[2] The portions of the charge quoted in [ the statement were nothing more than a statement of the issues as they appeared in the complaint and answer. [3] There was no reversible error in allowing the plaintiff and his wife to testify to a conversation with Buckheister, when they were waiting for the Clifton car. The plaintiff testified that Buckheister had charge of defendant's cars, and this fact was admitted by defendant's counsel, and after that fact appeared there was no further objection to the testimony. Besides, the statements of Buckheister were not material to the issue made by the pleading. Affirmed. GARY, C. J., and HYDRICK, WATTS, and FRASER, JJ., concur. (72 W. Va. 68) CROTTY V. NEW RIVER & POCAHONTAS CONSOL. COAL CO. (Supreme Court of Appeals of West Virginia. Feb. 18, 1913. Rehearing Denied May 29, 1913.) (Syllabus by the Court.) 1. EASEMENTS (§ 18*)—WAYS OF NECESSITY— IMPLICATION. A way of necessity over the lands of a grantor is implied in a deed, if, by reason of a physical obstruction to access to the granted land, the grantee cannot construct a road from a considerable portion thereof over the residue without an expenditure wholly disproportionate to the value of the land. [Ed. Note. For other cases, see Easements, Cent. Dig. 50-55; Dec. Dig. § 18.*] 2. EASEMENTS (§ 24*)-WAYS OF NECESSITY RIGHTS OF GRANTEES. Such a way is appurtenant to the granted land, and passes to subsequent grantees thereof, and a subsequent grantee of land not used at the time of the severance of the larger tract by the common owner may, when the use of such way becomes necessary to the enjoyment of the land, claim it under the remote deed of sever ance. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 64-69; Dec. Dig. § 24.*] Robinson and Lynch, JJ., dissenting. Appeal from Circuit Court, Fayette County. Bill by G. E. Crotty against the New River & Pocahontas Consolidated Coal Company. Decree for defendant, and plaintiff appeals. Reversed, and injunction reinstated and perpetuated. Hubard & Lee and C. R. Summerfield, all of Fayetteville, for appellant. Dillon & Nuckolls, of Fayetteville, for appellee. POFFENBARGER, P. This bill filed to vindicate the plaintiff's alleged right to a way over the land of the defendant, claimed as a public one, a private one by prescription and a private one by necessity, must be sustained, if at all, upon the last theory, since the evidence wholly fails to sustain either of the other two. The appeal is from a decree dismissing the bill. The way in question is a short one, only 322 feet in length, leading from the plaintiff's 4.5-acre lot through the land of the defendant to a public road. This lot and the road are on two separate tracts of land, which at one time constituted a portion of a still larger tract, owned prior to the year 1831 by Henry Banks under a patent issued by the state of Virginia December 6, 1794. This large tract, containing 12,300 acres, was divided into lots, and sold in 1831 and 1832, John Bowyer becoming the purchaser of lot No. 15 and Samuel Blake of lot No. 21, containing, respectively, 150 acres and 497 acres. The plaintiff's 4.5-acre lot is a portion of the former. At the time of this division a public road ran through lot No. 15, but there was none through lot No. 21. The portion of lot No. 15 out of which plaintiff's small lot was taken was cut off from the public thoroughfare by a cliff so high and steep as to render it impossible to go over it without very great expense. This portion containing about 30 acres lies about 400 or 500 feet lower than the table land on which the residue of the tract, through which the road ran, is situated. Above and below the cliff the mountain side is very steep, and the cliff itself is nearly perpendicular and 100 feet high. The plaintiff's title goes back regularly to the deed to John Bowyer and that of the defendant to the deed to Samuel Blake. The portion of lot No. 15 lying below the cliffs, excluding the plaintiff's 4.5 acres, is owned in small lots by the heirs of one Wood, and is unimproved. The plaintiff obtained his lot in 1905, and erected a butcher shop thereon. Later he put up a substantial building for residence and mercantile purposes. Until that time he had been permitted to use the way claimed by him out to the county road constructed on the adjacent land, lot No. 21, long after the division of the Banks land. About the time of the completion of the building, the defendants obstructed the road, and denied him the right of use thereof. When Effie and Frank Roach, the heirs of Woods, conveyed this 4.5-acre lot to the