Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cantrell v. Cantrell

Supreme Court of West Virginia

June 11, 2019

JOSEPH MICHAEL CANTRELL, KAREN (CANTRELL) LEONARD, CRAIG CANTRELL, and KIM (CANTRELL) MAY, Petitioners Below, Petitioners
v.
JEFFERSON DAVID CANTRELL and LESLIE CHARLENE CANTRELL, Respondents Below, Respondents

          Submitted: February 13, 2019

          Appeal from the Circuit Court of Mingo County The Honorable John L. Cummings, Judge Civil Action No. 15-C-55

          C. Christopher Younger, Esq. Williamson, West Virginia Counsel for the Petitioners

          M. Timothy Koontz, Esq. Law Offices of M. Timothy Koontz Williamson, West Virginia Counsel for the Respondents

         SYLLABUS BY THE COURT

         1. "''Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.' Syl. pt. 11, Stuart v. Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956).' Syl. Pt. 1, G Corp, Inc. v. MackJo, Inc., 195 W.Va. 752, 466 S.E.2d 820 (1995)." Syllabus Point 1, Baisden v. West Virginia Secondary Schools Activities Commission, 211 W.Va. 725');">211 W.Va. 725, 568 S.E.2d 32 (2002).

         2. "'This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.' Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996))." Syllabus Point 1, Wilson v. Staats, 232 W.Va. 227');">232 W.Va. 227, 751 S.E.2d 747 (2013).

         3. "A person claiming a prescriptive easement must prove each of the following elements: (1) the adverse use of another's land; (2) that the adverse use was continuous and uninterrupted for at least ten years; (3) that the adverse use was actually known to the owner of the land, or so open, notorious and visible that a reasonable owner i of the land would have noticed the use; and (4) the reasonably identified starting point, ending point, line, and width of the land that was adversely used, and the manner or purpose for which the land was adversely used." Syllabus Point 1, O'Dell v. Stegall, 226 W.Va. 590');">226 W.Va. 590, 703 S.E.2d 561 (2010).

         4. "A person claiming a prescriptive easement must establish each element of prescriptive use as a necessary and independent fact by clear and convincing evidence, and the failure to establish any one element is fatal to the claim." Syllabus Point 3, O'Dell v. Stegall, 226 W.Va. 590');">226 W.Va. 590, 703 S.E.2d 561 (2010).

         5. "In the context of prescriptive easements, the term 'adverse use' does not imply that the person claiming a prescriptive easement has animosity, personal hostility, or ill will toward the landowner; the uncommunicated mental state of the person is irrelevant. Instead, adverse use is measured by the observable actions and statements of the person claiming a prescriptive easement and the owner of the land." Syllabus Point 4, O'Dell v. Stegall, 226 W.Va. 590');">226 W.Va. 590, 703 S.E.2d 561 (2010).

         6. "In the context of prescriptive easements, an 'adverse use' of land is a wrongful use, made without the express or implied permission of the owner of the land. An 'adverse use' is one that creates a cause of action by the owner against the person claiming the prescriptive easement; no prescriptive easement may be created unless the person claiming the easement proves that the owner could have prevented the wrongful use ii by resorting to the law." Syllabus Point 5, O'Dell v. Stegall, 226 W.Va. 590');">226 W.Va. 590, 703 S.E.2d 561 (2010).

         7. "'There are two forms of implied easements: an easement implied by necessity (which in West Virginia is called a 'way of necessity'); and an easement implied by a prior use of the land (also called an easement implied from a 'quasi-easement').' Syl. Pt. 3, Cobb v. Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010)." Syllabus Point 2, Wilson v. Staats, 232 W.Va. 227');">232 W.Va. 227, 751 S.E.2d 747 (2013).

         8. "'The law does not favor the creation of easements by implied grant or reservation.' Syllabus point 1, Stuart v. Lake Washington Realty, 141 W.Va. 627, 92 S.E.2d 891 (1956)." Syllabus Point 1, Cobb v. Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).

         9. "'The 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)." Syllabus Point 2, Cobb v. Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).

