Submitted: January 13, 1993
Filed: May 25, 1993
William W. Talbott
Webster Springs, West Virginia
Attorney for the Appellant
Frederick A. Jesser, III
Jesser & Harrington
Fayetteville, West Virginia
Attorney for the Appellees
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "'In order to create an exception or reservation in a deed which would reduce a grant in a conveyance clause which is clear, correct and conventional, such exception or reservation must be expressed in certain and definite language.' Syllabus Point 2, Hall v. Hartley, 146 W. Va. 328, 119 S.E.2d 759 (1961)." Syllabus Point 2, G & W Auto Ctr., Inc. v. Yoursco, 167 W. Va. 648, 280 S.E.2d 327 (1981).
2. "A deed granting to a railroad company land for its
right of way must contain on its face a description of the land in
itself certain, so as to be identified, or if not in itself so
certain, it must give such description as, with the aid of evidence
outside the deed, not contradicting it, will identify and locate
the land, otherwise the deed is void for uncertainty." Syllabus
Point 1, Hoard v. Railroad Co., 59 W. Va. 91, 53 S.E. 278 (1906).
3. "Whatever is sufficient to direct the attention of
a purchaser to prior rights and equities of third parties, so as to
put him on inquiry into ascertaining their nature, will operate as
notice." Syllabus Point 1, Tanning Co. v. Boom Co., 63 W. Va. 685,
60 S.E. 890 (1908).
4. "A party is not entitled to protection as a bona
fide purchaser, without notice, unless he looks to every part of
the title he is purchasing, neglecting no source of information
respecting it which common prudence suggests." Syllabus Point 2,
Tanning Co. v. Boom Co., 63 W. Va. 685, 60 S.E. 890 (1908).
5. "This Court may, on appeal, affirm the judgment of
the lower court when it appears that such judgment is correct on
any legal ground disclosed by the record, regardless of the ground,
reason or theory assigned by the lower court as the basis for its
judgment." Syllabus Point 3, Barnett v. Wolfolk, 149 W. Va. 246,
140 S.E.2d 466 (1965).
The appellant, Highway Properties, a limited partnership,
brought suit against Dollar Savings Bank (Dollar Savings) and its
subsidiary New Market Corporation (New Market) seeking to enforce
an easement for ingress and egress to and from its property across
the adjacent property of Dollar Savings and New Market. The trial
court concluded that the doctrine of merger extinguished Highway
Properties' easement. This finding was based on the premise that
both tracts were derived from a common owner, Fayette Square
Limited (Fayette Square). When Fayette Square obtained these
tracts, reciprocal easements were contained in its deed; however,
it appears that the trial court reasoned that because Fayette
Square was the common owner of the two tracts, the reciprocal
easements were extinguished.
The property in controversy originally was owned by North
Hills Group, Inc. (North Hills), a West Virginia corporation, and
consisted of approximately 36 acres. It is located near Oak Hill,
West Virginia, adjacent to U.S. Route 19. In 1983, a developer
wanted to create a shopping center on the property and a limited
partnership was created called Fayette Square. By a deed dated
December 29, 1983, North Hills conveyed the 36-acre tract to
Fayette Square. In that conveyance, the property was conveyed by
specifically described parcels numbered one through five.
The two largest parcels, Parcel One consisting of 17.45
acres, and Parcel Five consisting of 16.4 acres, are the parcels
involved in this litigation. Despite their parcel numbering in the
1983 deed, no dispute exists that these two tracts are adjacent to
each other.See footnote 1 This litigation stems from the current owners of
Parcel Five, Highway Properties, seeking to cross Parcel One in
order to reach the main access road which adjoins Parcel One.
The 1983 deed to Fayette Square contained this single
provision with regard to easements: "It is agreed and understood
that there is common parking and rights-of-way or easements in, to
and across all parcels for ingress and egress from and to all other
parcels." In subsequent transfers by Fayette Square, even more
general language was used to describe the easements. By deed of
trust dated September 1, 1984, Fayette Square conveyed to Dollar
Savings Bank the 17.45 acre tract known as Parcel One. The deed
contained only this language: "subject to easements and
restrictions of record[.]" Fayette Square eventually defaulted on
its loan to Dollar Savings Bank and the property was sold under the
deed of trust to the appellee, New Market, a subsidiary corporation
of Dollars Savings.See footnote 2
By deed dated February 25, 1987, Fayette Square conveyed the 16.4 acre tract known as Parcel Five to Highway Properties, which was part of the same property that Fayette Square obtained in its 1983 deed from North Hills. In the 1987 deed from Fayette Square, Highway Properties received by way of general language all rights, privileges, rights-of-way, and easements owned by Fayette Square on the property conveyed.See footnote 3
Thereafter, Highway Properties sought to utilize the 16.4
acre tract for commercial development, but was denied access to it.
