                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1279


PATRICK HENRY ESTATES HOMEOWNERS ASSOCIATION, INCORPORATED,
a West Virginia corporation,

                Plaintiff - Appellee,

          v.

GERALD MILLER, Dr.,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cv-00175-JPB)


Submitted:   December 20, 2011            Decided:   January 20, 2012


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Richard G. Gay, Nathan P. Cochran, LAW OFFICE OF RICHARD G. GAY,
LC, Berkeley Springs, West Virginia, for Appellant.     Braun A.
Hamstead, HAMSTEAD & ASSOCIATES, L.C., Charles Town, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Patrick       Henry    Estates           Homeowners      Association,

Incorporated          (“Association”)       brought       an    action   against     Dr.

Gerald Miller, the present owner of certain properties within

the residential development, Patrick Henry Estates Subdivision

(“Subdivision”), seeking injunctive and declaratory relief, as

well       as   compensatory     damages. ∗        Miller      appeals   the   district

court’s order granting the Association permanent injunctions and

compensatory damages.             We have thoroughly reviewed the record

and find no reversible error.               Accordingly, we affirm.

                The Subdivision is accessed from U.S. Route 340 over a

short public roadway known as Patrick Henry Way, which becomes a

private road as it enters the Subdivision, running in a northern

direction and providing access to lateral side streets.                         Miller

obtained ownership of the Subdivision in 1986 and sold Sections

C    and    D   to    other   developers,        but    retained   ownership    of   the

common areas, roadways, and Lot C-1.                       The Declaration of Road

Maintenance          Covenants   and   Restrictions         (“Declaration”),       which

governs the real property within the Subdivision, provides that

it    is    the      responsibility    of   the        developer   “to   maintain    the


       ∗
       The case was originally filed in the Circuit Court of
Jefferson County, West Virginia, and later removed to the
District Court for the Northern District of West Virginia by
Miller, based upon federal diversity jurisdiction.



                                             2
streets, and all common properties . . . until such time as

these amenities are dedicated and deeded to the Association.”

In addition, the Declaration provides that the developer “shall

convey the common properties to the Association . . . not later

than   January     1,   1987.”         Miller       attempted        to    have    the   State

Highway    Department         take    over     road       maintenance        to    avoid    his

responsibility      to    maintain           the        streets,     did     not     complete

construction of the roads by January 1, 1987, and did not convey

the roadways to the Association once completed.                             The parties do

not dispute that the roads, as well as the drainage system, were

in need of repair at the time of trial.                            In addition, Miller

permitted weeds and grass to grow to an excessive height on Lot

C-1.

               In July 2008, Miller informed the Association of his

intent    to    develop       land    located       immediately           adjacent    to   the

Subdivision into a residential apartment complex, known as Sloan

Square Apartments (“Sloan Square”).                       Miller planned to utilize

Lot C-1, which the plat of Patrick Henry Estates describes as a

residential      lot,    as    a     roadway       to    access    Sloan      Square.        In

addition, approximately 42 acres of the Subdivision, which lie

immediately adjacent to the existing residential development to

the north, were never developed.                        In 2006, Miller annexed the

42-acre    undeveloped         parcel     into          the   City    of     Ranson,       West

Virginia, intending to construct a residential and commercial

                                              3
development on the parcel, known as the Village of Shenandoah

Springs (“Village”).          Miller purchased a lot in the adjacent

existing Shenandoah Springs Development to use as one of two

access points to the Village.            Prior to this litigation, Miller

anticipated annexing Patrick Henry Way into the City of Ranson

as well, to serve as the second access point.                       In order to

complete this construction, however, Miller needed to reserve

unrestricted rights of way through the Subdivision streets.

              Upon discovery of Miller’s intended construction, the

Association filed a complaint against Miller, seeking: (1) a

permanent injunction requiring Miller to maintain the roads in

the    Subdivision,     or,    alternatively,        damages   to   conduct    the

necessary repairs; (2) a permanent injunction requiring Miller

to dedicate and deed the common elements within the Subdivision

to    the   Association;      (3)   a   permanent      injunction    prohibiting

Miller from using Lot C-1 as an access roadway to Sloan Square;

(4) a permanent injunction requiring Miller to maintain Lot C-1

in accordance with the Declaration; and (5) compensatory damages

of    not   less   than    $250,000     for    the    Association’s       previous

expenditures to maintain the roadways from 1985 to the filing of

the instant lawsuit.

              Following a bench trial, the district court found that

the Declaration unequivocally required Miller to maintain the

roads   and    common   properties      in    the   Subdivision,    and    ordered

                                         4
Miller to bring the roads, drainage, and other common elements

of Patrick Henry Estates up to the condition that would have

existed     had     they      been    properly      maintained        since       their

construction.       In the alternative, the court ordered Miller to

pay the Association an amount equal to the cost provided by the

Association’s contractor to perform the work.                      The court also

awarded    the     Association       an    injunction      requiring       Miller    to

execute a deed conveying the common elements of the Subdivision

to the Association.

