                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

David J. Weller, II,                                                              FILED
Plaintiff Below, Petitioner
                                                                               April 15, 2019
                                                                             EDYTHE NASH GAISER, CLERK
vs) No. 17-1043 (Berkeley County CC-02-2017-C-232)                           SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Thomas Carr and Kristine Carr,
Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioner David J. Weller, II, by counsel Katherine N. Ridgeway, appeals the October
31, 2017, order of the Circuit Court of Berkeley County that denied petitioner’s motion for a
declaratory judgment and injunctive relief regarding a right-of-way. Respondents Thomas Carr
and Kristine Carr, by counsel Kathy M. Santa Barbara, filed a summary response in support of
the circuit court’s order.

        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 Court finds no substantial
question of law and no prejudicial error. For these reasons, a memorandum decision affirming
the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

        Petitioner David J. Weller, II, owns a 2.3-acre tract of land in Berkeley County.
Respondents Thomas and Kristine Carr own several adjacent tracts that they have merged into
one 7.5-acre parcel. At issue in this appeal is a short, 139-foot-long, road [the “spur”] that runs
across respondents’ tract, and borders petitioner’s tract. The parties dispute whether petitioner
has an easement to use the spur.

        Mr. Weller’s 2.3-acre tract traces back to his parents’ 1982 purchase of land from Joseph
B. and Delva Boarman. On December 6, 1982, the Boarmans conveyed, via the “Boarman
Deed,” a 13.125-acre tract (the “Parent Tract”) to petitioner’s parents, David and Mary Weller. A
gravel road (also known as the “twelve foot right of way”) crossed the Parent Tract and
continued beyond it to several other tracts that are landlocked along the Potomac River. The spur
at issue in this case branches off the gravel road and crossed the Parent Tract toward the
northwest to serve several riverside tracts. At the time of conveyance, the riverside tracts were
owned by the Newton Baker VFW Post.

       The Boarman Deed created a 12-foot-wide right-of-way to use the gravel road, including
the spur, for the benefit of the landlocked tracts. The deed provides the following:

       The [Boarmans] herein do further grant and convey unto [petitioner’s parents], a

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       non-exclusive right of way for ingress and egress over a 12 foot wide right of way
       leading from West Virginia Secondary Route 2/1 to Newton D. Baker land and
       other lots along the Potomac River. Said conveyance is also subject to the right of
       others to also use said 12 foot wide right of way for purpose of ingress and egress
       to and from said other lands to West Virginia Secondary Route 2/1. Reference is
       hereby made to the aforementioned (1982) plat for a more particular location of
       said 12 foot wide right of way.

(Emphasis added.)

       Petitioner’s parents later divorced and petitioner’s father conveyed his interest in the
13.125-acre Parent Tract to petitioner’s mother in 1994. With regard to rights of way, the 1994
deed provided that the deeded real estate “is subject to all of those conditions, restrictions,
covenants, rights of ways, and easements as more fully set forth in the [Boarman Deed].”

       In 1999, Respondents Thomas and Kristine Carr bought two side-by-side parcels of land
(the “Baker Parcels”) from the Newton D. Baker VFW Post No. 896. These parcels were
adjacent to the 13.125-acre Parent Tract owned by petitioner’s mother. At that time, the Baker
Parcels were accessible only by way of the right-of-way across the gravel road and the spur on
the Parent Tract.

        Three years after buying the Baker Parcels, respondents purchased a .4894-acre tract
from petitioner’s mother. The February 6, 2002, deed from petitioner’s mother (the “Carr Deed”)
gave the Carrs a long narrow strip of land from the edge of the mother’s 13.125-acre Parent
Tract. This .4894-acre strip is located against the gravel road on one side and the Baker Parcels
on the other side. The location of the purchase suggests the Carrs bought the strip to give their
land direct access to the gravel road. Petitioner states in his complaint that upon conveyance the
.4894-acre tract merged with the Baker Parcels, creating one unified 7.5-acre tract owned by
respondents. A plat referenced in the 2002 Carr Deed also provides, “The 0.4894 acre tract
described hereon shall be merged into one property with the adjoining 7.0051 acre parcel . . . .”

