Larry L. Skeen, Esquire
William S. Winfrey, II, Esquire
Skeen and Skeen Princeton, West Virginia
Ripley, West Virginia Attorney for Appellee
Attorney for Appellants
The Opinion of the Court was delivered PER CURIAM.
JUSTICE McGRAW concurs in part and dissents in part and and reserves the right to file a concurring and dissenting Opinion.
1. In reviewing challenges to the findings and conclusions of the circuit court
made after a bench trial, a two-pronged deferential standard of review is applied. The final
order and the ultimate disposition are reviewed under an abuse of discretion standard, and
the circuit court's underlying factual findings are reviewed under a clearly erroneous
standard. Questions of law are subject to a de novo review. Syl. Pt. 1, Public Citizen, Inc.
v. First Nat'l Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).
2. The general rule is that there is no implied reservation of an easement when
an owner conveys a part of his land over which he has previously exercised a privilege for
the benefit of the land which he retains unless the burden upon the land conveyed is apparent,
continuous and necessary for the enjoyment of the land retained. Syl. Pt. 2, Stuart v. Lake
Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956).
This case is before the Court from the appeal of Aubrey Robertson, Charles D.
Robertson and William B. Robertson from the April 15, 1999, final order of the Circuit Court
of Mercer County, wherein the lower court, following a bench trial, concluded that the
Appellee, B A Mullican Lumber & Manufacturing Company, L.P, proved by clear and
convincing evidence that an easement was created through implication in 1991 when Ethyl
Broyles conveyed to the . . . [Appellants] the land upon which the roadway existed. The
Appellants contend that the trial court erred:See footnote 1
1) in finding that an easement by implication
was created by Ethel Broyles at the time she conveyed to the Appellants the land upon which
the easement existed; and 2) in concluding that the implied easement could be used for
timbering purposes. Based upon a review of the record, the parties' briefs and arguments,
as well as all other matters submitted before this Court, we affirm the lower court's decision.
The most recent common predecessor in title to both the Appellee and the
Appellants was Ethel Broyles. Ethel Broyles and her husband, Bernard, acquired their
original tract of land from Bessie Dunn Morgan in 1946 (referred to as the Dunn tract).See footnote 2
There was no roadway located on the Dunn tract to access the public road. When the Broyles
acquired the Dunn tract, they used the existing roadway that crossed the property owned by
M.O. Robertson, Ethel Broyles' brother. The Appellants could not identify any other way
that Ethel Broyles had to ingress and egress her property. In 1971, M.O. Robertson died and
devised the tract of land containing the roadway to Ethel Broyles.
Ethel Broyles, in turn, conveyed the tract of land upon which the existing
roadway is located to the Appellants in 1991, without consideration. She made no
reservation of an easement or right-of-way to and from her remaining property at the time
of the conveyance, although it was apparent at the time that her only access to and from her
home was across the existing roadway. From 1991 until her death on September 7, 1992,
Ethel Broyles continued to travel the existing roadway, according to the testimony of Aubrey
Robertson and Gordon Robertson. Upon her death, Ethel Broyles devised the Dunn, Fortner,
and Caldwell tracts to the three sisters of her late husband, Bernard. The sisters subsequently
conveyed the land to the Appellee's immediate predecessor in title.
Further, we have stated that
[a]ppellate oversight is therefore deferential, and we review the trial court's findings of fact following a bench trial, including mixed fact/law findings, under the clearly erroneous standard. If the trial court makes no findings or applies the wrong legal standard, however, no deference attaches to such an application. Of course, if the trial court's findings of fact are not clearly erroneous and the correct legal standard is applied, its ultimate ruling will be affirmed as a matter of law.
Phillips v. Fox, 193 W.Va. 657, 662, 458 S.E.2d 327, 332 (1995) (footnote omitted).
In syllabus point two of Stuart v. Lake Washington Realty Corp., 141 W.Va.
627, 92 S.E.2d 891 (1956), this Court addressed the requirements for an implied reservation
of an easement when we held that:
The general rule is that there is no implied reservation of an easement when an owner conveys a part of his land over which he has previously exercised a privilege for the benefit of the land which he retains unless the burden upon the land conveyed is apparent, continuous and necessary for the enjoyment of the land retained.
See Syl. Pt. 2, Myers v. Stickley, 180 W.Va. 124, 375 S.E.2d 595 (1988).
In the instant case, the testimony of Aubrey Robertson and Gordon Robertson
indicated that the roadway used by Ethel Broyles was her only means of ingress and egress
from her home to the public road. The evidence also indicated that Ethel Broyles' use of the
roadway was as necessary, apparent and continuous after she conveyed the parcel of property
upon which the roadway existed to the Appellants as it was before the conveyance. Thus,
the trial court was not clearly erroneous in determining that Ethel Broyles impliedly reserved
an easement across the Appellants' property at the time she conveyed the property to them.
The evidence also supported the trial court's ruling that the existing roadway could be used
for the Appellee's timbering operations.
Finally, it is significant to note that the lower court ruled that the easement
consists only of this roadway, which cannot be expanded or widened. Moreover, the trial
court opined that the Appellee has no right to modify the existing easement or create an
unreasonable burden on the . . . [Appellants'] servient estate. Accordingly, if the Appellee
abuses these limitations of the implied easement or if the Appellee create[s] an unreasonable
burden on the Appellants' property, nothing precludes the Appellants from seeking damages
from the Appellee.
The decision of the circuit court is hereby affirmed.