plaintiff, more than 60 years had elapsed from the date of the division of the Banks survey and conveyances of its several parts. They conveyed, not a small lot out of a larger one, but all that had been assigned to them in the partition of the Woods estate. Hence it cannot be said that at the date of this grant there was a grant by implication, on the ground of necessity, of a right of way through their remaining lands. They had none. If, however, there was a way of necessity included in the partition among the Woods heirs which became appurtenant to this 4.5 acre lot, the deed to that lot to the plaintiff may have carried it. But, as the partitioned land did not extend to the public road in question, that way would avail plaintiff nothing. To sustain his claim, it becomes necessary to go back to the division of the | rection for a number of years thereafter, Banks land in the years 1831 and 1832. are asserted and relied upon as inconsistent [2] Whether an owner of land can go back with a presumption of intent to grant the beyond the deed of the immediate grantee to way in question. These circumstances are the common source of title, however remote not broad enough in their scope to preclude it may be, and claim a way by necessity, as it. The parties may well be presumed to appurtenant to the land, is a vital and far- have contemplated such conditions as the reaching question in the case. The authori- future was likely to bring forth. This printies uniformly hold there must have been at ciple is asserted in Uhl v. Railroad Co., 47 some time privity of title. There cannot be W. Va. 59, 34 S. E. 934, in which the followa way of necessity over the land of a stranger ing is quoted from Jones on Easements, § to the title. Linkenhoker v. Graybill, 80 Va. 323: "The prevailing view in this country 835; Kimball v. Railroad Co., 27 N. H. 448, is that a way of necessity is not limited to 59 Am. Dec. 387; Pomfret v. Ricroft, 1 such use of the land as was actually made Saund. 323; 23 A. & E. Enc. L. 17. Mr. and contemplated at the time of the conveySergeant Williams' note 6 to Pomfret v. ance, but is a way for any use to which the Ricroft asserts the right to go back to unity owner may lawfully put the granted land at of possession and title, however remote. It any time." In that case Judge Brannon says: "If the origin of a way of necessity said: "Though such a use of that crossing cannot any longer be traced, but the way has may not have been dreamed of at the date been used without interruption, it must then of the deed, yet the crossing was for use for be claimed as a way either by grant or pre- any purpose which might thereafter be called scription, according to the circumstances of for in the conveyance from the land of its Where the fact is that there ex-products-whether a wagon carrying wheat isted at one period an unity of possession, it or coal, or a pipe or other appropriate means must then be claimed as a way by grant." of carrying gas-so it did not practically The principle and conclusion intimated in impair the use of the right of the railroad this note have been embodied in actual de- to use its tracks." The principle thus apcisions. In Logan, v. Stogsdale, 123 Ind. 372, plied necessarily includes, or accords with, 24 N. E. 135, 8 L. R. A. 58, the court, after what has been said in the preceding para the case. graph. very thorough consideration of the authoriA way of necessity springs out of the deed at the date of the grant, and beties, upheld the claim to a right of way asserted on the ground of necessity by going it includes such a way as is necessary for comes appurtenant to the granted estate. If back to a remote common grantor, citing Taylor v. Warnaky, 55 Cal. 350. The follow- any purpose to which the land may thereing is taken from the opinion: "The decision and attaches to the subsequent grant, when after be adapted and becomes appurtenant in the case referred to is sustained by the the occasion for a broader use of the addoctrine, maintained by the ancient and modjacent land or a heavier burden thereon ern authorities, that the original grantor arises, the right to it is found in the remote grants, as appurtenant to the parcel expressconveyance. In the case just referred to, ly conveyed, a way which will enable his there was an express grant of a right of grantee to obtain access to the corporeal way, but not such a way as afterwards beproperty expressly conveyed to him. Both came necessary to the full enjoyment of the the corporeal property and the incorporeal land, and the court held such larger grant right pass from the