G. Corp v. Mackjo
Annotate this Case
September 1995 Term
___________
No. 22840
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G CORP, INC., A WEST VIRGINIA CORPORATION,
AND 905, INC., A WEST VIRGINIA CORPORATION,
Plaintiffs Below, Appellees
v.
MACKJO, INC., A WEST VIRGINIA CORPORATION;
AND HERMAN FLETCHER, AN INDIVIDUAL,
Defendants Below, Appellants
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Lyne Ranson, Judge
Civil Action No. 94-C-959
REVERSED AND REMANDED
___________________________________________________
Submitted: September 20, 1995
Filed: December 13, 1995
Arthur T. Ciccarello
Ciccarello, DelGuidice & LaFon
Charleston, West Virginia
Attorneys for the Appellant, MackJo, Inc.
Gerard R. Stowers
Fazal A. Shere
Elizabeth B. Elmore
Bowles, Rice, McDavid, Graff & Love
Charleston, West Virginia
Attorneys for the Appellant, Herman Fletcher
G. Nicholas Casey, Jr.
Webster J. Arceneaux, III
Brian R. Hopkins
David W. Johnson
Lewis, Friedberg, Glasser, Casey & Rollins
Charleston, West Virginia
Attorneys for Appellees
This Opinion was delivered PER CURIAM.
JUSTICE ALBRIGHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "Unless an absolute right to injunctive relief is conferred by statute, the
power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent
injunction, whether preventive or mandatory in character, ordinarily rests in the sound
discretion of the trial court, according to the facts and the circumstances of the particular
case; and its action in the exercise of its discretion will not be disturbed on appeal in the
absence of a clear showing of an abuse of such discretion." Syl. pt. 11, Stuart v. Lake
Washington Realty, 141 W. Va. 627, 92 S.E.2d 891 (1956).
2. "An owner of a servient estate may legally grant successive easements for
purposes of travel in and over a certain road or way in favor of various property owners
having need for such travel easements, to be used jointly by them; and a person having such
an easement right may not be permitted to object to any use of or change in the character of
such road or way by the owner of the servient estate or by any other owner of such an
easement right or way so long as the rights of the one complaining are not thereby impaired
or interfered with in an undue or unreasonable manner or degree." Syl. pt. 6, Sanders v.
Roselawn Memorial Gardens, 152 W. Va. 91, 159 S.E.2d 784 (1968).
3. "'The fundamental rule in construing covenants and restrictive agreements
is that the intention of the parties governs. That intention is gathered from the entire
instrument by which the restriction is created, the surrounding circumstances and the objects
which the covenant is designed to accomplish.' Wallace v. St. Clair, 147 W. Va. 377, 390, 127 S.E.2d 742, 751 (1962)." Syl. pt. 2, Allemong v. Frendzel, 178 W. Va. 601, 363 S.E.2d 487 (1987).
4. "This Court will not pass on a nonjurisdictional question which has not been
decided by the trial court in the first instance." Syl. pt. 2, Sands v. Security Trust, 143 W.
Va. 522, 102 S.E.2d 733 (1958).
Per Curiam:
This action is before this Court upon an appeal from the final order of the
Circuit Court of Kanawha County, West Virginia, entered on October 4, 1994. This action
concerns an easement conveyed by appellant, Mackjo, Inc., to appellant, Herman Fletcher.
The appellees, G Corp, Inc., and 905, Inc., contend that the easement conveyed to Fletcher
violates a protective covenant previously executed by MackJo, Inc., for the benefit of the
appellees.
This Court has before it all matters of record and the briefs and argument of
counsel. For the reasons expressed below, this Court is of the opinion that the easement
conveyed to Fletcher did not violate the protective covenant. We, therefore, reverse the final
order of the circuit court and remand this action for further proceedings.
I
MackJo, Inc., is an owner and developer of various tracts of real property
located along U.S. Route 119, also known as Corridor G, in Kanawha County, West
Virginia. Included within that property is a tract known as Childress Place, a light industrial
park developed by MackJo, Inc., for commercial enterprises, including manufacturing,
warehousing and distribution businesses. In furtherance of the commercial purpose of
Childress Place, MackJo, Inc., in March 1990, executed a Declaration of Protective
Covenants and Restrictions. The Declaration contains eight articles, most of which concern
the creation and responsibilities of an association of business owners within the park. Generally, the association is responsible for the maintenance and preservation of common
areas in the park and for the collection of assessments for that purpose.