According to Highway Properties, the only access to this property
was the easement on the 17.45 acre tract owned by Dollar Savings
and its subsidiary New Market. When the matter of access could not
be resolved amicably, Highway Properties sued Dollar Savings and
New Market asserting that it had an easement by virtue of its 1987
deed across their property. The defendants claimed that the
easement was extinguished when North Hills made its original
conveyance to Fayette Square in 1983.
At the urging of Dollar Savings and New Market, the court
below decided that a merger between the dominant and servient
estates occurred in the 1983 deed and the easements were
extinguished. Merger occurred in spite of the fact the deed
contained easement language, reciting reciprocal rights-of-way for
ingress and egress and parking on the five tracts, because Fayette
Square received fee simple title to the five parcels.
We recognized the doctrine of merger in Syllabus Point 2
of Henline v. Miller, 117 W. Va. 439, 185 S.E. 852 (1936):
"When the owner of a dominant estate acquires the fee simple title to the servient estate, an easement appurtenant to the dominant estate is extinguished."
See also Perdue v. Ballangee, 87 W. Va. 618, 105 S.E. 767 (1921).
In Pingley v. Pingley, 82 W. Va. 228, 229, 95 S.E. 860, 861 (1918),
we explained the basis for this doctrine:
"It seems to be firmly established that where the owner of land over which an easement is claimed as appurtenant to another tract of land becomes also the owner of such other tract, the easement is merged in his superior estate. No one can use part of his own estate adversely to another part, and the proposition, therefore, must be true that if the owner of one of the estates, whether the dominant or servient one, becomes the owner of the other, the servitude which one owes to the other is merged in such ownership, and thereby extinguished." (Citations omitted).See footnote 4
Independently of the doctrine of merger, it is our belief
that there is a more fundamental problem foreclosing Highway
Properties' easement. In the law of real property, it is
recognized that a right-of-way or other type of easement
constitutes an exception or reservation to the full fee simple
interest. See Cottrell v. Nurnberger, 131 W. Va. 391, 47 S.E.2d
454 (1948).See footnote 5
Where such rights are created in a deed, we have held
that it must be done with some certainty. As we stated in Syllabus
Point 2 of G & W Auto Center, Inc. v. Yoursco, 167 W. Va. 648, 280
S.E.2d 327 (1981):
"'In order to create an exception or reservation in a deed which would reduce a grant in a conveyance clause which is clear, correct and conventional, such exception or reservation must be expressed in certain and definite language.' Syllabus Point 2, Hall v. Hartley, 146 W. Va. 328, 119 S.E.2d 759 (1961)."See footnote 6
See also Syllabus Point 2, Bennett v. Smith, 136 W. Va. 903, 69
S.E.2d 42 (1952); Syllabus Point 2, Harding v. Jennings, 68 W. Va.
354, 70 S.E. 1 (1910).
More specifically, in the context of a right-of-way, in
Hoard v. Railroad Co., 59 W. Va. 91, 53 S.E. 278 (1906), we
concluded that a deed which described the dimensions of a right-of-way, but failed to establish its beginning point, was insufficient
to convey the right-of-way.See footnote 7 We stated this principle in Syllabus
"A deed granting to a railroad company land for its right of way must contain on its face a description of the land in itself certain, so as to be identified, or if not in itself so certain, it must give such description as, with the aid of evidence outside the deed, not contradicting it, will identify and locate the land, otherwise the deed is void for uncertainty."
