David D. Molgaard
Robert L. Massie
Charleston, West Virginia Huddleston, Bolen, Beatty,
Attorney for the Appellants Porter & Copen
Huntington, West Virginia
Attorney for the Appellees
The Opinion of the Court was delivered PER CURIAM.
2. If the description of the land conveyed in a deed be general, the deed
will not be held void for uncertainty, if by the aid of extrinsic evidence it can be located
and its boundaries ascertained. Syllabus point 2, Bolton v. Harman, 98 W. Va. 518, 128
S.E. 101 (1925).
3. An easement cannot be extended as a matter of right, by the owner
of the dominant estate, to other lands owned by him. Syllabus point 1, Dorsey v. Dorsey,
109 W. Va. 111, 153 S.E. 146 (1930).
This is an appeal by John B. Cyrus and Virginia B. Cyrus, appellants/respondents below (hereinafter referred to as the Cyruses),See footnote 1 1 from an order of the Circuit Court of Wayne County granting summary judgment to Paul David Ratcliff and Johannah Ratcliff, appellees/petitioners below (hereinafter referred to as the Ratcliffs).See footnote 2 2 In essence, summary judgment granted to the Ratcliffs the use of a roadway owned by the Cyruses. After listening to the oral arguments and reviewing the briefs and the record in this case, the circuit court's summary judgment order is affirmed in part and reversed in part. Further, this case is remanded to the circuit court with directions.
At some point, the Ratcliffs constructed three driveways for access to each
portion of their property from the Adkins-Ratcliff Lane. One driveway was on the rear
property and led to a barn. The second driveway, also located on the rear property, led to
a site that once held a mobile home. The third driveway, located on the front property,
led to the Ratcliffs' home and a commercial pizza business owned by them.
On August 6, 1992, the Ratcliffs filed a petition seeking to prevent the
Cyruses from interfering with their use of the Adkins-Ratcliff Lane for the purposes of
ingress and egress.See footnote 8
The Cyruses filed an answer and counterclaim seeking to enjoin the
Ratcliffs from using the Adkins-Ratcliff Lane for any purpose. In 1994, both parties
moved for summary judgment.See footnote 9
On February 9, 2000, the circuit court entered an order
which, among other things, permitted the Ratcliffs to use the Adkins-Ratcliff Lane for
ingress and egress.See footnote 10
The Cyruses thereafter filed this appeal.
The Cyruses contend that neither the prerequisites for a prescriptive easementSee footnote 11 11 nor for an easement by necessitySee footnote 12 12 were proven in this case. The Ratcliffs concede that the circuit court committed error in ruling that a prescriptive easementSee footnote 13 13 or an easement by necessity was established. Based on the Ratcliffs' acknowledgment, the Cyruses contend that this Court should reverse the circuit court's order granting the Ratcliffs access to the Adkins-Ratcliff Lane. In contrast, the Ratcliffs contend that a portion of the circuit court's order should be affirmed because it found that an express easement was granted to them by their November 9, 1981, deed.See footnote 14 14
Considering the admission by the Ratcliffs that neither a prescriptive easement nor an easement by necessity were proper rulings by the circuit court, we summarily reverse the circuit court's order insofar as it granted an easement on the front property.See footnote 15 15 See Anderson v. State Workers' Compensation Comm'r, 174 W. Va. 406, 407, 327 S.E.2d 385, 386 (1985) (summarily accepting a concession of error); Weller v. Moffett's Pharmacy, Inc., 167 W. Va. 199, 200-01, 279 S.E.2d 196, 197 (1981) (same). We will, however, determine whether an express easementSee footnote 16 16 was made by the real property conveyance of November 9, 1981.
1. Vagueness argument. The express easement in question is found in the
deed by the grantor of the November 9, 1981, rear property. The pertinent language of
the deed states:
[A] twenty-foot right-of-way running from the house trailer site in a westerly direction to two marble markers which are set on the boundary line of the Johnson and Ratcliff land to the lands of William Glenn Ratcliff and Thelma Ratcliff to the Adkins-Ratcliff Lane thence running in a northerly direction to the Tolisa (sic) Highway.
The circuit court concluded that such language is not vague, but is a proper and valid grant of easement.