grantor at the same time had been made by implication. If a remote -one as the inseparable incident of the oth-grant by implication can be invoked to ener-and a subsequent grantee must necessarily take the land conveyed to him subject to the burden created by the implied grant." The character and weight of the considerations upon which this implication rests argue strongly the correctness of the theory of the decisions here referred to. Land without means of access is practically valueless. No reasonable use can be made of it, and it has no market value. The presumption of intent on the part of the parties to the conveyance to provide a means of access is so strong, for this reason, that the contrary thereof can hardly be supposed. This brings the implied grant within a well-settled principle of construction and interpretation of contracts. That the land was in a state of nature at the date of the division of the Banks land, and there was no road on lot No. 21, large a way expressly granted, no reason is perceived why recourse cannot be had to one for a way of necessity by implication for property, which at the time, owing to its position and the surrounding circumstances, was unoccupied and in connection with which no road was actually used. According to the legal theory, a way of necessity is granted for any and all purposes for which the land is adapted, and, if the grantee has at the time of the grant occasion for an outlet and demands it, he can enforce the right. It is therefore a right appurtenant to the land, and, having become fixed, it goes to subsequent grantees. [1] As to whether physical obstruction to access to land, such as the insurmountable cliff standing between the plaintiff's lot and the public road on the table land within the boundary of lot No. 15, will sustain an im possibility. If, for example, the property conveyed were worth but one thousand dollars, it would follow from this construction that the purchaser would not have a right of way over the intervening piece as appurtenant to the land, provided he could make another way at an expense of one hundred thousand dollars." See Pettingill v. Porter et al., 8 Allen (Mass.) 1, 85 Am. Dec. 671; Smith v. Griffin, 14 Colo. 429, 23 Pac. 905; Oliver v. Pitman, 98 Mass. 46; Schmidt v. Quinn, 136 Mass. 575; Paine v. Chandler, 134 N. Y. 385, 32 N. E. 18, 19 L. R. A. 99; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671; O'Rorke v. Smith, 11 R. I. 259, 23 Am. Rep. 440. Applying the foregoing principles and authorities, we think the plaintiff is entitled to a way of necessity. The practicability of a way by a different course is relied upon, but, as it too would pass over a portion of lot No. 21 and be very inconvenient as compared with the road plaintiff now uses, the fact constitutes no defense. The decree complained of will be reversed, and the injunction reinstated and perpetuated. ROBINSON and LYNCH, JJ., dissenting. the authorities are in conflict, some saying | be implied if another way could be made by the grantee cannot have a right of way out any amount of labor and expense, or by any over the adjacent land of the grantor, if, by any means, no matter at what cost, he can get out over his own land, while others say necessity within the meaning of the terms as it is used in the law of contracts suffices. The latter class of cases seems to accord with reason and the considerations upon which the rule rests. If the cost of the construction of a right of way or road out over a man's own land would exceed the value of the land itself or be greatly disproportionate thereto, it may well be supposed such means of access was not within the contemplation of the parties, and that a way out over the land of the grantor was contemplated. That a road over the adjacent land of the grantor is more convenient and could be constructed at a lighter cost than one over the grantee's own land will not sustain a grant of such right on the theory of necessity, of course, but, if it is practically impossible to get out over the grantor's own land, there is as clear a case of necessity, within the reasonable meaning of the term, as if it were surrounded by adjacent land of strangers; for, in the latter case, a right of way can generally be secured if a sufficient amount of money is offered for it, just as a road can be made up such a cliff as is described here by the expenditure of an amount of money wholly disproportionate to the value of the land, and so great the grantee cannot be supposed ever to have intended to burden himself with it. Logically it is the necessity that