Petitioner's parents later divorced and petitioner's father conveyed his interest in the 13.125-acre Parent Tract to petitioner's mother in 1994. With regard to rights of way, the 1994 deed provided that the deeded real estate "is subject to all of those conditions, restrictions, covenants, rights of ways, and easements as more fully set forth in the [Boarman Deed]."

         In 1999, Respondents Thomas and Kristine Carr bought two side-by-side parcels of land (the "Baker Parcels") from the Newton D. Baker VFW Post No. 896. These parcels were adjacent to the 13.125-acre Parent Tract owned by petitioner's mother. At that time, the Baker Parcels were accessible only by way of the right-of-way across the gravel road and the spur on the Parent Tract.

         Three years after buying the Baker Parcels, respondents purchased a .4894-acre tract from petitioner's mother. The February 6, 2002, deed from petitioner's mother (the "Carr Deed") gave the Carrs a long narrow strip of land from the edge of the mother's 13.125-acre Parent Tract. This .4894-acre strip is located against the gravel road on one side and the Baker Parcels on the other side. The location of the purchase suggests the Carrs bought the strip to give their land direct access to the gravel road. Petitioner states in his complaint that upon conveyance the .4894-acre tract merged with the Baker Parcels, creating one unified 7.5-acre tract owned by respondents. A plat referenced in the 2002 Carr Deed also provides, "The 0.4894 acre tract described hereon shall be merged into one property with the adjoining 7.0051 acre parcel . . . ."

         It appears from the plat accompanying the Carr Deed that the spur forms one border of the .4984-acre parcel conveyed to the Carrs. The plat notes that the spur is 139.406 feet long and straight. More importantly, the plat places the spur solely upon the land purchased by the respondents.

         The Carr Deed references the right-of-way recorded in the Boarman Deed. Specifically, the Carr Deed provides:

This conveyance is made subject to and together with any and all covenants, conditions, agreements, easements, rights, rights-of-way and/or restrictions of record, including but not limited to those recorded in the . . . Clerk's ...

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