         10. "To establish an easement implied by necessity (which in West Virginia is called a 'way of necessity'), a party must prove four elements: (1) prior common ownership of the dominant and servient estates; (2) severance (that is, a conveyance of the iii dominant and/or servient estates to another); (3) at the time of the severance, the easement was strictly necessary for the benefit of either the parcel transferred or the parcel retained; and (4) a continuing necessity for an easement." Syllabus Point 4, Cobb v. Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).

         11. "'If one has a reasonable outlet over his own property, he cannot exact a more convenient way as of necessity over the premises of another.' Syllabus point 2, Dorsey v. Dorsey, 109 W.Va. 111');">109 W.Va. 111, 153 S.E. 146 (1930)." Syllabus Point 5, Cobb v. Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).

         12. "To establish an easement implied by a prior use of the land, a party must prove four elements: (1) prior common ownership of the dominant and servient estates; (2) severance (that is, a conveyance of the dominant and/or servient estates to another); (3) the use giving rise to the asserted easement was in existence at the time of the conveyance dividing the property, and the use has been so long continued and so obvious as to show that the parties to the conveyance intended and meant for the use to be permanent; and (4) the easement was necessary at the time of the severance for the proper and reasonable enjoyment of the dominant estate." Syllabus Point 6, Cobb v. Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).

          WALKER, CHIEF JUSTICE.

         This case is a dispute among five adult children of the late Beulah and Delmon Cantrell about whether an easement exists across property now owned by one sibling to allow ingress to and egress from adjacent property owned by the other four siblings. Michael, Karen, Craig and Kim (Petitioners)[1] filed a petition for injunctive relief against David (and his wife Leslie)[2] claiming that the easement is necessary for them to access their property. Respondents David and Leslie contended that Petitioners could not establish an easement by prescription or implication. After a three-day bench trial, the circuit court refused the injunction because (1) Petitioners' use of Respondents' property was permissive, so Petitioners failed to prove the adverse use required for a prescriptive easement; and (2) Petitioners offered no credible evidence of strict or reasonable necessity or prior use, and thus failed to establish an implied easement. We agree and affirm the circuit court's order.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In the 1960's, the late Beulah Cantrell (Mother) and the late Delmon Cantrell (Father) purchased a parcel of real estate in Varney, West Virginia, known as Lots 88 through 93 and 124 through 129 (the Cantrell Property).[3] Together, these twelve lots created a rectangular-shaped property with the east edge flush against the west side of White Street. On the north, the property bordered Second Avenue and on the south, First Avenue.[4]

         (Image Omitted)

         Before 2006, the Cantrell Property had two residences on it, both on the northern half of the rectangle, on Lots 124 through 129 (Old Property). There was an old, small, wooden residence (the old home place) on Lots 127 through 129, and a larger, brick home (the new home place) on Lots 124 through 126.

         In 1979, Mother and Father moved out of the old home place and into the new home place where they lived until their deaths. Petitioner Craig now lives in the new home place. When Father and Mother vacated the old home place in 1979, Petitioner Michael moved in. In 1984, Respondent David built a home on Lots 88 through 93 of the southern half of the Cantrell Property.[5] Petitioners Karen and Kim each now live in Kentucky.

         In 1991, Michael (and his wife Sheila) purchased eight lots adjacent to and on the west side of the Cantrell Property, Lots 130 through 133 and Lots 84 through 87 (New Property). The New Property is a rectangular-shaped property with the west edge flush against the east side of Varney Street and the east edge flush against the west edge of the Cantrell Property. It is bordered on the south by First Avenue and on the north by Second Avenue. Before Michael's purchase in 1991, the New Property had never been owned by any member of the Cantrell family. After Michael's purchase of these lots in 1991, he constructed a road across the lots. [6]

         In June 1999, Michael (and Sheila) sold the New Property to David (and Leslie). Michael intended to use the sale proceeds to construct a new home on a completely separate, adjacent parcel on the other side of Varney Street.[7] Indisputably, there was no express easement burdening the New Property at the time Michael sold it to David.