        It appears from the plat accompanying the Carr Deed that the spur forms one border of
the .4984-acre parcel conveyed to the Carrs. The plat notes that the spur is 139.406 feet long and
straight. More importantly, the plat places the spur solely upon the land purchased by the
respondents.

       The Carr Deed references the right-of-way recorded in the Boarman Deed. Specifically,
the Carr Deed provides:

       This conveyance is made subject to and together with any and all covenants,
       conditions, agreements, easements, rights, rights-of-way and/or restrictions of
       record, including but not limited to those recorded in the . . . Clerk’s office in
       Deed book 363, page 265 [the Boarman Deed].

        Three years after the Carr Deed was recorded, petitioner’s mother, by deed dated June 10,
2005, conveyed to petitioner a 2.3-acre tract (Petitioner’s Deed) from the Parent Tract.
Petitioner’s Deed does not specifically address the twelve-foot right-of-way, or spur, but states

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generally that the “conveyance is made subject to and together with any other covenants,
conditions, agreements, easements, rights, rights-of-way and/or restrictions of record and in
existence.” The record and the briefs are ambiguous, but it appears this 2.3-acre tract borders the
Carrs’s land. More importantly, petitioner’s 2.3-acre tract borders the spur that forms the edge of
the Carrs’s land.

       The last deed at issue in this case is dated October 22, 2015. In it, petitioner’s mother
conveyed the remainder of the Parent Tract to petitioner. With respect to rights-of-way, the 2015
Deed provides it is “SUBJECT TO AND TOGETHER WITH any and all rights, rights-of-way,
covenants, restrictions, easements, conditions, assessments, and other matters of record and in
existence[.]”

       The dispute between the parties arose in 2017 when respondents claim petitioner began
constructing a home on his 2.3-acre tract and blocked the spur. Specifically, petitioner and/or his
construction contractor piled loads of gravel on the spur and parked equipment and vehicles in a
manner that impeded passage. In response, respondents erected a gate to prohibit petitioner’s
abuse of the spur, however, they claim they left the gate unlocked to allow ingress and egress.

        On May 23, 2017, petitioner filed this action seeking a declaratory judgment that he holds
an easement or right-of-way across the spur to gain access to his property. Petitioner also sought
injunctive relief to secure his right to use the spur, and to require respondents to remove the gate
obstructing the spur.

        In their response below, respondents sought a declaration that petitioner had no legal
right or interest in the spur. Respondents contended that a right-of-way to use the spur was
created in the Boarman Deed as an easement to benefit the Baker Parcels (land that would have
been landlocked along the river without access to the right-of-way). However, once petitioner’s
mother deeded the spur to respondents, the easement on that spur merged into the Carrs’s fee
ownership of the Baker Parcels. At that moment, the easement was extinguished and any rights
petitioner may have had to the spur ended.

        Following a hearing, the circuit court, on October 31, 2017, entered a declaratory
judgment in favor of respondents on the theory of merger. Specifically, the circuit court found
that the right-of-way in the Boarman Deed was an easement across the Parent Tract. The Baker
Parcels were the dominant estate, and the Parent Tract was the servient estate. Respondents (the
current owners of the Baker Parcels) had the right to use the easement for access, not the owners
of the Parent Tract. Thus, when respondents obtained title to petitioner’s mother’s .4894-acre
tract, and fee ownership of the servient estate beneath the spur, the easement merged into the
superior dominant estate: the Baker Parcels. The circuit court also found that the 2002 Carr Deed
failed to reserve use of the spur for the benefit of the remainder of the Parent Tract. Hence, when
petitioner’s 2.3-acre tract was carved out of the Parent Tract in 2005, petitioner’s mother had no
right to use the spur, thus, she could convey no such right to petitioner. The circuit court
concluded that respondents “have the right to do with that Disputed Road what they wish, free
from interference by [petitioner] . . . [and] that any use of the Disputed Road by [petitioner] is
not a legal use thereof.”

