        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                             September 2015 Term
                                                                FILED

                                                          September 24, 2015

                                                             released at 3:00 p.m.
                                  No. 14-0898                RORY L. PERRY II, CLERK
                                                           SUPREME COURT OF APPEALS
                                                               OF WEST VIRGINIA




                             DONALD COTTLE,

                          Petitioner Below, Petitioner


                                       v.


                              MARY DAVIS,

                        Respondent Below, Respondent




                Appeal from the Circuit Court of Webster County

                        The Honorable Jack Alsop, Judge

                            Civil Action No. 13-P-20


                AFFIRMED, IN PART, REVERSED, IN PART,

                           AND REMANDED



                        Submitted: September 16, 2015

                          Filed: September 24, 2015



Donald Cottle                                Dan L. Hardway, Esq.
Ceredo, West Virginia                        Dan Hardway Law Office PLLC
Petitioner, pro se                           Cowen, West Virginia
                                             Counsel for Respondent


JUSTICE KETCHUM delivered the Opinion of the Court.
                            SYLLABUS BY THE COURT




      “Valid restrictive covenants applying to a residential neighborhood cannot be nullified

by changes in the neighborhood’s character unless the changes are so radical as effectively

to destroy the essential objects and purposes of the neighborhood’s original plan of

development.” Syl. pt. 1, Morris v. Nease, 160 W.Va. 774, 238 S.E.2d 844 (1977).
Justice Ketchum:


       The petitioner, Donald Cottle (“Cottle”), appeals from the order of the Circuit Court

of Webster County denying him relief under Rule 60(b) of the West Virginia Rules of Civil

Procedure from the circuit court’s July 9, 2014, order entered in favor of the respondent,

Mary Davis (“Davis”). Cottle is the owner of a parcel within a larger tract of land owned by

Davis in Glade District, Webster County. The focus of the controversy concerns a restrictive

covenant in Cottle’s deed which states that the grantee [Cottle] “shall install no septic or

sewage system of any kind, no septic tank or leach bed on the real estate herein conveyed.”

The circuit court concluded, following a bench trial, that the restrictive covenant is

enforceable and that it is perpetual, thereby running with the land.



       Upon review, this Court holds that the circuit court abused its discretion in concluding

that the restrictive covenant in Cottle’s deed is enforceable. Therefore, the ruling of the

circuit court upholding the validity of the restrictive covenant in Cottle’s deed is reversed,

and this action is remanded with directions that the circuit court conduct proceedings to

determine whether Cottle’s waste disposal system is compliant with applicable State and

county health laws.



       The rulings of the circuit court on all other issues, including the width and use of a

right-of-way across Davis’s tract of land, are affirmed.

                                              1

                                   I. Factual Background

       The parties’ respective interests in the Glade District property were acquired as

follows. In 1970, Terry Eagle Coal Company purchased a fifty acre tract of land in Glade

District, and, in 1981, conveyed the tract to Charles Grose. Thereafter, Grose sold parcels

from the fifty acre tract to various individuals, and several dwellings have since been built

on the original property.



       Specifically, in October 1982, Grose conveyed 2.29 acres of the tract to Thomas and

Lillian Bailes. The deed granted the Baileses a right of way “to be used in common with

others over the residue of the land of which the subject 2.29 acre tract is a part.” In addition,

the deed stated:


               The grantees only shall have the right to use water from a spring as
       located on the residue of the tract of which the subject tract is a part and shall
       further have the right to lay and maintain water lines from said spring to the
       property herein conveyed. The grantees, by the acceptance of this deed, agree
       that this right goes only to the grantees and not to their successors and assigns.


       In July 1983, Grose sold another parcel from the fifty acre tract to Robert Kamm, Jr.

Thereafter, by deeds made in May 1985 and August 1986, Grose conveyed parcels from the

tract to Fred and Carol Mays. The latter deed conveyed 1.47 acres to the Mayses and “the

right to use in common with others the 30-foot wide right-of-way which runs through the real

estate of the grantors as it presently exists for purposes of ingress and egress.” Similar to the


                                               2

deed to the Baileses, the August 1986 deed to the Mayses also granted the right to use the

“water spring on the residue of the real estate of the grantors.” The evidence during the

bench trial indicated that the Mayses are constructing a home on their property.



