Streibich v. Underwood

2021 VI 3

BRUCE STREIBICH, Appellant/Defendant, v. KAREN R. UNDERWOOD, WARREN STRYKER, AND MARGARET STRYKER, Appellees/Plaintiffs.

S. Ct. Civ. No. 2019-0038

SUPREME COURT OF THE VIRGIN ISLANDS

Argued: February 11, 2020

March 23, 2021

For Publication

Re: Super. Ct. Civ. No. 459/1995 (STT)

On Appeal from the Superior Court of the Virgin Islands Division of St. Thomas/St. John

Superior Court Judge: Hon. Renee Gumbs Carty

BEFORE: RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice; and IVE ARLINGTON SWAN, Associate Justice.

APPEARANCES:

Carol Ann Rich, Esq. (argued)

Malorie R. Winne Diaz, Esq.

Dudley Rich LLP

St. Thomas, U.S.V.I.

Attorneys for Appellant,

Andrew C. Simpson, Esq.

Andrew C. Simpson, P.C.

St. Croix, U.S.V.I.

Attorney for Appellees.

OPINION OF THE COURT

HODGE, Chief Justice.

¶ 1 Bruce Streibich appeals from a February 25, 2019 order of the Superior Court granting Warren and Margaret Strykers' motion for partial summary judgment on their request for a permanent injunction preventing Streibich from blocking plaintiffs' access to an alleged dirt road on his property. For the reasons that follow, we affirm in part and reverse in part.

I. BACKGROUND

¶ 2 On June 6, 1956, Marshall and Sidney Dierssen bought Parcel 4 Estate Tabor & Harmony in St. Thomas, consisting of 100 undeveloped acres. In 1958 the Dierssens filed subdivision plan PWD B9-31-T57 ("T57"), depicting their intention to subdivide the property into 19 parcels and a private road system. T57 shows three roads, labeled as "private road" and drawn with detailed metes and bounds. T57 also shows a marked passage referred to as "R.O.W.," which has no metes or bounds or other descriptors. The R.O.W. appears to bisect Parcel No. 4-22, then continue along the boundary line between Parcel Nos. 4-22 and 4-26 (approximately half in each parcel) and into Parcel No. 4-27.

¶ 3 On November 9, 1962, the Dierssens sold Parcel No. 4-26, the parcel currently owned by Appellant, to Norman and June Brilliant. The deed to the Brilliants (as well as every other deed from the Dierssens) transfers the property in question

. . . as more fully shown on [T57], a copy of which is hereto annexed and made a part hereof as though more fully set forth herein . . .

TOGETHER with all the appurtenances and all the estate, title, rights and interest of the parties of the first part [the Dierssens], their heirs and assigns, in and to said premises, including a perpetual easement to the parties of the second part [the Grantees], their heirs and assigns, to run with the land over all roads in Parcel No 4 which are now in existence or shall hereafter be constructed for ingress and egress from the Public Road or otherwise.

(i) Easements and rights-of-way are hereby expressly reserved for the creation, construction and maintenance of utilities, such as gas, water, telephone, telegraph, electricity, storm drains and land drains, public, quasi-public and private, as well as for any public, private or quasipublic utility or function deemed necessary and/or expedient by the parties of the first part for the public health and welfare. Such easements and right-of-way shall be confined to the rear five (5) feet of every parcel and five (5) feet along the side of every building parcel and along every street of the subdivision.

(j) The common roadways shall be constructed by and at the cost and expense of the Parties of the first Part in a proper manner with adequate ditches, drains and culverts to provide proper drainage. Thereafter, the parties of the first part, the parties of the second part, and all subsequent purchasers of Parcel No. 4 Estate Tabor and Harmony shall maintain the road upon which their property abuts in Parcel 4 in reasonably good condition on a pro rate expense basis, according to the acreage of the sub-divided residential parcels abutting on said road, until such time as the Government accepts a dedication of said road.

(emphasis added). In 1969 the Brilliants sold Parcel No. 4-26 to Sylvia Weaver, who on August 6, 1981, sold the property to Brenton and Susan Lugo Battles. In 1989, Brenton Battles conveyed Parcel No. 4-26 to Streibich by Warranty Deed.¹ This deed conveyed "Parcel No. 4-26 Estate Tabor and Harmony . . . as shown on P.W.D. No. D9-4345-T88 ["T88"]. . . SUBJECT, HOWEVER, to . . . easements of record." (J.A. 88.) T88 depicts a corridor outlined by dotted lines (as opposed to estate roads, which are drawn with solid lines), labeled as "20' easement to Parcels 4-27 and 4-28" and with the notations that "dirt road is within this easement" and "exit to public road see [T57]." However, the marked corridor is in a slightly different location from the R.O.W. depicted on T57.

