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Conn v. Beckman

Supreme Court of Appeals of West Virginia

September 9, 2019

Dwight D. Conn and Donna J. Conn, Plaintiffs Below, Petitioners
v.
James L. Beckman and Brooke F. Beckman Defendants Below, Respondents

          (Marion County 15-C-305)

          MEMORANDUM DECISION

         Petitioners Dwight D. Conn and Donna J. Conn, by counsel James D. Stacy, appeal the April 19, 2018, order of the Circuit Court of Marion County that granted Respondents James L. Beckman and Brooke F. Beckman's motion for summary judgment and denied petitioners' motion for partial summary judgment in this contested right-of-way case. Respondents, by counsel Craig P. Erhard, filed a response in support of the circuit court's order and a supplemental appendix. Petitioners filed a reply.

         The 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 order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Margaret E. Garrett ("Mrs. Garrett") died on February 11, 2013. Under Mrs. Garrett's will, her four adult children inherited her real property as tenants in common. That real property is located in the J.B. Miller Subdivision in Marion County. On February 4, 2014, Mrs. Garrett's children sold the property to petitioners ("the Conns"). The Conns's deed provides that "any and all existing reservations, restrictions, rights-of-way[, ] and conditions are contained in the chain of title of the property conveyed thereby."

         At the time of the sale, Mrs. Garrett's son, Michael Garrett, and his wife, Sue, lived next door to the Conns. A long asphalt driveway ran between the Garretts's property and the Conns's property. Off the driveway and near the Garretts's house was a gravel parking pad and a twenty-foot long sidewalk that extends from the driveway to the front door of the Garretts's house. During the year or so that the Conns and the Garretts were next-door neighbors, both families used the driveway to access their houses without dispute. Further, the Conns did not complain about the Garretts's use of the parking pad or the sidewalk.

         On January 20, 2015, Michael and Sue Garrett sold their house to respondents ("the Beckmans"); thus, the Beckmans and the Conns became next-door neighbors. The Beckmans's deed contains a reservation that provides: "[g]rantors further except and reserve from this conveyance a right-of-way for ingress and egress over the existing driveway located upon one or more of the above-described parcels of land." The Beckmans then began using the driveway, parking pad, and sidewalk that had previously been used by Michael and Sue Garrett. The Beckmans highlight that the driveway is the only means by which they and the Conns can access their houses.

         When the Beckmans purchased Michael and Sue Garrett's property, the Conns did not know who owned the driveway and believed it was a shared right-of-way. Thereafter, the Conns had professional surveyor Chad Freels survey their property and learned in May of 2015 that the driveway, the parking pad, and part of the sidewalk to the Beckmans's house were situated on the Conns's property. Following the survey, significant problems arose between the parties regarding the Beckmans's use of the driveway, parking pad, and sidewalk. For example, the Beckmans claim that the Conns threatened to jackhammer the sidewalk to the Beckmans's house, spray-painted "CONNS" in large fluorescent orange letters on the parking pad used by the Beckmans, and harassed the Beckmans's visitors. The parties negotiated a settlement; however, the Conns ultimately disavowed it.

         The Conns eventually filed the underlying action alleging trespass and seeking declaratory relief regarding the disputed right-of-way. The Conns asserted that Michael and Sue Garrett conveyed no rights of ingress or egress to the Beckmans, i.e., no right to use the driveway. The Conns further alleged that the Beckmans had no right to use the parking pad or sidewalk because both could be accessed only from the driveway.

         Discovery commenced. The Beckmans produced an exhibit that contained various deeds and written instruments regarding their property and the Conns's property. The exhibits reveal that, circa 1970, Earnest G. and Genevieve Shafferman (the "Shaffermans"), who were Margaret E. Garrett's parents and Michael Garrett's grandparents, owned several contiguous tracts of land. Part of that land is now owned by the Conns and part is owned by the Beckmans. The right-of-way on the Conns's property originated in a June 26, 1970, deed by which the Shaffermans conveyed a right to use the "existing driveway" to James H. and Margaret E. Garrett.[1] The 1970 deed provides as follows with regard to the right-of-way:

FIRST PARCEL: Beginning at a stake, a corner to Lots. No. 25 and 26 of the original partition of lands of J. B. Miller, deceased, in the northern line of Roadway "D", said stake being a corner to land owned by James H. Garrett and Margaret E. Garrett, and running thence with said line of said Roadway "D" [the metes and bounds of the First Parcel follow].
The parties of the first part [the Shaffermans] reserve unto themselves, their heirs and assigns the right and privilege to travel over, across and on an existing driveway on the above described parcel of land, together with the right and privilege to extend said driveway to the lands of the parties of the first part for the purpose of ingress, egress and regress to and from said Roadway "D" and the other lands of the parties of the first part.

(Emphasis added.) Roadway "D" intersects with the lower end of the disputed driveway and runs perpendicular to the driveway. Roadway "D" also runs along the southwest edge of both the Conns's and the Beckmans's properties. The Conns highlight that the driveway was not paved in 1970 when the 1970 deed was filed.

         As for the Beckmans' property, it traces back to two deeds from the Shaffermans. In the first deed, dated May 5, 1980, the Shaffermans conveyed a portion of their property to their grandson, Michael Garrett, and his wife, Sue. In the second deed, filed in 1989, the Shaffermans deeded an additional 10, 819 square feet of land to Michael and Sue Garrett. The 1989 deed provides that the east boundary of the property aligns with an "unnamed right-of-way." The 1989 deed also contains a plat map that depicts the parcel's east boundary as abutting a right-of-way that is in the same location as the disputed driveway now used by the parties.

         In a November 23, 1992, right-of-way agreement, the Shaffermans conveyed the right to use the "existing driveway" to Michael and Sue Garrett. The 1992 agreement references the 1970, 1980, and 1989 deeds, and provides:

The [Shaffermans] do hereby grant and convey unto the Grantees, J. Michael Garrett and Elaine Sue Garrett, husband and wife, the right and privilege to travel over, across and on an existing driveway on the hereinafter described parcel of land, together with the right and privilege to extend said existing driveway to the lands of the Grantees ...

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