       On December 21, 1989, Grose conveyed 1.001 acres of the tract to Cottle, “subject

to all exceptions and reservations contained in prior deeds in the chain of title to this tract or

parcel of land.” As with the other grantees, Cottle was granted the right to use the existing

right-of-way for ingress and egress. The deed to Cottle, however, contained a restrictive

covenant. The covenant states that Cottle “shall install no septic or sewage system of any

kind, no septic tank or leach bed on the real estate herein conveyed.” The other parcels

conveyed out of the original fifty acre tract do not contain this restrictive covenant.



       Finally, on April 12, 1990, Grose conveyed the remaining land in the fifty acre tract,

i.e., the larger tract, to Frank Davis (since deceased) and Mary Davis. The conveyance was

made subject to “all exceptions and reservations as may be contained in prior deeds of

record.” The conveyance did not contain a restrictive covenant prohibiting septic or sewage

systems. Ms. Davis has a permanent home on her property. The right-of-way, currently

known as Mountain Dog Road, extends across Davis’s property and, in a westerly direction,

to a road in the Monongahela National Forest.




                                                3

       The appendix record indicates that Cottle is not a permanent resident on his 1.001 acre

parcel. Moreover, the nature of the structure, or dwelling, Cottle placed there following his

purchase is unclear. Although he asserts that he has a home under construction on the parcel,

the evidence at the bench trial described the structure as a hunting camp, or cabin, for the use

of Cottle and his guests. It is undisputed, however, that Cottle was granted a Well Permit

from the West Virginia Department of Health and Human Resources in April 2007.



       In May 2013, relations between Cottle and Davis deteriorated, primarily due to

Cottle’s use of the right-of-way. The controversy involved a number of matters: the locking

of a gate across the right-of-way; the width of the right-of-way; and the presence along the

right-of-way’s edge of various trees and a tool trailer.



                                II. Procedural Background

       On September 16, 2013, Cottle filed a pro se complaint in the Circuit Court of

Webster County alleging that Davis was interfering with his use of the right-of-way. Davis

filed an answer and counterclaim. The counterclaim alleged that Cottle had installed a septic

or sewage system on his property “in violation of the covenants in his deed and county and

state sanitary laws and regulations.” Davis asked the circuit court to enjoin Cottle from

maintaining any septic or sewer system on his property.




                                               4

       The circuit court conducted a bench trial on April 29, 2014. Cottle was pro se, and

Davis was represented by counsel. The evidence presented focused on the right-of-way

controversy. Very little information was elicited concerning the septic system issue.

Although Cottle described having an outhouse or pit privy on his parcel, he denied having

a leach bed or any kind of septic disposal system. Cottle maintained that he had a right to

install a septic system, subject to compliance with State law. During the trial, he requested

that he be permitted to telephone George Clutter, a Registered Sanitarian of the Webster

County Health Department, who Cottle had previously contacted concerning the

requirements for the installation of a septic system on his parcel. Cottle’s request to make

the telephone call was denied.



       On July 9, 2014, the circuit court entered a final order. The order was adverse to

Cottle with regard to the gate across the right-of-way and the tool trailer (which belongs to

Davis), neither of which was found to interfere with Cottle’s right of ingress or egress. With

regard to the gate, the evidence revealed that the gate was there when Cottle purchased his

1.001 acre parcel and that Cottle has a key to the lock. The order, however, was favorable

to Cottle in determining that the width of the right-of-way is thirty feet, rather than twelve

feet, and that the trees in question should be cleared away.




