Donald Cottle v. Mary Davis

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