       Petitioner now appeals the circuit court’s October 31, 2017, declaratory judgment order.

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“A circuit court’s entry of a declaratory judgment is reviewed de novo.” Syl. Pt. 3, Cox v. Amick,
195 W. Va. 608, 466 S.E.2d 459 (1995). This Court has previously stated that when it reviews
declaratory judgments entered by a circuit court, the findings of fact are reviewed under a clearly
erroneous standard. See Syl. Pt. 4, Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114
(1996).

         Petitioner raises four assignments of error on appeal. Petitioner first argues that the
circuit court’s finding about respondents’ right-of-way was wholly irrelevant, that he and his
mother have used the spur for over thirty years, and that any “merger” applies solely to
respondents’ rights, and not to his rights. As noted above, the circuit court found that any right-
of-way across the spur to the Baker Parcels was created when the Boarmans deeded the Parent
Tract to petitioner’s parents.

        We disagree and find that the circuit court correctly applied the law of merger. The 1982
Boarman Deed created the Parent Tract, but imposed or reserved a 12-foot-wide easement on a
gravel road and on the spur. The easement was solely intended to benefit various adjacent tracts
landlocked along the Potomac River, including the Baker Parcels. As this Court has said when
discussing easements and other like rights-of-ways:

       [T]hat there must be both a dominant and servient estate; the holder of
       the easement must own the dominant estate; the benefits of the easement must be
       realized by the owner of the dominant estate; and these benefits must attach to
       possession of the dominant estate and inhere to and pass with the transfer of the
       title to the dominant estate.

Syl. Pt. 4, in part, Newman v. Michel, 224 W. Va. 735, 688 S.E.2d 610 (2009). In this case, the
beneficiaries of the Boarman Deed easement on the spur were the Baker Parcels, making them
the dominant estate. The servient estate bearing the burden of the easement was the Parent Tract.
Our law is clear, however, that once respondents (who also owned the Baker Parcels) received
fee simple title to the spur in the 2002 Carr Deed, any easement on the spur merged into their
title and was extinguished. As we said in Syllabus Point 2 of Henline v. Miller, 117 W. Va. 439,
185 S.E. 852 (1936), “[w]hen the owner of a dominant estate acquires the fee simple title to the
servient estate, an easement appurtenant to the dominant estate is extinguished.” Accord Syl. Pt.
1, Pingley v. Pingley, 82 W. Va. 228, 95 S.E. 860 (1918) (“The acquisition of the fee-simple title
to a tract of land, to which is appurtenant an easement over an adjoining tract, by the owner of
such adjoining tract, extinguishes such easement.”). The law establishes that the Carr Deed
extinguished any easement on the spur created in the Boarman Deed. Accordingly, we find no
error with regard to the circuit court’s ruling on this point.

        Petitioner next argues that the right-of-way language in the 1982 Boarman Deed did not
grant an easement for the benefit of the Baker Parcels. Petitioner contends that the 1982 owners
of those parcels were strangers to the deed from the Boarmans to petitioner’s parents.

        We disagree. The Boarman Deed expressly created a “non-exclusive right of way for
ingress and egress” leading from a state highway to the “Newton D. Baker land and other lots
along the Potomac River.” This easement was not created for the benefit of petitioner’s parents,
but rather was imposed upon the Parent Tract for “the right of others” to use the easement to

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access the state highway. Therefore, we reject petitioner’s second assignment of error.