                                              5

       The circuit court ruled against Cottle on the septic system issue, holding that the

restrictive covenant in Cottle’s 1989 deed is clear and that any septic disposal system

currently on Cottle’s property must be removed. The final order stated:


              The Court is of the opinion that the evidence of record and applicable
       law supports a finding that the Petitioner’s installation of a septic system
       violates the express covenant within his Deed prohibiting the same. * * *

              The Court finds the language in the Petitioner’s Deed to be quite clear.
       As a basis of the bargain for the Petitioner’s purchase, Charles R. Grose
       requested and the Petitioner expressly agreed not to build a septic system of
       any kind on the real estate inevitably acquired. Further, the language of the
       Petitioner’s Deed in this regard does not impose a limitation on the restrictive
       covenant. More specifically, there is no wording or phrasing within the Deed
       that would indicate the restrictive covenant could be disregarded if certain
       events took place or failed to occur, such as, Mr. Grose failing to build the
       camp, Mr. Grose transferring the remaining tract of land, or if the natural
       spring ceased production or the water became undrinkable.


       The final order concluded by stating that the restrictive covenant in Cottle’s deed is

perpetual, rather than personal, and, therefore, runs with the land.



       Thereafter, Cottle filed a Motion to Withhold Judgment and a Motion to Follow

Webster County Health Department Recommendations. Seeking to invalidate the restrictive

covenant because of his need to maintain a septic disposal system, Cottle alleged that on June

25, 2014, Registered Sanitarian George Clutter inspected Cottle’s property and determined

that the property required an approved septic disposal system. Cottle asserted in the motions



                                              6

that the absence of an approved system constituted a health risk that could compromise

ground water safety in the area.



       The circuit court conducted a non-evidentiary hearing on the motions and treated them

as a motion for relief under Rule 60(b) of the West Virginia Rules of Civil Procedure. The

circuit court entered an order denying relief on September 22, 2014.1 Cottle’s appeal to this

Court followed.



                                   III. Standards of Review

       The standard of review concerning a bench trial conducted by a circuit court is set

forth in syllabus point 1 of Public Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W.Va.

329, 480 S.E.2d 538 (1996), as follows:


              In reviewing challenges to the findings and conclusions of the circuit
       court made after a bench trial, a two-pronged deferential standard of review is
       applied. The final order and the ultimate disposition are reviewed under an
       abuse of discretion standard, and the circuit court’s underlying factual findings
       are reviewed under a clearly erroneous standard. Questions of law are subject
       to a de novo review.




       1
         The September 22, 2014, order did not discuss the evidence of record or cite any
State regulations concerning septic systems. Rather, the order stated that Cottle failed to
allege any grounds for relief under Rule 60(b), such as mistake, inadvertence, excusable
neglect, unavoidable cause or newly discovered evidence.

                                              7

Accord syl. pt. 1, Isaacs v. Bonner, 225 W.Va. 460, 694 S.E.2d 302 (2010). See Rules 39(b)

and 52 of the West Virginia Rules of Civil Procedure concerning trials without a jury.



         Moreover, syllabus point 5 of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974),

holds:       “A motion to vacate a judgment made pursuant to Rule 60(b), W.Va. R.C.P., is

addressed to the sound discretion of the court and the court’s ruling on such motion will not

be disturbed on appeal unless there is a showing of an abuse of such discretion.” Syl. pt. 1,

Builders’ Service and Supply Company v. Dempsey, 224 W.Va. 80, 680 S.E.2d 95 (2009);

syl. pt. 1, Fernandez v. Fernandez, 218 W.Va. 340, 624 S.E.2d 777 (2005).



                                        IV. Discussion

         Cottle’s appeal focuses almost entirely on the restrictive covenant in his deed which

states that he “shall install no septic or sewage system of any kind, no septic tank or leach

bed on the real estate herein conveyed.” Cottle’s petition for appeal makes no mention of

Davis’s tool trailer, and he addresses in a cursory manner the circuit court’s ruling

concerning the locking of the gate across the right-of-way. We, therefore, affirm the final

order, and the denial of Rule 60(b) relief, regarding the tool trailer and the gate.2

         2
         See Farmer v. Knight, 207 W.Va. 716, 722, 536 S.E.2d 140, 146 (2000) (This
Court will decline to address an issue only casually mentioned in a brief); State v.
LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) (Casual mention of an issue in
a brief is insufficient to preserve the issue on appeal).

