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647 S.E.2d 829
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2007 Term
Plaintiff Below, Appellee
Defendant Below, Appellant
Appeal from the Circuit Court of Hampshire County
Honorable Andrew N. Frye, Jr., Judge
Case No. 04-C-2
AFFIRMED IN PART AND REVERSED IN PART
Submitted: April 4, 2007
Filed: May 11, 2007
Loudoun L. Thompson, Esq.
Thompson & Weatherholt, PLLC
Romney, West Virginia
Attorney for Appellant
| Donald P. Cookman, Esq.
Cookman Law Office
Romney, West Virginia
Attorney for Appellee
The Opinion of the Court was delivered PER CURIAM.
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 [preliminary] 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. Lake
Washington Realty, 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). Syl. Pt. 1, Baisden v. West Virginia
Secondary Schools Activities Commission, 211 W.Va. 725, 568 S.E.2d 32 (2002).
2. In reviewing the findings of fact and conclusions of law of a circuit court
supporting a civil contempt order, we apply a three-pronged standard of review. We review
the contempt order under an abuse of discretion standard; the underlying factual findings are
reviewed under a clearly erroneous standard; and questions of law and statutory
interpretations are subject to a de novo review. Syl. Pt. 1, Carter v. Carter, 196 W.Va. 239,
470 S.E.2d 193 (1996).
3. 'When lands are laid off into lots, streets, and alleys, and a map plat thereof
is made, all lots sold and conveyed by reference thereto, without reservation, carry with them,
as appurtenant thereto, the right to the use of the easement in such streets and alleys
necessary to the enjoyment and value of such lots.' Syl. Pt. 2, Cook v. Totten, 49 W.Va. 177,
38 S.E. 491 (1901). Syl. Pt., Bauer Enterprises, Inc. v. City of Elkins, 173 W.Va. 438, 317
S.E.2d 798 (1984).
This case is before the Court on appeal from a September 1, 2004, Order of the
Circuit Court of Hampshire County, which granted Appellee a permanent injunction, and an
August 24, 2005, Order of the Circuit Court of Hampshire County, which found Appellant
to be in contempt of court. This Court has before it the petition for appeal, the briefs of the
parties, and all matters of record. Following the arguments of the parties and a review of the
record herein, this Court finds that the circuit court did not abuse its discretion in granting
the permanent injunction. However, this Court finds that the circuit court did abuse its
discretion in holding Appellant in contempt of court. Accordingly, this Court affirms the
September 1, 2004, Order of the circuit court and reverses the August 24, 2005, Order of the
Plaintiff Lyon Chapman and his son, Scott, and Defendant Sylvia Catron are
all landowners in the Capon Bridge Resort Subdivision (the subdivision). Catron is the
owner of three parcels in the subdivision: Lots 25, 26, and 49. She is also the owner of a
certain tract known as the Barn Tract, which is adjacent to Lot 25. The Barn Tract extends
to the middle of a certain 40-foot- wide roadway, known as the Mountaintop Road, which
provides access to the subdivision from County Route 15, which is also known as Springfield
Grade Road. A certain other tract, known as the Church Tract, also extends to the middle
of the Mountaintop Road. Mountaintop Road, as it traverses both the Barn and Church
Tracts, has been used by the residents of the subdivision to access their properties since the
subdivision's very inception, which appears to have been nearly 30 years ago. (See footnote 1)
Tract is further traversed by the Lake Road, which provides access to Lyon and Scott
Chapman's properties. This road, too, has been used throughout the subdivision's history.
Furthermore, both roads have existed in their present locations for all that time. (See footnote 2)
At some point, Ms. Catron decided that the use of both roads interfered with
her plans for the use of the Barn Tract. Ms. Catron presented her concerns to the Capon
Bridge Resort Property Owners Association (the Owners Association). A discussion was
had amongst the members of the Owners Association, and a vote was taken, with no dissent,
to allow Ms. Catron to remedy the problem. Accordingly, Ms. Catron took it upon herself
_ and at her own expense _ to construct new roadways which could be used by residents to
access the subdivision.
