Klein v. McCullough

FILED
June 7, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 19-0888 – Klein v. McCullough OF WEST VIRGINIA
Armstead, Justice, concurring, joined by Justice Wooton:
I concur with the majority’s decision reversing the circuit court’s order based
on its conclusion that “[a] clause in a deed giving a stranger a right of first refusal is neither
a reservation nor an exception to the granting clause of the deed. Hence, the clause may
not be considered void under the ‘stranger to the deed’ rule expressed in Syllabus Point 3
of Erwin v. Bethlehem Steel Corp., 134 W. Va. 900, 62 S.E.2d 337 (1950).” However, as
explained below, I disagree with the majority’s suggestion that this Court may have been
impelled to abolish the “stranger to the deed” rule altogether if the parties had properly
raised this argument.
As noted in the majority opinion, West Virginia has historically observed the
“stranger to the deed” rule. See Jolynne Corp. v. Michels, 191 W. Va. 406, 414, 446 S.E.2d
494, 503 (1994); Erwin v. Bethlehem Steel Corp., 134 W. Va. 900, 62 S.E.2d 337 (1950);
Collins v. Stalnaker, 131 W. Va. 543, 48 S.E.2d 430 (1948); Beckley Nat. Exchange Bank
v. Lilly, 116 W. Va. 608, 182 S.E. 767 (1935); Freudenberger Oil Co. v. Simmons, 79 W.
Va. 46, 90 S.E. 815 (1916).
While the majority opinion states that a number of jurisdictions have
abandoned the “stranger to the deed” rule, one treatise examining this issue has concluded
that “the prevailing view still appears to be that a reservation or exception of an easement
1
may operate only in favor of the grantor.” Jon W. Bruce and James W. Ely, Jr., The Law
of Easements & Licenses in Land, § 3:9 (2021). 1
The main rationale underlying this “prevailing view” is that the “stranger to
the deed” rule promotes certainty in land titles and provides protection for bona fide
purchasers. Id. This rationale was explained by one court outside of our jurisdiction as
follows:
The long-accepted rule in this State holds that a deed
with a reservation or exception by the grantor in favor of a third
party, a so-called “stranger to the deed”, does not create a valid
interest in favor of that third party. Plaintiff invites us to
abandon this rule and adopt the minority view which would
recognize an interest reserved or excepted in favor of a stranger
to the deed, if such was the clearly discernible intent of the
grantor.
Although application of the stranger-to-the-deed rule
may, at times, frustrate a grantor’s intent, any such frustration
can readily be avoided by the direct conveyance of an easement
of record from the grantor to the third party. The overriding
considerations of the public policy favoring certainty in title to
real property, both to protect bona fide purchasers and to avoid
conflicts of ownership, which may engender needless
litigation, persuade us to decline to depart from our settled rule.
Estate of Thomson v. Wade, 509 N.E.2d 309, 310 (N.Y.1987) (citations and internal
quotation omitted).
1
See Baltic Inv. Co. v. Perkins, 475 F.2d 964, 966 (D.C. Cir. 1973); Davis v. Gowen,
360 P.2d 403, 406 (Idaho 1961); Brady Fluid Service, Inc. v. Jordan, 972 P.2d 787, 790-
791 (Kan. App. 1998); Tripp v. Huff, 606 A.2d 792, 793 (Me. 1992); United States
Invention Corp. v. Betts, 495 S.W.3d 20, 25 (Tex. App. 2016), review denied, (Sept. 2,
2016).
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I agree with this rationale and find that the policy considerations underlying
the “stranger to the deed” rule, promoting certainty in title to real property and providing
protection to bona fide purchasers, would weigh heavily in favor of rejecting any argument
that this Court should abandon our long-standing adherence to the “stranger to the deed”
rule.
Accordingly, I concur in the Court’s decision reversing the circuit court’s
ruling, but I disagree with the majority’s suggestion that this Court may have been impelled
to abolish the “stranger to a deed” rule if the parties had properly raised this argument. I
am authorized to state that Justice Wooton joins me in this concurring opinion.
3