                                                                                  (continued...)

                                               8

       The circuit court determined that the restrictive covenant is enforceable solely because

the language in Cottle’s 1989 deed is clear and formed a basis for his purchase. See syl. pt.

1 McDonough, Co. v. E. I. DuPont DeNemours & Co., Inc., 167 W.Va. 611, 280 S.E.2d 246

(1981) (“Parties are bound by general and ordinary meanings of words used in deeds.).

Accord syl. pt. 8, Faith United Methodist Church and Cemetery of Terra Alta v. Morgan, 231

W.Va. 423, 745 S.E.2d 461 (2013). The circuit court, however, did not make findings with

regard to the type of cabin, or dwelling, Cottle currently has or intends to build on his 1.001

acre parcel; nor did the circuit court fully consider the extent the original fifty acre tract has

changed over the years.




       2
           (...continued)
        In any event, the evidence revealed that Davis locked the gate across the right-of­
way from time to time for security purposes. Cottle argued that the locking of the gate
constituted an unreasonable burden on his right of ingress and egress. Nevertheless, in
the final order entered on July 9, 2014, the circuit court held: “[Cottle] admitted that he
has a key to the lock and, therefore, the Court cannot reasonably conclude that when
locked, the gate imposes an unreasonable burden upon or materially interferes with
[Cottle’s] access to the right of way or his property.” Moreover, the brief filed by Davis
in this Court notes: “Keys were available from [Davis] and it appears that all who wanted
one had one, including the local emergency services.” Accordingly, Cottle’s assignment
of error concerning the gate is without merit. Cf. Weikle v. Bolling, No. 12-0549 (W.Va.
Supreme Court, June 24, 2013) (memorandum decision) (gate to be left open under
unique facts of the case).

       Other assignments of error not adequately addressed and without merit are: (1)
whether Cottle was entitled to certain prescriptive easements across Davis’s property in
addition to the right-of-way, (2) whether he was entitled to default judgment and (3)
whether he was denied discovery.

                                                9

       In Wallace v. St. Clair, 147 W.Va. 377, 127 S.E.2d 742 (1962), this Court affirmed

the enforcement of a restrictive covenant which had the effect of prohibiting eight students

from rooming in a dwelling in a neighborhood developed exclusively for residential

purposes. The neighborhood was in the vicinity of Marshall University in Huntington, West

Virginia, and this Court observed that there had not been a change in the character of the

neighborhood sufficient to constitute an abandonment of the restriction. 147 W.Va. at 401,

127 S.E.2d at 758. Nevertheless, the opinion in Wallace acknowledged that a restrictive

covenant may not be sustainable where it is contrary to the public good or where it

unreasonably and materially impairs the beneficial enjoyment of the property. 147 W.Va at

387-88, 127 S.E.2d at 750.



       Wallace was later cited in Allemong v. Frendzel, 178 W.Va. 601, 363 S.E.2d 487

(1987), wherein this Court recognized “the commonly accepted legal proposition that

changes in a neighborhood’s character can nullify restrictive covenants affecting property

within the neighborhood.” 178 W.Va. at 606, 363 S.E.2d at 492. However, in Allemong, this

Court upheld a restrictive covenant prohibiting the sale of alcoholic beverages on the

Frendzels’ parcel. Affirming an award of injunctive relief in that regard, this Court rejected

the Frendzels’ assertion that commercial properties in the general vicinity of the restricted

parcel had significantly changed the residential character of the immediate area.