On January 7, 2004, the Chapmans, along with the New Testament Faith
Assembly of God Church (the church), filed a complaint in the Circuit Court of Hampshire
County alleging that Ms. Catron, had begun work to modify the course of certain platted
roads in the subdivision, essentially closing the rights of way of the Chapmans and the
church. The Chapmans and the church asked for a temporary injunction as well as a
permanent injunction. A temporary restraining order was entered on January 8, 2004,
preventing Ms. Catron from further work or construction on the roadways in the subdivision
except that which was necessary to return the roads to a passable condition.
On January 21, 2004, Ms. Catron filed a Motion for Temporary Restraining
Order seeking to have the church remove certain concrete barriers from the Mountaintop
Road. On that same day, she also filed a Motion to Lift Temporary Restraining Order. The
court denied both motions.
On June 24, 2004, while laying a line for a well, Ms. Catron's son dug a ditch
across the Lake Road which interrupted not only use of the road but also severed the phone
line, interrupting phone service to the subdivision's residents. On September 1, 2004, the
court entered an order granting a permanent injunction preventing the relocation of either the
Mountaintop Road or the Lake Road by Ms. Catron. Ms. Catron moved to set aside the
summary judgment and permanent injunction, but the court denied the motion. The court
further ordered that all barricades to the road (in particular, those placed by the church) be
On March 16, 2005, the Chapmans petitioned for contempt and for a
clarification of the court's prior orders. The court found that Ms. Catron had not returned
the property damaged by her road reconstruction and line-digging attempts to its original
condition and held her in contempt of the court's prior injunctive orders. She was ordered
to return the roadway to its original location within 60 days of the court's August 24, 2005,
contempt Order. Ms. Catron now appeals.
STANDARD OF REVIEW
There are two issues on appeal before this Court. We first address the court's
decision to issue the permanent injunction following its grant of summary judgment in favor
of the Chapmans. We have held:
'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 [preliminary] 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. Lake Washington Realty, 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).
Syl. Pt. 1, Baisden v. West Virginia Secondary Schools Activities Commission, 211 W.Va.
725, 568 S.E.2d 32 (2002). We review the court's decision to grant the injunction
We will next address the court's order holding Catron in contempt of court.
In reviewing the contempt holding, we are guided by our holding:
In reviewing the findings of fact and conclusions of law of a
circuit court supporting a civil contempt order, we apply a
three-pronged standard of review. We review the contempt
order under an abuse of discretion standard; the underlying
factual findings are reviewed under a clearly erroneous standard;
and questions of law and statutory interpretations are subject to
a de novo review. Syl. Pt. 1, Carter v. Carter, 196 W.Va. 239,
470 S.E.2d 193 (1996).
With those standards in mind, we turn to a discussion of the case.
Ms. Catron argues that the circuit court erred by permanently enjoining her
from obstructing, blocking, or closing the Lake Road and the Mountaintop Road. In its
Order granting the injunction, the court found that the original owner of the Barn Tract, who
was one of the developers of the subdivision, had excluded the Barn Tract from the
subdivision, but had granted a right of way across the Barn Tract for the benefit of the
subdivision. The court acknowledged that the Mountaintop Road did not appear to be built
according to the plat of the subdivision, but found that the roadway had been in existence and
had been used since the inception of the subdivision. The court found that a private
dedication had, therefore, been established making the roadway a common easement for the
benefit of the landowners in the subdivision.
We have observed that:
[t]he mere recording of a plat showing streets and alleys
constitutes only a private dedication. The law provides that in
this case all lots sold and conveyed with reference to the plat
carry with them only the right to the use of the streets appearing
on the plat which is necessary to the complete enjoyment and
value of the lots.
Bauer Enterprises, Inc. v. City of Elkins, 173 W.Va. 438, 441, 317 S.E.2d 798, 800 (1984).
To that end, the Court referenced Syllabus Point 2 of Cook v. Totten, 49 W.Va. 177, 38 S.E.
491 (1901), in which we held:
When lands are laid off into lots, streets, and alleys, and a map
plat thereof is made, all lots sold and conveyed by reference
thereto, without reservation, carry with them, as appurtenant
thereto, the right to the use of the easement in such streets and
alleys necessary to the enjoyment and value of such lots.
Bauer Enterprises, Inc., supra, at Syllabus Point.