            With respect to the scope of Miller’s easement, the

court found that Miller may utilize a reserved right of way over

Patrick Henry Way to access the residue of his property to the

north     for     limited     commercial       purposes,     but     may    not     use

Beauregard Boulevard or Greene Avenue, lateral side streets in

the Subdivision, to access any commercial development, as these

roadways exist to access single-family homes.                  Additionally, the

court ruled that Miller may not utilize Patrick Henry Way to

access property in addition to the residual portion of Patrick

Henry   Estates,     as     this   would   cause   the     roadway    to    become    a

“through road,” greatly increasing the traffic and extending the

easement to other lands owned by Miller.                 The court granted the

Association an injunction prohibiting Miller from utilizing Lot

C-1 as a roadway, as it would be impossible to access Sloan

Square through Lot C-1 without crossing the “Walking and Buffer

                                           5
Area” directly behind the lot, which is a common element of the

Subdivision      owned    by    the     Association.           Further,       the        court

ordered Miller to maintain Lot C-1 “in such a manner that the

grass or other vegetation thereupon does not reach a height of

eight (8) inches.”           Finally, the court awarded the Association

compensatory     damages       in   the    amount     of      $51,387       for    expenses

incurred by the Association in maintaining the Subdivision since

1998, but denied the Association’s request for attorney’s fees.

           We review a district court’s conclusions of law at a

bench trial de novo and its factual findings for clear error.

Roanoke Cement Co. v. Falk Corp., 413 F.3d 431, 433 (4th Cir.

2005).     On    appeal,       Miller     contends      that    the    district          court

erroneously prohibited the use of Patrick Henry Way to access

property in addition to the residual portion of the Subdivision—

the 42 acres of undeveloped land.                   Miller first contends that

the   district    court      misinterpreted       the      plain      language      of     the

Declaration      and   the     Subdivision       deeds.         The    deed       from    the

original   grantor        (Shendo)        reserving      an     easement          over    the

Subdivision’s roadways, which appears in the chain of title for

all of the lots located in Section B and D of the Subdivision,

states in relevant part: “The Grantees acknowledge that Shendo

has   reserved     and    retained      the     right    to    provide       within        the

Patrick    Henry       Estates      Subdivision          areas        for    commercial,

educational,      civic,       social,      charitable,         medical       and        other

                                            6
purposes.”     Based upon this language, Miller argues that he is

entitled to reserve unrestricted easements and rights of way

that would allow him to complete the development of the 42-acre

property.

            Pursuant    to    West    Virginia    law,      which      governs   this

diversity    lawsuit,        “[t]he     fundamental      rule       in    construing

covenants and restrictive agreements is that the intention of

the parties governs.         That intention is gathered from the entire

instrument by which the restriction is created, the surrounding

circumstances and the objects which the covenant is designed to

accomplish.”     G. Corp., Inc. v. MackJo, Inc., 466 S.E.2d 820,

825 (W.Va. 1995) (citing Wallace v. St. Clair, 127 S.E.2d 742,

751 (W.Va. 1962)).        Further, the owner of an easement “cannot

materially increase the burden of it upon the servient estate,

nor impose a new or additional burden thereon.”                     Nat’l Lead Co.

v. Kanawha Block Co., 288 F. Supp. 357, 365 (S.D.W. Va. 1968).

“An easement of a right of way over another’s property . . . is

not   personal   to    the     owner,    authorizing        him   to     use   it   in

connection   with     other    real     estate   he   may    own.”        Dorsey    v.

Dorsey, 153 S.E. 146, 146 (W.Va. 1930); see also Ratcliff v.

Cyrus, 544 S.E.2d 93, 97 (W.Va. 2001) (“[A]n easement cannot be

extended as a matter of right, by the owner of the dominant

estate, to other lands owned by him.”) (internal quotation marks

and citation omitted).

                                         7
             The     district       court     correctly          held     that      Miller’s

intended     use    of     Patrick     Henry      Way     to     connect      his   planned

Village,     located       on    the   42-acre         undeveloped        parcel    of     the

Subdivision,       to      the    adjoining       existing        Shenandoah        Springs

Development,       would        overburden       the     easement       and    exceed      its

intended scope.          The deed language reserves an easement over the

Subdivision roadways for future commercial, educational, civic,

social, charitable, or medical developments “within the Patrick

Henry   Estates      Subdivision       areas.”         (emphasis     added).         Miller

seeks   to   impermissibly          extend       the    reserved     easement       through

Patrick    Henry     Way    beyond     the    dominant         property—Patrick          Henry

Estates—into       the     adjacent    Shenandoah         Springs       Development        lot

owned by Miller, so as to access the City of Ranson.                                 As the

district     court       correctly     found,          Miller     cannot      utilize      his

reserved easement to access property he owns outside of Patrick

Henry   Estates.         Moreover,      we    find      unimpeachable         the    court’s

finding    that    Miller’s        intended      use     of     Patrick    Henry     Way    to

connect      his     planned       Village        to      the     Shenandoah         Springs

Development and the City of Ranson would expose the Subdivision

to traffic from a major highway, Flowing Springs Road, thereby

significantly increasing the roadway traffic and overburdening

the easement.