¶ 4 Parcel No. 4-27, Underwood's property, was transferred from the Dierssens' estates to Susan Lugo on March 30, 1990, under a warranty deed that described the property as "more fullyshown on [T57]" and conveyed it "TOGETHER WITH all right, title and interest of Grantor to use of the estate roads and rights-of-way shown on [T57] for ingress and egress." (J.A. 91.) On January 23, 1994, Lugo conveyed the property to Underwood "as shown on P.W.D. No. D9-4961-T90"; that map depicts dotted lines labeled as the "approximate location of a 20' easement to Parcel No. 4-28." (J.A. 302, 283.)

¶ 5 Parcel No. 4-28, the Strykers' property, was transferred by the Dierssens to George and Jean Vander May on April 23, 1963 using the Dierssens' standard warranty deed. (J.A. 6.) Subsequent transactions are not part of the record until March 30, 2001, when Noreen McCarthy conveyed the property to the Strykers "as shown on [T57] . . . TOGETHER WITH . . . easements for ingress and egress over estate roads, all as of record appear." (J.A. 107.)

¶ 6 It is currently unclear whether there is in fact a dirt road over Parcel No. 4-26. Underwood and the Strykers argue that the road exists and that it was regularly used by Underwood's predecessors in title; Streibich admits that the area "has the appearance that it could function as a road serving Plaintiff[s'] parcel," but maintains that it was overgrown when he bought the property and has never been used as a road. (J.A. 198.) He submitted two third-party affidavits stating that since 1967 there has been no road across Parcel No. 4-26 leading to Parcel Nos. 4-27 and 4-28.

¶ 7 On June 20, 1995, Underwood filed suit in the Superior Court, requesting that the court declare that she had an easement over the alleged dirt road over Parcel No. 4-26. Streibich responded on August 18, 1995. Over the next 24 years, the suit proceeded in fits and starts, with several multi-year periods during which there was no activity. On March 19, 1996, Underwood filed a motion for summary judgment granting a declaratory judgment that she had an easement as shown on T57.² In May 2002 the Strykers sought to intervene, seeking both a permanent injunction and damages.³ Thereafter, on December 29, 2010, they filed a motion for partial summary judgment, seeking an order "confirming [Stryker's] right to use the right of way over Defendant's property to access [Stryker's] property" as well as "issuance of a restraining order preventing Defendant from restricting access across the easement, preventing the maintenance, repair and clearing of the easement, threatening those who use the easement or slandering title or interfering with prospective contractual relations and dismissal of Defendant's counterclaim." (Intervenor's Mem. in Support of Motion for Partial Sum. Judg., Dec. 29, 2010.)

¶ 8 On August 9, 2016, the case was assigned to the current judge, who first held a status conference on May 15, 2018. On October 26, 2018, Arthur Schmauder, Elizabeth McGuire, and Blue Water Retreat, LLC, the owners of Parcels Nos. 4-25 and 4-22B, filed a motion to intervene. After several back-and-forth motions, on February 4, 2019, the court conducted a site inspection, Underwood v. Streibich, 70 V.I. 179, 209 (V.I. Super. Ct. 2019), and on February 15, 2019, denied Schmauder, McGuire, and Blue Water Retreat's motion to intervene. On February 25, 2019, the Court issued memorandum opinions granting: (1) Underwood's motion for summary judgment on her claim that an easement existed over the alleged dirt road in favor of Underwood and the Strykers, and (2) the Strykers' motion for partial summary judgment granting a permanent injunction to prevent Streibich from blocking access to the alleged dirt road. The active portion ofthe order in the Stryker case states, in its entirety: "it is hereby ORDERED that Intervening Plaintiffs' motion for partial summary judgment is GRANTED; and it is further ORDERED that a copy of this Order shall be directed to [defendant]." (J.A. 18.) The order in the Underwood case states similarly that "it is hereby ORDERED that Plaintiff's motion for summary judgment is GRANTED." (J.A. 52.)

¶ 9 On March 21, 2019, the parties participated in a status conference with the Superior Court. The Court observed that the only outstanding issue was the damages claim by the Strykers (J.A. 436). The judge also stated, in response to a question concerning the easement's location, that "I made it very clear, abundantly clear in my opinion, that the easement should be made accessible to 4-27, and 4-28, the Strykers and the Underwood families. So I don't see why you're asking now about the specifics of this particular road. It's the same road that you all walk across." (J.A. 439-40.) The judge also acceded to the assertion by plaintiffs' counsel that the grant of the motion for partial summary judgment had effected all of the relief sought in the motion, as noted above (J.A. 438.)

¶ 10 On March 26, 2019, Streibich timely filed the instant appeal.

II. DISCUSSION

A. Jurisdiction and Standard of Review

¶ 11 This Court has appellate jurisdiction over "all appeals arising from final judgments, final decrees or final orders of the Superior Court." 4 V.I.C. § 32(a); 48 U.S.C. § 1613a(d). A final order is one that resolves all claims of all partie...