Hyre v. Waddy

Bruce E. Hyre Jr., Respondent/Defendant Below, Petitioner v. William W. Waddy, VI, Petitioner/Plaintiff Below, Respondent

No. 19-0487

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

July 30, 2020

(Grant County 15-C-17)

MEMORANDUM DECISION

Petitioner Bruce E. Hyre Jr., by counsel Duke A. McDaniel, appeals the Circuit Court of Grant County's April 30, 2019, order denying his motion to alter or amend the order granting a permanent injunction, which prohibited petitioner from interfering with respondent's use of a disputed right-of-way. Respondent William W. Waddy, VI, by counsel David R. Collins, filed a response.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

According to the circuit court, respondent has a written easement appurtenant to the right-of-way at issue (approximately one-half mile), which is recorded among the land records in Grant County, West Virginia. Pursuant to the terms of the grant creating the easement, the use of the right-of-way extends beyond the roadway itself and provides that snow removal is necessary "outside the actual tracks of the roadway." The grant provides that the "historical gates that have existed on the roadway, and which presently exist, give a clear indication as to the actual width and use of the roadway." However, the width of the "roadway" is distinct from that of the "right-of-way." The circuit court further found that a gated opening of approximately sixteen feet existed at the time of the express grant creating the easement and that such gate is therefore an indication as to the actual roadway or, at a minimum, the actual use of the roadway, exclusive of snow removal and water breaks. In addition, according to the terms of the express easement, the gate has not historically been locked. The circuit court found "[t]hat, based upon the judicial view of the property, the gate posts are adequately constructed and do not require further reinforcement. That [respondent] now owns a tract of land on the far end of the roadway, together with the prescriptive rights of his predecessor in title."

The circuit court also found that respondent

has proven, by clear and convincing evidence, that he used the right-of-way in an open and notorious and continuous manner for more than thirty years without the express or implied permission of the owner of the land. However, [respondent] does not require a prescriptive easement, as he has a recorded easement. [Respondent's] use of the easement is relevant; however, to show the width and scope of the written easement. That [respondent's] use, which includes, inter alia, commercial cattle farming for himself, his family, and his workers and timbering has required a minimum clearance of sixteen feet (16'), as is necessary for the ingress and egress of certain farm equipment, which exceeds the bounds of the current roadway itself. Additionally, [respondent's] use and express easement require additional width for the purpose of snow removal and waterbreaks [sic].

The circuit court specifically found respondent's testimony to be "highly credible and trustworthy."

In its order, the circuit court set forth that petitioner placed an electric gate across respondent's right-of-way and otherwise interfered with respondent's use of the right-of-way, which, by order entered on June 29, 2015, petitioner agreed to remove. Petitioner also agreed not to obstruct respondent's right-of-way or in any manner interfere with the free and unfettered use of the right-of-way. Petitioner also previously placed rocks and fencing within respondent's right-of-way and otherwise interfered with respondent's use of that right-of-way. On May 2, 2017, the circuit court entered an order setting forth petitioner's agreement to remove that fencing and again agreeing not to obstruct respondent's right-of-way. However, respondent sought an injunction in the instant action after petitioner erected a post and woven wire fence along the eastern side of the roadway. Petitioner then began erecting a similar fence on the western side of the roadway, which was enjoined by the circuit court by order entered on April 12, 2018. The circuit court determined that the

woven wire fence is, at least in several locations, closer to the roadway than was the T-post fence which [petitioner] previously agreed to remove for obstructing [respondent's] right-of-way. That [petitioner's] actions demonstrate to this [c]ourt a pattern of harassment, obstruction, and interference with [respondent's] unfettered use of the right-of-way, from which [petitioner] agreed to refrain. That, were [petitioner] permitted to keep the woven wire fence at its current location and/or erect a fence on the other side of the roadway, this would—either by accident or design—have the effect of boxing in [respondent] and preventing him from moving equipment and removing snow, which is necessary for his livelihood.

Finally, the circuit court concluded that

[g]iven the location of the fence, the right-of-way will be difficult or impossible to maintain regarding the moving of equipment, runoff drainage, or snow and ice removal, and any oncoming vehicles encountered by [respondent] or his workerswill not be able to pull over to allow the other to pass along sections of the roadway. If [petitioner] is not required to remove the existing fence and permanently enjoined from further construction of fencing within fifteen feet of either side of the now existing roadway, [respondent] will suffer irreparable harm. Whereas, by comparison, the harm to [petitioner] in requiring him to set back his fence is minimal. Based upon the [c]ourt's familiarity with the right-of-way in question from the judicial view and all the matters before it, the above-stated setbacks are reasonably necessary for [respondent's] use and the use that existed when the express easement was given. The [c]ourt finds that [respondent's] use, as set forth above, is consistent with the grant creating the easement.

In its conclusions of law, the circuit court found that the right-of-way at issue is an easement appurtenant and that respondent does not require a prescriptive easement, as he has a recorded easement. Further, respondent's use of the easement is relevant to show the width and scope of the written easement. Petitioner

is bound by the terms of the recorded easement, as well as the actual use made by [respondent] and his family over the decades. Here, that use requires a minimum clearance of sixteen feet . . . for ingress and egress, due to the width of certain equipment, as well as sufficient area for waterbreaks [sic] and snow removal.

Thereafter, the circuit court granted respondent's motion for a permanent mandatory, prohibitory, and prescriptive injunction; dismissed petitioner's counterclaim with prejudice; ordered that petitioner not obstruct respondent's right-of-way or in any manner interfere with the free and unfettered use of respondent's right-of-way; ordered that the gate from the public road to the right-of-way remain unlocked and no other gate be erected that will interfere in any way with respondent's free and unfettered use of the right-of-way; ordered that the gateway shall be no less than sixteen feet in width; ordered petitioner to remove any existing fence along the roadway beyond the location of the gate; prohibited petitioner from erecting any fencing or placing any obstruction within fifteen feet of the eastern or western edge of the now-existing roadway; and petitioner was ordered not to erect any fencing or place any obstruction within the roadway itself or within any distance of the now-existing roadway that would in any manner whatsoever interfere with or obstruct the now-existing water breaks. Each party was ordered to bear their own costs and expenses, including attorney's fees.

On March 25, 2019, petitioner filed a motion to alter or amend the order granting permanent injunction. However, the circuit court denied that motion by order entered on April 30, 2019. Petitioner appeals from that order.

With regard to motions to alter or amend a judgment, this Court has held as follows:

"'"The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." Syllabus point 1, Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).'

Syllabus point 2, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999)." Syllabus Point 1, Alden v. Harpers Ferry Police Civil Service Comm'n, 209 W.Va. 83, 543 S.E.2d 364 (2001).

Syl. Pt. 3, Veltri v. Parker, 232 W. Va. 1, 750 S.E.2d 116 (2013). As to the circuit court's award of a permanent injunction, our review is for an abuse of discretion:

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 or a permanent injunction, whether preventative 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 Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956).

Mountain Valley Pipeline, LLC v. McCurdy, 238 W. Va. 200, 204 793 S.E.2d 850, 854 (2016).

On appeal, petitioner sets forth eleven assignments...