Other jurisdictions have evolved similar rules with
regard to the sufficiency of the description of an easement created
in a deed. One of the best summaries is given by the North
Carolina Supreme Court in Allen v. Duvall, 311 N.C. 245, 249, 316
S.E.2d 267, 270 (1984):
"When an easement is created by deed, either by express grant or by reservation, the description thereof 'must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. . . . There must be language in the deed sufficient to serve as a pointer or a guide to the ascertainment of the location of the land.' Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942)." (Emphasis in original; citations omitted).
See also Dunlap Investors Ltd. v. Hogan, 133 Ariz. 130, 650 P.2d
432 (1982); Parkinson v. Board of Assessors of Medfield, 395 Mass.
643, 481 N.E.2d 491 (1985); Royse v. Easter Seal Soc'y for Cr.
Children, 256 N.W.2d 542 (N.D. 1977); Germany v. Murdock, 99 N.M.
679, 662 P.2d 1346 (1983); Lewis v. Midgett, 448 S.W.2d 548 (Tex.
Civ. App. 1969).
From the foregoing law and aside from the merger
question, it is our conclusion that the easement sought to be
created in this case in the 1983 deed to Fayette Square was
insufficient as a matter of law as to its description. The
language in the 1983 deed that "[i]t is agreed and understood that
there is common parking and rights-of-way or easements in, to and
across all parcels for ingress and egress from and to all other
parcels" was a totally inadequate description. In its
outconveyance of Parcel One and Parcel Five, Fayette Square could
have created an easement on Parcel One in favor of Parcel Five, but
the language it used was totally inadequate. Fayette Square's deed
of trust to Dollar Savings and the trustee's deed to New Market
were entirely too general and nonspecific to create any easement
rights on Parcel One, the 17.54 acre parcel.See footnote 8 The same result is
true as to the easement language in Fayette Square's deed for
Parcel Five dated February 25, 1987, to Highway Properties.See footnote 9
None of the easement language identified the location or
width of the easements on the land. The descriptions contained
nothing that would serve to specify in the slightest degree any
means of geographically locating the easements on the property.
It should be noted that these rules regarding the
sufficiency of the description of an easement contained in a deed
apply only to the initial conveyance. The fact that subsequent
deeds may refer generally to exceptions and reservations of record
or may make no such references does not diminish the validity of
the original easement if it previously was described adequately.
The reason for this rule is because a purchaser of real property is
on notice as to those matters which are contained in the chain of
title to the property.
We discussed the law of notice at some length in Tanning
Co. v. Boom Co., 63 W. Va. 685, 60 S.E. 890 (1908), and concluded
in Syllabus Points 1 and 2:
"1. Whatever is sufficient to direct the attention of a purchaser to prior rights and equities of third parties, so as to put him on inquiry into ascertaining their nature, will operate as notice.
"2. A party is not entitled to
protection as a bona fide purchaser, without
notice, unless he looks to every part of the
title he is purchasing, neglecting no source
of information respecting it which common
See also Bailey v. Banther, 173 W. Va. 220, 314 S.E.2d 176 (1983).
In addition, we gave this rather graphic summary of a purchaser's
duty to examine the title to real property in James v. Lawson, 103
W. Va. 165, 170, 136 S.E. 851, 853 (1927), where we quoted this
language from Burwell's Administrators v. Fauber, 21 Grat. 446,
"'He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes to the inlet of information and then say he is a bona fide purchaser without notice.'" (Citations omitted).
We recognize that our ruling in this case regarding the
sufficiency of the description of the involved easement was not
touched upon by the trial court. As earlier pointed out, we note
the trial court concluded that the doctrine of merger abolished the
easements. However, we find the easement to be void for the lack
of an adequate description. Thus, we sustain the trial court's
result on a different ground following the principle set out in
Syllabus Point 3 of Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d
"This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment."
See also Sherwood Land v. Mun. Planning Comm'n, 186 W. Va. 590, 413
S.E.2d 411 (1991); McJunkin Corp. v. Human Rights Comm'n, 179 W.
Va. 417, 369 S.E.2d 720 (1988); Chambers v. Sovereign Coal Corp.,
170 W. Va. 537, 295 S.E.2d 28 (1982).
For the foregoing reasons, we affirm the judgment of the
Circuit Court of Fayette County.See footnote 10
Footnote: 1Three much smaller parcels also were conveyed in the 1983 deed. Parcel Two consisted of approximately 41,763 square feet, Parcel Three contained 37.699 square feet, and Parcel Four contained 11,512 square feet.