gives rise to a grant by implication, not the character, or form or occasion thereof. Very few, if any, of the cases in which it has been held that a way of necessity does not exist when 1. JUDICIAL SALES (8 54*)-RIGHTS OF PURa man can get to his own property through his own land and that steepness or narrowness of the way does not prevent it, presented such as the situation we have here. In practically all of them the grantees had sought ways out over the grantors' lands on the ground of convenience and economy only. Such was the case of Shaver v. Edgell, 48 W. Va. 502, 37 S. E. 664. Of the evidence in that case Judge Brannon said: "It shows that his land runs a long distance along the public highway, and there is no obstruction of access to it, save some tolerably steep ground, and that a very usable road can be made to the highway at small expense, ranging from $5 up to $60, according to different witnesses, the most reliable putting the cost at $15 or $20." In cases like this the courts have said there need not be an absolute physical obstruction. The following text from Jones on Easements, § 316, is well sustained by authority: "The word is to have a reasonable and liberal interpretation. The way must be reasonably necessary. If it were limited to an absolute physical necessity, a way could not (72 W. Va. 54) CHAPMAN et al. v. BRANCH et al. (Supreme Court of Appeals of West Virginia. Feb. 28, 1913. Rehearing Denied May 29, 1913.) (Syllabus by the Court.) CHASERS REVERSAL OR VACATION OF DE- The title of an immediate purchaser, or of a remote purchaser, not parties, cannot be disturbed or affected by reversal on appeal, or on setting aside of a decree of sale, for mere error therein not going to the jurisdiction of the court. [Ed. Note.-For other cases, see Judicial Sales, Cent. Dig. §§ 108, 109; Dec. Dig. § 54.*] 2. INFANTS (§ 114*)-PURCHASES AT JUDICIAL SALES-REVERSAL OR VACATION OF DECREE This rule is applicable to infants as well as adults, proceeding by prochein ami before majority, as in proper person after majority, either under section 7, chapter 132, Code 1906, or by motion, original bill or bill of review to set aside such decree. Cent. Dig. 88 323, 325; Dec. Dig. § 114.*] [Ed. Note. For other cases, see Infants. Cent. Dig. §§ 188-190; Dec. Dig. § 74.*] 4. INFANTS (8 74*)-ACTIONS-MISNOMER. If in such suit the answer of the guardian ad litem for infant defendants contains the same error in the name of an infant defendant, such error will not deprive the court of jurisdiction to decree sale of the land proceeded against. [Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 188-190; Dec. Dig. § 74.*] 5. INFANTS (8 80*)-ACTIONS-GUARDIAN AD LITEM-APPOINTMENT. Errors and irregularities in the appointment of a guardian ad litem, or in his answer filed, where no statute controls, will not deprive the court of its jurisdiction to pronounce decree. [Ed. Note. For other cases, see Infants, Cent. Dig. §§ 210-221; Dec. Dig. § 80.*] 6. EXECUTORS AND ADMINISTRATORS (§ 397*) -SALES UNDER ORDER OF COURT-CONVEYANCE-PROPERTY EXCLUDED. If in a suit to subject a decedent's lands to sale to pay his debts the court by its decree authorizes the commissioner appointed to sell, to first offer the mineral and mineral rights in the land, and if these do not bring sufficient to pay the debts, then to sell the whole estate in the land, and the commissioner so advertises and sells such mineral and mineral rights for sufficient to pay the debts, the court on his report is without jurisdiction by subsequent decree of confirmation, the question not being therein otherwise presented or litigated, to include in such sale property and property rights not sold, and such decree and the deed of the commissioner to the purchaser to the extent of such property and property rights are void and confer no title on the purchaser, as against infant heirs and defendants, and in a suit subsequently brought by them showing cause against such decree and deed, the same and all subsequent deeds may be removed as clouds on their title to the property and property rights not sold. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1598-1604; Dec. Dig. § 397.