                                             10

       Allemong, thus, stands for the general principle that a restrictive covenant intended

to preserve the character of a neighborhood may be enforced by a trial court, “provided that

changes in the neighborhood’s character are not so radical as to destroy the essential objects

and purposes of the neighborhood’s original plan of development.” 178 W.Va. at 606-07,

363 S.E.2d at 492-93. In setting forth that principle, this Court, in Allemong, restated

syllabus point 1 of Morris v. Nease, 160 W.Va. 774, 238 S.E.2d 844 (1977), which holds:

“Valid restrictive covenants applying to a residential neighborhood cannot be nullified by

changes in the neighborhood’s character unless the changes are so radical as effectively to

destroy the essential objects and purposes of the neighborhood’s original plan of

development.” See Tx Far West, Ltd. v. Texas Investments Management, Inc., 127 S.W.3d

295, 306-07 (Tex. Ct. App. 2004) (“A court may refuse to enforce a restrictive covenant if

there has been such a change of conditions that it is no longer possible to secure in a

substantial degree the benefits sought to be realized through the covenant.”); Burnett v.

Heckelman, 456 N.E.2d 1094, 1097 (Ind. Ct. App. 1983) (Restrictive covenants are not

favored, and whether there has been a radical or extreme change in the use of the property

and its surrounding area depends on the equities of the situation.); Owens v. Camfield, 614

S.W.2d 698 (Ark. Ct. App. 1981) (Various grounds to cancel a restrictive covenant include

changes in the conditions surrounding the property, as to destroy the property’s value for the

purpose originally intended by the restriction.). See generally John W. Fisher, II, The

Evolution of Restrictive Covenants in West Virginia, 100 W.Va. L. Rev. 55 (1997).


                                             11

       Here, the evidence demonstrates a radical change in the character of the fifty acre tract

since its purchase by Grose, in 1981, from Terry Eagle Coal Company. Under Grose’s

ownership, the tract was a remote farm upon which Grose intended to construct some type

of camp. The camp was never constructed, and, in 1990, the bulk of the tract was conveyed

to Davis who now has a permanent home on the property. Before 1990, Grose made a

number of mesne conveyances to others, including the 1.001 acre parcel to Cottle in 1989.

Several dwellings have been built on these parcels. Although the appendix record does not

show that the out-conveyances from the original tract were made pursuant to a formal

subdivision plan, a right-of-way was established for the benefit of the owners of the various

parcels, and electric service is now available. Both the Baileses and the Mayses have the

right to use water from the spring. The Baileses have the right to lay and maintain water

lines from the spring and the Mayses are building a home on their parcel. Cottle has obtained

electric service and a Well Permit.



       The appendix record further shows that the restrictive covenant, i.e., that Cottle “shall

install no septic or sewage system of any kind, no septic tank or leach bed on the real estate

herein conveyed,” appears solely in Cottle’s deed and not in the deeds of the other property

owners. The restriction is not reciprocal. It was ostensibly placed in Cottle’s deed for the

benefit of the surrounding parcels, yet no similar restrictive covenant appears in the deeds

of others for the benefit of Cottle. The only explanation suggested by the parties is the


                                              12

proximity of Cottle’s parcel to the spring. Cottle asserts, however, that his parcel is not

within any prohibited distance from the spring and that the spring has been abandoned and

its water is not usable.



       Cottle’s use of his 1.001 acre parcel, on which he has an outhouse or pit privy,

includes bringing guests to his property from time to time. He asserts that the restrictive

covenant is unenforceable because it interferes with the development of his parcel, its use,

and its alienability. Cottle has consistently expressed a willingness to comply with applicable

State and county health laws.



       In his Motion to Withhold Judgment and a Motion to Follow Webster County Health

Department Recommendations, Cottle alleged that on June 25, 2014, Registered Sanitarian

George Clutter inspected Cottle’s property and determined that the property required an

approved septic disposal system. Cottle asserted in the motions that the absence of an

approved system constituted a health risk that could compromise ground water safety in the

area. Specifically, following the inspection, Clutter stated in a letter to Cottle that Cottle did

not have a legally approved septic system. The letter cited Title 64, Series 9, of the West




                                               13

Virginia Code of State Rules3 and made reference to Cottle’s Well Permit. Ordering Cottle

to remedy the situation, the letter states in part:



               On June 25, 2014 I visited the above described property and found that
       no approved septic disposal system existed on sight. This lack of septic
       disposal is causing a health risk that could compromise ground water safety
       in that area. West Virginia Code 64 CSR 9 requires that any dwelling with
       running water must have a legal means of disposing of septic waste including
       so called grey water. This property is serviced by a legal well permitted on
       April 17, 2007. You are hereby ordered by the Webster County Health
       Department to find a legal and permanent remedy to correct this problem.


