Grist Lumber, Inc. v. Brown

550 S.E.2d 66, 209 W. Va. 530, 2001 W. Va. LEXIS 42
CourtWest Virginia Supreme Court
DecidedMay 11, 2001
DocketNo. 28722
StatusPublished
Cited by1 cases

This text of 550 S.E.2d 66 (Grist Lumber, Inc. v. Brown) 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
Grist Lumber, Inc. v. Brown, 550 S.E.2d 66, 209 W. Va. 530, 2001 W. Va. LEXIS 42 (W. Va. 2001).

Opinions

PER CURIAM:

This is an appeal by Mr. Paul R. Brown, Jr., (hereinafter “Appellant”) from a July 9, 1999, order of the Circuit Court of Greenbrier County finding that Grist Lumber, Inc., (hereinafter “Appellee” or “Grist Lumber”) was entitled to a prescriptive easement for timbering purposes across property owned by the Appellant and an April 12, 2000, order setting forth the width of such easement. The Appellant contends that the lower court erred in granting the prescriptive easement for timbering purposes because Grist Lumber failed to establish the use of the easement for timbering purposes during any ten-year period. The Appellant further contends that the use of the easement for timbering purposes with the express permission of the Appellant’s predecessor in title cannot provide the basis for a prescriptive easement for timbering purposes. The Appellant also maintains that the lower court erred in its determination of the width of the prescriptive easement.

Upon review of the briefs, arguments of counsel, and the record, we reverse the lower court’s conclusion that the easement may be used for timbering purposes, affirm the lower court’s conclusion regarding the width of the easement, and remand for entry of an order consistent with this opinion.

I. Facts and Procedural History

The Appellant purchased property in Greenbrier County, West Virginia, on September 29, 1997.1 Grist Lumber purchased adjoining property2 on May 11, 1998. Grist Lumber’s property had been owned since 1911 by its predecessors in title, the Coiner family.3 Grist Lumber maintained that an easement existed over the Appellant’s property, connecting Grist Lumber’s property to Rader Valley Road, and had been used continuously by the Coiner family since 1911. Upon its purchase of the property in 1998, Grist Lumber planned to utilize the easement to remove timber from its property. The Appellant denied access to the easement and placed a locked gate across the easement on July 23,1998.

On September 4, 1998, Grist Lumber filed an action in the lower court seeking damages and injunctive relief against the Appellant. Grist Lumber asserted that the Coiner family had used the easement in an open, notorious, and continuous manner for more than ten years, establishing a prescriptive easement. Grist Lumber further asserted that the easement had been used to transport lumber during the prescriptive period, thus justifying a finding by the lower court that [533]*533Grist Lumber was entitled to use the easement for that purpose.

Grist Lumber specifically relied upon two documents, dated 1982 and 1985, signed by the Appellant’s father, also his predecessor in title. These documents were both entitled “Right of Way Understanding.” The 1982 document, signed by Paul Brown, Sr., the Appellant’s father and predecessor in title, provided that Plum Creek, Inc., could make permanent improvements to the easement “for the purpose of removing timber products” from the Coiner property from October 28, 1982, through November 1, 1984, “or sooner if the operation is completed prior to November 1, 1984.” The 1985 document, again signed by Mr. Brown, Sr., provided that TODCO Wood Products could make permanent improvements to the easement “for the purpose of removing timber products” from the Coiner property from April 26, 1985, through December 1, 1986. Both instances of upgrades to the easement for the purpose of timber removal were completed at the expense of Paul Brown, Sr., the Appellant’s predecessor in title.

The lower court granted temporary injunc-tive relief on October 28, 1998, and held that Grist Lumber enjoyed a prescriptive easement for timbering purposes. The lower court explained as follows:

[Grist Lumber] has shown by clear and convincing evidence that there has been open, continuous and uninterrupted use of the roadway over [Brown’s] lands, under a bona fide claim of title ... for a period in excess of ten years. That the use aforesaid created an easement by prescription along the aforesaid roadway.
That during that period, on at least two occasions, the property had been timbered and the roadway had been used for removing timber. Additionally, the Court finds that at one time, there was a sawmill on the real estate of [Grist Lumber].

By order dated July 9, 1999, the lower court granted permanent injunctive relief after an evidentiary hearing. The lower court explained as follows in its very thorough findings of fact:

[Brown’s] father, also his predecessor in title, acknowledged the existence of a right-of-way across his lands in agreements executed in 1982 and 1985 which provided, among other things, that the roadway would be improved at the expense of [Grist Lumber’s] predecessors in title, and that the improvements to the roadway would be permanent in nature.
That in the period of the ownership of [Grist Lumber’s] predecessors in title, there is evidence that the dominant tenancy, which the prescriptive easement serves, was used for farming, residential, recreational, agricultural purposes, and, at least on two occasions, for commercial timber harvest.

In the conclusions of law in the July 9, 1999, order, the lower court held, in pertinent part, as follows:

[Grist Lumber] has demonstrated by clear and convincing evidence that from a period at least as early as the 1930’s, and perhaps as far back as 1909, [Grist Lumber’s] predecessors in title used the roadway crossing the lands of the [Appellant], or his predecessors in title, as the sole means of ingress to and egress from their property.
The Court finds that [Grist Lumber] has shown by clear and convincing evidence that there has been open, continuous and uninterrupted use of the roadway over [the Appellant’s] lands, under a bona fide claim of title, for a period in excess of ten years
[T]he character and purpose of the easement acquired by prescription as determined by the use made of it during the prescriptive period is sufficient to establish the following uses: farming, vehicular travel, residential, recreation, and timber harvesting and removal, as long as it does not interfere with the Brown property and it does not unduly burden it.

By order dated April 12, 2000, the lower court established that the easement would, generally, be twelve feet wide, “together with such additional space on either side as is necessary for [out-grading,] regular repair and maintenance.” The turns would be fourteen feet wide, except for two turns which [534]*534would be twenty feet wide each. The width of the right of way would be thirty feet at its point of intersection with Rader Valley Road. The lower court based its conclusions regarding the appropriate width of the easement upon aerial photographs of the easement, taken both before and after the 1982 and 1985 permanent improvements effected at the expense of the owner of the servient estate, Paul Brown, Sr.

The Appellant appealed to this Court, contending that the prescriptive easement cannot be used for removal of timber since the “character and purpose of the easement acquired by prescription is 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); Glain-Stefanelli v.

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Bluebook (online)
550 S.E.2d 66, 209 W. Va. 530, 2001 W. Va. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grist-lumber-inc-v-brown-wva-2001.