         David and other family members helped Michael build his new home and allowed Michael to store equipment and cut timber on the New Property during its construction. When Michael's new home was completed in August 2006, he vacated the old home place and moved into his new house. Soon after, in the fall of 2006, the parties razed the old home place on Lots 127 through 129 of the Cantrell Property.

         Michael testified that after he sold the New Property to David in 1999, he continued to use the New Property to park vehicles, store timber, and operate a small saw mill during the construction of his new home. After the completion of his new home in 2006, Michael testified that he continued to drive across the New Property when visiting with Craig and Mother until her death in 2009. Michael also testified that he continued to access his saw mill on the New Property until it was removed in 2010.

         Mother passed away in November 2009 and through her last will and testament, Petitioners obtained title to the Old Property (Lots 124 through 129). Craig, who acquired a life estate in these lots, continues to reside in the new home place, and the other Petitioners have remainder interests in the lots. David was not included in the devise of the Old Property, as he had already been given Lots 88 through 93 by deed in August 2006.

         At some point, the familial relationship soured. Respondents allege that Petitioners never complained about having an easement across the New Property until Respondents prosecuted Craig's son for breaking into their storage building on David's property in 2012 or 2013. In 2015, Petitioners disconnected the water supply to Respondents' home from a private well located on the Old Property. Respondents had drawn water from the well, with Father's permission, for twenty-five years. As a result of the disconnection, Respondents spent $1, 500 to restore water to their home by city water access and now pay a monthly water bill.

         In March of 2015, Petitioners filed a petition for injunctive relief seeking to establish an easement across Respondents' property, either by prescription or implication, for ingress to and egress from the Old Property. According to the petition, Petitioner Craig Cantrell intends "to construct a dwelling, for use as a rental," on the Old Property and so Petitioners "believe it is necessary to establish the right-of way to the tract . . . to ensure the establishment and continued use of the same by recorded instrument." Petitioners contended that Lots 128-129 are landlocked and inaccessible by any other means than through the Respondents' property because there are two septic tank systems that cannot be relocated filling all the yard space of the new home place, which might allow access to these lots from White Street for construction purposes. They also alleged that the area above lots 128-129, which was traditionally accessed by steps, is too steep and rocky for vehicular access.

         In response to the petition for injunction, Respondents argued that Petitioners could not establish an easement by prescription or implication. Respondents contended that they never prevented Petitioners from using the property, and if they did use it, it was with Respondents' permission. Respondents asserted that they "never granted [Petitioners] an easement nor did [Respondents] deny [Petitioners] use of the property. Why would we? They are family. The reality is that [Petitioners] used their own property to access their adjacent lot, not the property in question[.]" Respondents contended that there had never been an easement across the property, and while they planned to build a new residence of their own on the New Property where the last one was located, this could not coexist with the Petitioners' claimed easement.

         During the course of two hearings and a three-day bench trial, various witnesses testified regarding Petitioners' use of the alleged easement for ingress to and egress from the Old Property. Karen, Craig and Pearly Edwards, a former resident of the property, testified that numerous people routinely traversed Lots 84 through 87 (the New Property) by using the alleged easement for as long as they could remember. Conversely, Respondents testified that numerous people routinely accessed the Old Property with their vehicles either by White Street or Second Avenue. They testified that Mother and Father never accessed the old home place by crossing the New Property.

         As to permission, Respondents testified that to the extent Michael drove across the New Property after he sold it to them in 1999, it was solely with their permission. When counsel asked David on cross-examination if there was ever any discussion with Michael about his use of the road, he stated:

A. He never come and asked me, no.
Q. He just used it?
A. Yes.
Q. And he never asked you?
A. No.

         However, David also stated, "Even if he did come and discuss it with me, I didn't have no problem letting him use cause I know he had stuff to get move off there to get moved up to his own homeplace." Further, when asked if any of his brothers or family members ever used the property over his objection to go across his land to get to the back of the new home place, David responded, "no."

         When Michael was asked whether he ever asserted any ownership interest in the road after he sold it, he responded,

A. I didn't have to assert it. He knowed that I would.
Q. He let you use it, right?
A. Well, yeah. Like I say, he never said that I couldn't.
. . . .
Q. Did you ever ask your brother if he would temporarily allow ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.