             Miller next contends that the district court’s failure

to consider the City of Ranson’s Annexation Order, which annexed

                                             8
Miller’s    42-acre        undeveloped       property         into     the     Ranson    city

limits, “usurp[ed] the plenary power of the City of Ranson.”

According      to   Miller,        “the    District         Court     ruled    that   Miller

cannot    connect     his     undeveloped          property         (now    lying     totally

within Ranson) to the Ranson city streets.”                                However, Miller

plainly    misconstrues          the    holding        of   the     district    court;    the

court’s order prohibits Miller from utilizing Patrick Henry Way

to    access      property       beyond     the        42-acre      undeveloped       parcel,

namely,     the     existing       Shenandoah          Springs       Development,       which

connects       to     the        highway          of        Flowing        Springs      Road.

Notwithstanding the court’s order, Miller may still utilize the

lot    purchased     in      the       adjacent        existing      Shenandoah       Springs

Development to access the planned Village, thereby connecting

the Village to the City of Ranson.

            Miller next argues that the district court erroneously

found that Miller may not use Lot C-1 as an access point to

reach Sloan Square.           Miller asserts that the Declaration permits

him to change the use of Lot C-1 from residential to street

access.        However,      a     “Walking       and       Buffer    Area”     is    located

immediately       behind     Lot    C-1,    which        is   a     “common    element”    of

Patrick Henry Estates subject to the court-ordered conveyance to

the Association.           Therefore, the district court correctly held

that Miller may not construct a roadway on Lot C-1 across the



                                              9
“Walking and Buffer Area,” now owned by the Association, without

the Association’s permission.

               Miller next argues that the district court erred in

awarding       the       Association      permanent        injunctions       prohibiting

Miller    from       using      Patrick    Henry    Way    to     access    property   in

addition       to    the    residual      portion    of    Patrick    Henry     Estates,

prohibiting Miller from using other lateral side streets of the

Subdivision         to    access    commercial      development,      and    prohibiting

Miller from using Lot C-1 to access Sloan Square.                           According to

Miller, the court’s injunctions have the effect of prohibiting

his intended development on the 42-acre property, as well as

Sloan    Square,         because    current    subdivision        regulations    require

two   entrances,          and    the   court-ordered       injunctions       leave   both

developments with only one entrance.                      Thus, Miller argues, the

injunctions are more burdensome than necessary and broader in

scope than necessary.

               The grant of a permanent injunction is reviewed for

abuse of discretion.               Va. Soc’y for Human Life, Inc. v. Fed.

Election Comm’n, 263 F.3d 379, 392 (4th Cir. 2001).                             In doing

so, we review the district court’s factual findings for clear

error    and    its      legal     conclusions      de    novo.     Id.      Under   West

Virginia law, a permanent injunction is appropriate “where the

right of an applicant seeking relief is clear and the necessity

for such relief is urgent.”                 Sams v. Goff, 540 S.E.2d 532, 535

                                              10
(W.Va. 1999) (citing State Rd. Comm’n v. Oakes, 149 S.E.2d 293

(W.Va. 1966)).       Further, “[f]or the existence of a legal remedy

to bar injunctive relief, it must appear that the legal remedy

is as practical and efficient to secure the ends of justice and

its prompt administration as injunctive relief.”                            Id. (citing

Consumers Gas Util. Co. v. Wright, 44 S.E.2d 584 (W.Va. 1947)).

In deciding whether to grant a mandatory injunction, a court

should consider “the nature of the controversy, the object for

which    the     injunction      is    being      sought,   and      the    comparative

hardship   or     convenience         to   the    respective   parties       involved.”

Foster v. Orchard Dev. Co., LLC, 705 S.E.2d 816, 827 (W.Va.

2010).     We     find   that    the       district   court    did    not    abuse    its

discretion in awarding the Association permanent injunctions, as

a remedy at law would be inadequate.

            Miller next asserts that the district court abused its

discretion in awarding the Association damages at law for prior

maintenance provided by the Association, while also awarding the

Association       permanent       injunctions         prohibiting          Miller    from

utilizing Lot C-1 to access Sloan Square or Patrick Henry Way to

access property beyond the 42-acre parcel, as well as ordering

Miller to bring the roadways up to the condition that would have

existed    had    the    roads    been      properly    maintained         since    their

construction.



                                             11
              We review a district court’s award of damages under a

clearly erroneous standard.           See Kolkhorst v. Tilghman, 897 F.2d

1282, 1288 (4th Cir. 1990) (“The trial court, as a fact-finder,

possesses     considerable    discretion      in   fixing   damages,      and   its

decision will be upheld absent clear error.”) (citing Little

Beaver Enter. v. Humphreys Rys., Inc., 719 F.2d 75, 79 (4th Cir.

1983)).     We find that the court’s award of damages at law, as

well as an injunction requiring compliance with the Declaration,

was within the court’s discretion.

              Based on the foregoing, we affirm the judgment of the

district    court.     We    dispense    with   oral     argument    because    the

facts   and    legal   contentions      are   adequately    presented      in   the

materials     before   the    court    and    argument    would     not   aid   the

decisional process.

                                                                          AFFIRMED




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