*] Decree reversed in part, affirmed in part, and cause remanded. E. T. England and J. B. Ellison, both of Logan, for appellants. Enslow, Fitzpatrick, Alderson & Baker, of Huntington, for appel lees. MILLER, J. Plaintiffs, Garnett Ellis (née Chapman), and Lena Chapman, adults at the time of suit, Rodolph Chapman, then an infant, but now also an adult, and Leslie, Gracie, and Elisha Chapman, then and now infants, all children and heirs at law of E. M. Chapman, deceased, and Olivia Chapman, his wife, said infants suing by Garnett Ellis, their next friend, on February 1, 1909, brought this suit against J. R. Branch, Branchland Coal Company, and others, seeking upon several grounds to set aside, annul and remove as alleged clouds on their title to a tract of one hundred and twenty-nine acres, and a half undivided interest in a tract of one hundred and thirteen acres of land in Lincoln County, certain decrees and orders and deeds made pursuant thereto, pronounced in a certain other suit, instituted by the said Olivia Chapman, as administratrix of their father, E. M. Chapman, against them or some of them, then all infants, and others, on September 25, 1899, to sell said lands to pay the debts of said decedent because of alleged deficiency of personal assets. The process in the suit of said administratrix recited the names of all the infant defendants correctly, except Garnett; in her stead M. J. Chapman is named. In the bill all are impleaded correctly except Garnett and Elisha; in their places M. J. Chapman 7. EXECUTORS AND ADMINISTRATORS (§ 356*) and Eliza Chapman are named. And the -SALES UNDER ORDER OF COURT-CONCLU-guardian ad litem answered for those nam SIVENESS OF DECREE. If in such suit to sell a decedent's lands one not a party, or mentioned in the bill, and against whom no relief is sought, claiming to be assignee of an alleged oral contract of sale by decedent to another of a part of his land, intervenes by petition setting up such oral contract, praying for specific execution, and for deed, but not making parties thereto, and without process thereon, the court is without jurisdiction to decree specific performance of such alleged contract against infant heirs and defendants not parties and for whom no appearance or defense is made, and such decree and the deed of the commissioner appointed to convey such land to petitioner is void, and in a suit by such infants subsequently brought showing cause against such decree and deed the same and all subsequent deeds may be set aside and removed as clouds on the title of such infants. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1463-1467; Dec. Dig. 356.*] Robinson, J., dissenting. Appeal from Circuit Court, Lincoln County. Bill in equity by Lena Chapman and others against J. R. Branch and others. From a decree for defendants, plaintiffs appeal. ed in the bill, and no answer was otherwise made for Garnett and Elisha. The decrees of sale and confirmation of the mineral and mineral rights under the 129 acre tract complained of were pronounc ed on April 13, 1900, and August 22, 1900, respectively; and the decree made on petition of Johnson Ferguson, adjudging him entitled to said half undivided interest of said E. M. Chapman, in said 113 acre tract, and directing a deed to be made to him therefor, was also pronounced on April 13, 1900. The grounds for relief alleged, briefly stated, are: First, that neither Garnett nor Elisha were ever made parties to the suit, or bill, and never appeared, and that both remained infants during the whole progress of the suit; that D. E. Wilkinson, appointed guardian ad litem, was a defendant, a creditor, and so interested as to render him an incompetent person to represent them, and that the court therefore never acquired jurisdiction to pronounce the decrees against them; second, that though the decree authorized sale of the 129 acres in fee, if the mineral rights would not sell for sufficient ting in issue all the material allegations of to pay debts, yet only mineral rights were advertised and sold, but that in the decree of confirmation along with the mineral rights sold, the court undertook to confirm and the commissioner appointed to convey timber, building rights and other surface rights not sold, leaving plaintiffs, as owners of the surface, absolutely at the mercy of the purchaser of the mineral rights; third, that though E. M. Chapman, at his decease, was owner of said half undivided interest in the 113 acre tract, the court by one of the decrees complained of, on mere ex parte petition of Johnson Ferguson, without process, notice, or other proceedings against plaintiff and without appearance, on one and the same day allowed said petition to be filed, and decreed petitioner entitled to that interest, and appointed a commissioner to convey him the legal title thereto, in violation of the statute of frauds, of the rights of plaintiffs, and of all proper rules of procedure, and without having acquired jurisdiction to do so; fourth, that said sale