This Court has held that [i]f the description of the land conveyed in a deed
be general, the deed will not be held void for uncertainty, if by the aid of extrinsic
evidence it can be located and its boundaries ascertained. Syl. pt. 2, Bolton v. Harman,
98 W. Va. 518, 128 S.E. 101 (1925). The Cyruses contend that the language of the
easement does not have an ending or beginning point and is therefore vague and void. We
The easement language articulates a beginning point as the site which
contained a mobile home. The deed further provides for the direction of the easement.
Therefore, we are satisfied that the description identifies the easement granted in the deed.
As we previously noted, [t]he main object of a description of land . . . in a deed of
conveyance . . . is not in and of itself to identify the land sold but to furnish the means of
identification, and when this is done it is sufficient. Consolidation Coal Co. v. Mineral
Coal Co., 147 W. Va. 130, 143, 126 S.E.2d 194, 202 (1962).
Although we find that the language of the deed is sufficient to establish an
express easement, we must nevertheless remand the issue for further development. Oral
argument disclosed that the markers referred to in the deed no longer exist. The Cyruses
contend that the easement was intended to actually run alongside the Adkins-Ratcliff Lane
and not across it. The Ratcliffs have asserted that the easement was intended to run across
the Adkins-Ratcliff Lane. Although we find the argument presented by the Cyruses to be
implausible, extrinsic evidence is nevertheless necessary. See Consolidation Coal Co.,
147 W. Va. at 143, 126 S.E.2d at 202 (A deed will not be declared void for uncertainty
if it is possible, by any reasonable rule of construction, to ascertain from the description,
aided by extrinsic evidence, the property it is intended to convey.).
2. Limitation of easement. The Cyruses next argue that if the easement is
valid, it should be limited to the rear property. Even though the circuit court's order did
not place any express limitations on the easement, we believe that a limitation was
implicitly imposed because the order expressly addressed the three points of use of the
Adkins-Ratcliff Lane by the Ratcliffs.See footnote 18
This Court has previously held that an easement cannot be impermissibly extended. In Syllabus point 1 of Dorsey v. Dorsey, 109 W. Va. 111, 153 S.E. 146 (1930), we stated that [a]n easement cannot be extended as a matter of right, by the owner of the dominant estate, to other lands owned by him. In the instant proceeding, the easement in question relates only to the rear property purchased on November 9, 1981.
Consistent with our law, the easement therefore cannot be extended to the front property
purchased by the Ratcliffs.
The open, continuous and uninterrupted use of a road
over the lands of another, under bona fide claim of right, and
without objection from the owner, for a period of ten years,
creates in the user of such road a right by prescription to the
continued use thereof. In the absence of any one or all of such
requisites, the claimant of a private way does not acquire such
way by prescription over the lands of another.
Where one owns and conveys a portion of his land
which is completely surrounded by the retained land or
partially by the land of the grantor and the land of others,
without expressly providing a means of ingress and egress, and
where there is no other reasonable means of access to the
granted land, the law implies an easement in favor of the
grantee over the retained portion of the original land of the
Syl. pt. 4, Berkeley Dev. Corp. v. Hutzler, 159 W. Va. 844, 229 S.E.2d 732 (1976).
Inc., 194 W. Va. 97, 107 n.5, 459 S.E.2d 374, 384 n.5 (1995) (As an initial matter, it
is clear that where a circuit court's written order conflicts with its oral statement, the
written order controls. Therefore, 'we are left to decide this case within the parameters
of the circuit court's order.'(quoting State v. White, 188 W. Va. 534, 536 n.2, 425
S.E.2d 210, 212 n. 2 (1992)). Consequently, even if the issues were properly raised
below and orally decided, we are bound by legal principles to address only that which was
articulated in the trial court's order. Moreover, to the extent that both issues have been
raised for the first time in this appeal, we have routinely held that we will not pass upon
a matter that was not actually addressed by a lower court. See State ex rel. Clark v. Blue
Cross Blue Shield of West Virginia, Inc., 203 W. Va. 690, 699, 510 S.E.2d 764, 773
(1998) (Typically, we have steadfastly held to the rule that we will not address a
nonjurisdictional issue that has not been determined by the lower court.); Syl. pt. 2,
Duquesne Light Co. v. State Tax Dep't., 174 W. Va. 506, 327 S.E.2d 683 (1984) (This
Court will not pass on a nonjurisdictional question which has not been decided by the trial
court in the first instance.).