       (Emphasis added)



       Given the changes in the fifty acre tract outlined above, this Court is of the opinion

that the restrictive covenant in Cottle’s 1989 deed is unenforceable. However, that does not

mean that the septic system Cottle has in place, or proposes to install, is in compliance with

State and county health laws and regulations. That is a matter to be resolved by the circuit

court on remand.




       3
        Cottle purchased his parcel in 1989, and the rules then in effect were located in
W.Va. C.S.R. §§ 64-9-1 to 64-9-16 (1983), entitled “Sewage System Rules” of the West
Virginia Department of Health. The amended version of the rules is located in W.Va.
C.S.R. §§ 64-9-1 to 64-9-14 (1998), entitled “Sewer Systems, Sewage Treatment
Systems, and Sewage Tank Cleaners” of the West Virginia Division of Health. Both
versions include “cabins” within the definition of “dwellings,” and both versions refer to
“privy vaults” within the definition of “sewage tank.”

                                               14

                                       V. Conclusion

       The July 9, 2014, order of the Circuit Court of Webster County, and the denial of

relief under Rule 60(b), upholding the validity of the restrictive covenant constitute an abuse

of discretion and are reversed, and the restrictive covenant is stricken from Cottle’s 1989

deed. This action is remanded to the circuit court for proceedings to determine whether

Cottle’s current, or proposed, waste disposal system is compliant with applicable State and

county health laws and regulations. The rulings of the circuit court on all other issues are

affirmed.4

       4
         A remaining assignment of error before this Court is Cottle’s claim of a right to
access a one hundred year old cemetery known as the Bennett-Williamson Cemetery
located on Davis’s property. Cottle stated that he has been caring for the cemetery for a
number of years and wants to continue to do so. Davis revoked Cottle’s permission to
visit the cemetery and contends that he is, therefore, prohibited from visiting the site
pursuant to W.Va. Code, 37-13A-1(a) [2011], et seq., which provides that only an
“authorized person” may visit a cemetery or grave site located on privately owned land,
where no public access is available. The phrase “authorized person” is defined in W.Va.
Code, 37-13A-2(1) [2011], to include (1) a family member, close friend, or descendant of
a deceased person, (2) a cemetery plot owner, (3) a person who has written permission to
enter the site from a family member or descendant of a deceased person or (4) a person
engaged in genealogy research.

       During the bench trial, the circuit court granted Davis’s motion for judgment as a
matter of law with regard to Cottle’s claim of access to the cemetery. The circuit court
upheld that ruling in the July 9, 2014, final order.

        We find that the circuit court ruled correctly. Concluding that Cottle is not an
“authorized person” under the statute entitled to access the cemetery, the circuit court
stated:

              Through witness testimony, the cemetery is described as a small
       area, appearing to have smooth rocks or stones marking two unnamed
                                                                                 (continued...)

                                              15

                            Affirmed, in part, Reversed, in part, and Remanded.




4
    (...continued)

graves. Testimony indicated that folklore suggests the stones are graves,

however, testimony further indicated that it is uncertain who, if anyone, is

buried at the alleged grave site. Additionally, the Petitioner admitted that

he could not be related to any individual buried on the site nor did he

present evidence that he was conducting genealogical research. * * *


        First, there is nothing upon the record before this Court that would
indicate who, if anyone, is buried at the grave site and therefore, absent
such information, there is no plausible way for [Cottle] to claim he is a
family member, close friend, or a descendant of a deceased person buried
therein. * * * Second, it is undisputed that [Cottle] is not a plot owner
at the cemetery.

                                      16