was decreed, without giving the administratrix and heirs at law or some one for them, a day to pay the debts decreed; fifth, that the mineral and mineral rights were sold for a grossly inadequate price; sixth, that it was error to decree a sale of said land before assigning dower to the widow. The bill shows that the lands and mineral interests in controversy and so affected by said decrees have come by sundry mesne conveyances to the possession and ownership of the defendant Branchland Coal Company; that its immediate predecessor, the Lincoln Coal Company, in 1901, took possession of said lands, especially the 129 acre tract, and immediately began cutting timber, building tram roads, and opening up coal mines; that it took possession of the whole of the land fronting on the river, about forty acres, and built houses thereon, also of the land on Four Mile Creek, for the distance of about one fourth of a mile, cut large ditches therein, built roads, and continued these operations for some time, until the Branchland Coal Company took charge and continued said operations; and that the whole of the merchantable timber has been cut from the land and used in building houses, barns and other buildings, and for cross ties and timber in its coal mines, and that the larger portion of the coal under said land has been mined and shipped away; that taken from the 129 acres being valued at $15,000.00; and the one half of that taken from the 113 acres is estimated at $2,500.00, for which and for other rents and profits, plaintiffs alleged they are entitled to an accounting with defendants. The purchaser, Smith, of the mineral and mining rights under the 129 acre tract, was a stranger to the suit, and so far as the record discloses was not otherwise interested; and the answers of J. R. the bill, shows respondents to have been remote and innocent purchasers, without notice, otherwise than by what is disclosed by the record of the cause, of any infirmities in the title, and this fact is not controverted. [1, 2] We think it settled law in this state, that the title of an immediate purchaser, and of remote purchasers, not parties under a judicial decree, cannot be disturbed or af fected by reversal on appeal, or on setting aside of a decree of sale for mere error therein, not going to the jurisdiction of the court, and that Smith and those holding under him are now protected by section 8, chapter 132, Code 1906. Sinnett v. Cralle's Adm'r, 4 W. Va. 600; Martin v. Smith, 25 W. Va. 579, 586; Dunfee v. Childs, 45 W. Va. 165, 30 S. E. 102; Stewart v. Tennant, 52 W. Va. 560, 44 S. E. 223, 7 Syl.; Perkins v. Pfalzgraff, 60 W. Va. 121, 53 S. E. 913; Hansford v. Tate, 61 W. Va. 207, 56 S. E. 372. The reasons for this rule and the legal principles underlying it are sufficiently covered by the opinions in the cases cited, and particularly in the cases of Dunfee v. Childs and Perkins v. Pfalzgraff, supra, and we need not reiterate them. These cases or some of them apply this rule to infants as well as adults proceeding by prochein ami before majority, as they may, Poling v. Poling, 61 W. Va. 78, 55 S. E. 993, Seymour v. Alkire, 47 W. Va. 302, 305, 34 S. E. 953, and cases cited, or in proper person after disability removed either under section 7, chapter 132, Code, or by motion, original bill or bill of review to set aside such decree of sale. It is quite apparent that the fourth, fifth and sixth grounds for relief relied on fall within this rule, and that no reversal of the decree of sale for alleged errors therein will entitle plaintiffs to any relief against the immediate purchaser Smith, or any subsequent grantee, and particularly respondents Branch, and Branchland Coal Company, and that as to them this question is a closed one. [3, 4] Next, and with reference to this rule, let us consider the other grounds for relief. First, as to Garnett and Elisha Chapman. Did the court acquire jurisdiction to sell their interests in the land purchased by Smith? Four of the six plaintiffs, infant defendants in the former suit, were properly named in the summons, but two, Garnett and Elisha, were not named in the bill, otherwise than as M. J. and Eliza Chapman. Wilkinson was appointed guardian ad litem for the infant defendants, by the names designated in the bill, and so answered for them. No other answer appears to have been filed for Garnett or Elisha, and they were not served with process and did not otherwise appear. But their mother, the plaintiff and administratrix was examined as a witness in the cause, and gave the names of all these infant defendants correctly. |