Justice remand gravel driveway case back to Cabell judge

By Steve Korris | Nov 28, 2008

CHARLESTON – Cabell Circuit Judge David Pancake peered at a deed and thought he saw an easement to a gravel driveway off a Huntington street.

CHARLESTON – Cabell Circuit Judge David Pancake peered at a deed and thought he saw an easement to a gravel driveway off a Huntington street.

But, according to the state Supreme Court of Appeals, he just imagined it.

The Justices on Nov. 19 reversed an order granting Kenneth Jones and Joyce Jones an easement to a drive belonging to Choice Lands Limited Liability Company.

The deed to the Jones property "is devoid of any reference to an easement on the property," the Justices agreed in an unsigned opinion.

They remanded the case to Pancake so the Joneses can try to establish an unwritten easement to the drive.

The Joneses used the drive for 27 years, crossing Lot 13 on Campbell Place to their property on Lot 11.

"The Joneses may well be entitled to an easement, but the pleadings do not establish the location of the easement," the Justices wrote.

"Nor does the use of the gravel driveway over Lot 13 for 27 years create a legal basis for conclusively finding an easement across the property," they wrote.

Previous owners of Lot 13, Nondus Tassen and the late Billy Tassen, granted the Joneses permission to use the drive.

The drive runs from Bonnie Boulevard across the southern portion of several lots.

The Tassens, owners of Lot 12 and Lot 13, sold Lot 13 to Choice Lands in 2003.

In 2005, Choice Lands sued to keep the Joneses off the drive. The complaint alleged that the Tassens assured Choice Lands that the Joneses used it only by their permission.

Choice Lands attached an affidavit of the Tassens, stating they told the Joneses they could no longer use it after the sale of the property.

Choice Land attached an affidavit of its manager, stating he accompanied Billy Tassen to the Jones home prior to the sale to tell the Joneses he would terminate permission.

The Joneses moved for judgment on the pleadings. Pancake held a hearing in 2006 and granted the motion.

Choice Lands challenged the order, and Pancake rejected the challenge last year.

"The Tassens had always allowed the Joneses to cross Lot 13, at least prior to Mr. Tassen's termination of any such permissive use, thus establishing it is a part of the easement due to its 27 years of continuous use," Pancake wrote.

On appeal, Choice Lands argued that Pancake relied on matters outside the pleadings.

The Jones argued that Choice Lands should have researched the deed to Lot 13.

"Such argument ignores the root issue that there is no legal basis in the pleadings for finding that Lot 13 is encumbered with an easement," the Justices wrote.

Chief Justice Spike Maynard, Justices Larry Starcher and Robin Davis, and temporary Justices Thomas McHugh and J. D. Beane agreed on the reversal.

McHugh has substituted throughout the current term for ailing Justice Joseph Albright. Beane substituted for Justice Brent Benjamin, who disqualified himself.

Richard Bolen, of Huddleston Bolen in Huntington, represented Choice Lands. Lee Booten of Huntington represented the Joneses.

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