There is no deed in the record for any of the properties in the subdivision;
however, there is no dispute that the Mountaintop Road has been used as the main access to
the subdivision for as long as the subdivision has existed. Ms. Catron even acknowledges
that she knew when she bought the Barn Tract that the Mountaintop Road provided the
subdivision's landowners access to their properties and that the roadway transected the Barn
Tract. By the same token, Ms. Catron was aware that the Lake Road has been used for many
years by the Chapmans to access their properties. In fact, Ms. Catron doesn't dispute that an
easement exists across the Barn Tract. Rather, she simply wants to move the roadway to
match the platted roadway.
While we could delve into a long analysis about whether a prescriptive
easement exists by virtue of the fact that the Mountaintop Road has been so openly used for
so many years, we need not. The circuit court was correct: A private dedication exists, which
is a common easement for the benefit of the landowners in the subdivision. As the circuit
court noted, A [private dedication] is brought about by simply selling lots according to the
description of lots, streets, and alleys shown upon a plat or map, the purchasers acquiring the
right to the ordinary use of all the streets and alleys shown upon the plat necessary to the
complete enjoyment of their property.. Rose v. Fisher, 130 W.Va. 53, 57, 42 S.E.2d 249,
252 (1947). The Rose court went on to explain:
This type of dedication is appurtenant to the land lying within
the plat and disposed of by reference to it, and [ ] benefits the lot
owners only to the extent that the full enjoyment of their
property renders necessary to the owners thereof. This is a
contractual right and extends to those only who buy lots or,
perhaps, land laid out upon the plat.
Rose v. Fisher, 130 W.Va. 53, 62, 42 S.E.2d 249, 254(1947) (emphasis added). Though the
Barn Tract is not technically a part of the subdivision, it is shown and duly described on the
recorded plat, with both Mountaintop Road and Lake Road running through it, leaving no
question that the access road to the subdivision was meant to transect the Barn Tract.
To be sure, the roadway is not where it ought to be, according to the plat. We
recognize that Ms. Catron did not seek to completely and permanently block access to a
roadway across the property, but rather that she merely wished to move it to its platted
location so as to enhance the value and enjoyment of her own property. However, it was not
Ms. Catron's right to move or otherwise reconstruct the road _ with or without the consent
of the Owners Association _ if that reconstruction left any landowners feeling as though their
complete enjoyment of their land had been impeded. Accordingly, we cannot find that the
circuit court abused its discretion in granting the permanent injunction.
However, we do find that the circuit court abused its discretion in later holding
Ms. Catron in contempt of the court's Order granting the injunction. The circuit court made
only one finding which would lend to its finding of contempt, which was that Ms. Catron had
installed a waterline across the roadway and did not return the road to its original condition.
It should be noted, though, that that act occurred before the injunction was in place. And Mr.
Chapman did not present one single shred of evidence to support his petition for a finding
of contempt beyond his assertion that Ms. Catron continued to interfere with his use of the
roadway and certain pictures of the obstruction of the road which were later shown to have
been taken at a time preceding the injunction. To the contrary, Ms. Catron produced the
testimony of several witnesses _ all residents of the subdivision _ who testified that the
roadway was not obstructed and that, to their minds, the roadway had been restored to its
original condition. Accordingly, the circuit court clearly erred in finding that Ms. Catron had
not restored the roadway to its original condition and abused its discretion in holding her in
contempt of court.
Having established that the lower court did not abuse its discretion in granting
a permanent injunction against Ms. Catron but did abuse its discretion in holding Ms. Catron
in contempt of court, we affirm the decision of the Circuit Court of Hampshire County in part
and reverse the decision in part.
Affirmed in part and reversed in part.
Footnote: 1 According to Catron's Defendants [sic] Brief for the Granting of Defendants
[sic] Motion to Temporarily Enjoin the Plaintiffs, New Testament Faith Assembly of God
Church, from Blocking the 40 Foot Entrance Road to the Capon Bridge Resort
Subdivision from State Route No. 15, filed below on February 13, 2004, the plat to the
subdivision was filed on December 19, 1979, and then re-recorded on October 14, 1980,
and again on April 29, 1981.
Footnote: 2 There are several plats included in the record, which date back to October 15,
1979, and which are based on a survey performed on January 3, 1973. One of the plats
notes that it was revised on October 9, 1980, and then again on April 13, 1981. It is
unclear what those revisions were.