Footnote: 2Thomas H. Gilpin, successor trustee to Dollar Savings, conveyed the 17.45 acre tract to New Market by way of an outconveyance deed dated October 30, 1991. According to the 1991
deed, the sale under the September 1, 1984 deed of trust occurred
on August 28, 1991.
The 1991 deed to New Market concludes with this language: "The conveyance hereunder is subject to . . . any and all liens and encumbrances of any nature whatsoever prior to that of the Deed of Trust, as amended, including without limitation any rights of way or easements affecting said property." Moreover, the phrase "subject to easements and restrictions of record" appears at the end of the description of the 17.45 acre tract.
Footnote: 3The 1987 deed contained this language:
"There is likewise conveyed, for
the consideration aforesaid, all rights,
privileges, rights-of-way and easements,
minerals and mineral rights, owned by the
party of the first party over, across and
under the above-described property.
"This deed is made and accepted
subject to all lawful and continuing
reservations, exceptions, restrictions,
conditions, rights-of-way and easements made
and contained in all deeds of record in the
chain of title to the above-described
property and to all valid liens of record
against said property incurred by Fayette
Square, Limited Partnership, to secure
Footnote: 4There are limitations to the concept of merger, as summarized in 28 C.J.S. Easements § 57(b) (1941):
"In order to extinguish an easement
by merger, there must be unity of title and,
according to some decisions, of possession
and enjoyment of the dominant and servient
estates, coextensive in validity, quality,
and all other circumstances of right. Ways
of necessity and natural easements are,
strictly speaking, not subject to the
doctrine of merger."
See McNeil v. Kennedy, 88 W. Va. 524, 529, 107 S.E. 203, 205 (1921) (Merger "would not debar him from his right of way acquired by prescription through the lands of other servient owners.")
Footnote: 5We also said in Bennett v. Charles Corp., 159 W. Va. 705, 710, 226 S.E.2d 559, 563 (1976):
"An easement, whether affirmative
or negative, is an incorporeal hereditament
and as such is a species of real property or
land subject to the provisions of the
statutes governing the conveyance or creation
of estates in land. W. Va. Code, 36-1-1, and
the Statute of Frauds, W. Va. Code, 36-1-3."
Footnote: 6We recognized the distinction between an "exception" and a "reservation" in Malamphy v. Potomac Edison Co., 140 W. Va. 269, 273, 83 S.E.2d 755, 758 (1954):
"An exception is language by which '* * * the grantor withdraws from the operation of the conveyance that which is in existence, and included under the terms of the grant.' Tate v. United Fuel Gas Co., 137 W. Va. 272, [280,] 71 S.E.2d [65, 70 (1952)]; 1 Devlin on Real Estate, Third Edition, § 221; 16 Am. Jur., Deeds, § 298. 'A reservation is "'something arising out of the thing granted, not then in esse, or some new thing created
or reserved, issuing or coming out of the
thing granted, and not a part of the thing
itself, nor of anything issuing out of
another thing'"'. Tate v. United Fuel Gas
Co., supra; 1 Devlin on Real Estate, Third
We went on to state in Malamphy: "Notwithstanding that the language in a deed of conveyance may be phrased as a 'reservation', such language may be regarded and treated as an exception if it is necessary in order to carry out the plain purposes of the parties to the instrument." 140 W. Va. at 273, 83 S.E.2d at 758. (Citations omitted).
Footnote: 7In Malamphy v. Potomac Edison Co., 140 W. Va. at 273, 83 S.E.2d at 758 (1954), we questioned the sufficiency of the description of two rights-of-way which were described as "'the old county road near the river and the present county road above it.'" However, we did not decide whether the description was sufficient.
Footnote: 8As earlier stated, the only language in the deed of trust was the phrase "subject to easements and restrictions of record." As a result of the inadequacy of the description in the deed of trust, the question of whether the trustee could establish a valid easement will not be addressed. The language in the deed from the trustee to New Market is set out in note 2, supra.
Footnote: 9See note 3, supra, for the easement language in the 1987 deed.
Footnote: 10We recognize that the trial court did not decide the second claim advanced by Highway Properties that it has a way of necessity because of its landlocked position. This claim undoubtedly will be the subject of further litigation in the trial court.