Crane v. Hayes

417 S.E.2d 117, 187 W. Va. 198, 1992 W. Va. LEXIS 51
CourtWest Virginia Supreme Court
DecidedApril 29, 1992
Docket20079
StatusPublished
Cited by6 cases

This text of 417 S.E.2d 117 (Crane v. Hayes) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crane v. Hayes, 417 S.E.2d 117, 187 W. Va. 198, 1992 W. Va. LEXIS 51 (W. Va. 1992).

Opinion

PER CURIAM:

This is an appeal by Mary Marie Hayes and Mae Christine Hayes from a May 15, 1990, order of the Circuit Court of Green-brier County which effectively granted the appellees, Daniel and Cynthia Crane and Clifton and Betty Tuckwiller, a prescriptive easement across land owned by the appellants. 1 The appellants contend that the trial court erred in granting such easement. We agree and reverse the decision of the Circuit Court of Greenbrier County.

I.

Mary Marie Hayes and Mae Christine Hayes own two separate pieces of property adjoining one another and situated on U.S. Route 12 near Asbury, West Virginia. Ap-pellees Cranes and Tuckwillers own separate pieces of property situated behind the properties of the appellants. Although the appellees may gain access to their properties without traversing the appellants’ properties, they have also made use of a road which proceeds from Route 12 through the appellants’ properties to the appellees’ properties. 2 There appears to be no dispute that this road was originally used in the 1920’s to the 1930’s as a logging road for access to a sawmill and has since been used for agricultural purposes. Several witnesses testified, for instance, that they had used the road to gain access to firewood or to check fences. No homes, however, were constructed or occupied along the road.

The precise use of the property over the past ten years, however, is disputed. Mr. Crane contends that, in addition to the agricultural uses of the road which have been made for several years, he began clearing the road when he purchased his property in 1980 for the purpose of gaining access to an area on which he intended to build two residences. He testified that he began *200 clearing brush with small equipment and later with a larger bulldozer. Mr. Crane also testified that he graded a particular stretch of the road and has frequently had small dozers, backhoes, and graders on the road since he purchased his property. 3

The appellants, however, maintain that they were not aware of such extensive use of small machinery on the road for clearing purposes. 4 The appellants were aware, however, of occasional use of the property for agricultural purposes as explained above. Moreover, they maintain that even if the appellees are entitled to continued use of the road for purposes of removing firewood and checking their fences, consistent with usage during the past ten years, the appellees do not have the right to convert the road to a residential roadway.

On approximately July 15,1989, in apparent response to the realization that the appellees intended to use the road as a public right of way, the appellants caused the road to be blocked and refused to allow the appellees to gain access to their properties through the appellants’ properties. Subsequent to an August 9, 1989, hearing, the Circuit Court of Greenbrier County granted a temporary injunction restraining the appellants from blocking the road. Additional testimony was taken on April 20, 1990, to determine whether the injunction should be made permanent. The lower court then granted the permanent injunction which effectively authorized a prescriptive easement across the properties of the appellants. It is from that determination of the lower court that the appellants now appeal.

II.

We have consistently recognized that a prescriptive easement may be created through certain usages of property. We explained the following in syllabus point 2 of Norman v. Belcher, 180 W.Va. 581, 378 S.E.2d 446 (1989):

“ ‘The open, continuous and uninterrupted use of a road over the land 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.’ Syl. pt. 1, Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908 (1954).” Syllabus Point 2, Keller v. Hartman, [175] W.Va. [418], 333 S.E.2d 89 (1985).

Furthermore, as we stated in syllabus point 3 of Norman, “‘ “The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing evidence.” Syl. pt. 1, Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976).’ Syllabus Point 3, Keller v. Hartman, [175] W.Va. [418], 333 S.E.2d 89 (1985),” see also Cramer v. West Virginia Dept. of Highways, 180 W.Va. 97, 375 S.E.2d 568 (1988).

It is also recognized that the burden placed upon the land during the ten-year statutory period may not be increased, and the proposed use to be made of the prescriptive easement must be of the same nature as the uses exercised during the statutory period. “ ‘The character and purpose of an easement acquired by prescription are determined by the use made of it during the prescriptive period.’ Syl. pt. 3, Burns v. Goff, [164] W.Va. [301], 262 S.E.2d 772 (1980).” Syl. Pt. 3, Hanshew v. Zickafoose, 173 W.Va. 151, 313 S.E.2d 427 (1984). In Hanshew, property owners sought an injunction to prevent the use of a lane on their property as a means of access *201 to the defendants’ new residence. We recognized that the defendants had acquired a prescriptive easement over the lane through frequent use to make fence repairs. However, we further acknowledged “that the easement is of limited scope.” Id., 173 W.Va. at 153, 313 S.E.2d at 429. We explained that the defendant “only has an easement for maintenance of the fence. He cannot use the lane for a different purpose than he made of it over the years.” Id. We concluded that the use could not “be expanded to include vehicular use for ingress or egress to the new residence.” Id.

Similarly, in the present case, the additional burden of usage for residential purposes does not come within the purview of the original prescriptive easement which had been acquired by the appellees. Various witnesses testified regarding the usage of the land during the prescriptive period. Mr. Crane testified that he purchased the property in 1980 and began clearing the road with small machinery for the purpose of preparing his property for the construction of two residences.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

O'DELL v. Stegall
703 S.E.2d 561 (West Virginia Supreme Court, 2010)
Newman v. Michel
688 S.E.2d 610 (West Virginia Supreme Court, 2009)
Stroda v. Joice Holdings, LLC
207 P.3d 223 (Supreme Court of Kansas, 2009)
Carr v. Constable
470 S.E.2d 408 (West Virginia Supreme Court, 1996)
Strahin v. Lantz
456 S.E.2d 12 (West Virginia Supreme Court, 1995)
Jamison v. Waldeck United Methodist Church
445 S.E.2d 229 (West Virginia Supreme Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
417 S.E.2d 117, 187 W. Va. 198, 1992 W. Va. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crane-v-hayes-wva-1992.