        Petitioner’s third assignment of error regards the circuit court’s finding that petitioner’s
mother failed to specifically reserve or create a right-of-way for the use of his 2.3-acre tract.
However, petitioner appears to concede that petitioner’s mother, as owner of the Parent Tract,
could not create and easement across the Parent Tract because any such easement would have
automatically been extinguished. See Folio v. City of Clarksburg, 221 W. Va. 397, 402, 655
S.E.2d 143, 148 (2007) (owner of two adjacent tracts created easement across one tract to serve
the other; easement was automatically merged and extinguished). Petitioner points out, however,
that the 2002 Carr Deed (that conveyed the spur to respondents) specifically referenced the
easement reserved in the 1982 Boarman Deed. Petitioner argues that this reference preserved the
easement for the use of the remainder of the Parent Tract, and for petitioner’s subsequent use
when he received title to the 2.3-acre tract from his mother in 2005.

        As we found in petitioner’s first two assignments of error, the circuit court correctly
applied the doctrine of merger to the facts of record. The 1982 Boarman Deed created an
easement that benefitted the dominant Baker Parcels. The Parent Tract was the servient tract that
bore the burden of that easement created for the benefit of other parcels. In 2002, petitioner’s
mother deeded .4894 acres of the Parent Tract to the respondents in the Carr Deed, and included
the spur in that deed. Because respondents owned the Baker Parcels, the circuit court found the
easement across the spur merged automatically into the respondents’ fee simple interest in the
land. Therefore, any easement on the spur was extinguished in 2002. Thus, the 2002 Carr Deed
failed to reserve to petitioner’s mother any right to continue using the spur. Hence, when
petitioner’s mother conveyed the 2.3-acre parcel to petitioner in 2005, she had no right, title, or
interest in the spur that she could convey to petitioner. We therefore find no merit to petitioner’s
third assignment of error.

       In his fourth and final assignment of error, petitioner argues that the circuit court
improperly focused on the Boarmans’s 1982 intent rather than on the intent of petitioner’s
mother in the 2002 Carr Deed. Petitioner claims his mother intended to reserve a right-of-way in
the Carr Deed and that the circuit court ignored this intent.

        We reject this contention because we find no language in the deed to support it.
“Deeds are subject to the principles of interpretation and construction that govern contracts
generally.” Syl. Pt. 3, Faith United Methodist Church & Cemetery of Terra Alta v. Morgan, 231
W. Va. 423, 745 S.E.2d 461 (2013). A deed is nothing more than a written, contractual
agreement reflecting the parties’ intent. “A valid written instrument which expresses the intent of
the parties in plain and unambiguous language is not subject to judicial construction or
interpretation but will be applied and enforced according to such intent.” Syl. Pt. 1, Cotiga Dev.
Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962).

               In construing a deed . . . it is the duty of the court to construe it as a whole,
       taking and considering all the parts together, and giving effect to the intention of
       the parties wherever that is reasonably clear and free from doubt, unless to do so
       will violate some principle of law inconsistent therewith.

Syl. Pt. 1, in part, Maddy v. Maddy, 87 W. Va. 581, 105 S.E. 803 (1921).

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       Applying these principles, we find no error. The 2002 Carr Deed makes explicit
incorporation of the easement found in the Boarman Deed, even referring to the deed book and
page number in the county clerk’s office where it can be found. Regarding the easement, the Carr
Deed provides:

       This conveyance is made subject to and together with any and all covenants,
       conditions, agreements, easements, rights, rights-of-way and/or restrictions of
       record, including but not limited to those recorded in the . . . Clerk’s office in
       Deed book 363, page 265 [the Boarman Deed].

In the 2002 Carr Deed, the plain and unambiguous intent of petitioner’s mother was to include
the easements and rights-of-way contained in the Boarman Deed as a part of the Carr Deed. As
noted above, those easements or rights-of-way merged into the respondents’ fee estate. The
circuit court found no language in the Carr Deed creating or reserving any new rights for
petitioner’s mother to cross respondents’ .4894-acre tract. Furthermore, upon our reading of the
Carr Deed, we reject petitioner’s argument that the document should be construed as intending to
create such a new right.

     For the foregoing reasons, we affirm the circuit court’s October 31, 2017, declaratory
judgment order.


                                                                                      Affirmed.

ISSUED: April 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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