On March 27, 1990, MackJo, Inc., conveyed 11.28 acres within Childress
Place to G Corp, Inc., and also conveyed to G Corp, Inc., "a non-exclusive 40 foot easement
or right-of-way" leading from Corridor G to the 11.28 acres. The deed provided that the
conveyance was subject to the Declaration of Protective Covenants. The consideration for
the transfer was $220,000, and Dennis R. Vaughan, president of G Corp, Inc., contends that
G Corp, Inc., was induced by the Declaration to make the purchase. Thereafter, G Corp,
Inc., leased to 905, Inc., which operates a beer distributorship upon the property.
Article IV of the above Declaration of Protective Covenants is entitled
"Property Rights," and pursuant to section 4.02 thereof, MackJo, Inc., reserved "unto itself,
its successors and assigns, including any future owners, the right to use the streets."
Moreover, article VII of the Declaration is entitled "Easements," and section 7.02 thereof
states:
In addition to the rights reserved by Declarant [MackJo, Inc.] in
Section 4.02 of this document, Declarant reserves unto itself, its
successors and assigns, the right of ingress, egress and regress
upon, over and across the streets and roads comprising Childress
Place to adjacent and neighboring tracts of land now owned by
Declarant, including, but not limited to, the tracts from which
Childress Place was derived. It is contemplated that Declarant
will develop tracts adjacent and neighboring to Childress Place
and, most likely, will utilize the entrance, roads and streets of
Childress Place in such development and use thereof. Should
Declarant, or its successor or assigns, or any third party outside
the Association, utilize or be given the right to utilize the streets
and roads of Childress Place for ingress, egress or regress to adjacent and neighboring properties, then they will be required
to bear the reasonable and respective cost for maintenance of
same.
Furthermore, article VI of the Declaration is entitled "Covenants and
Restrictions." Section 6.01 of that article provides: "The following covenants, restrictions,
limitations, regulations and agreements are hereby imposed on lots in Childress Place, . . .
[n]o part of the Industrial Park shall be used for residential purposes."
Subsequent to the purchase by G Corp, Inc., MackJo, Inc., in November 1992,
conveyed to Herman Fletcher a "non-exclusive right-of-way and easement, 40 feet in width,"
leading from Corridor G to various tracts of real property owned by Fletcher. The record
indicates that Herman Fletcher intends to develop his property into a residential subdivision
known as Southridge Estates. Importantly, Childress Place is located between Corridor G
and the Fletcher property, and the easement conveyed to Fletcher runs with the access road
or easement previously conveyed to G Corp.See footnote 1 The record indicates that, although Fletcher has engaged in considerable site development work concerning the proposed Southridge
Estates, little or no active residential development has taken place, and, in fact, Fletcher may
even abandon the Southridge Estates project. The deed granting the easement to Fletcher
states that, if Fletcher uses any lots for "light industrial purposes," then covenants and
restrictions comparable to those set forth in the Declaration pertaining to Childress Place
shall apply.
In May 1994, G Corp, Inc., and 905, Inc., filed a complaint for declaratory and
injunctive relief in the Circuit Court of Kanawha County. The complaint set forth various
provisions of the Declaration of Protective Covenants and Restrictions executed by MackJo,
Inc., and asked the circuit court to grant an injunction prohibiting MackJo, Inc., and Herman
Fletcher from using the access road to reach the Fletcher property. In addition to suggesting
a breach of the Declaration, the complaint alleged that the actions of MackJo, Inc., and
Herman Fletcher overburdened the right-of-way and resulted in an economic loss to G Corp,
Inc., and 905, Inc., and was a safety hazard. Filing answers generally denying the allegations
of the complaint, MackJo, Inc., and Fletcher asserted counterclaims seeking a declaration
that their actions were proper.
The exhibits, testimony and other matters of evidence submitted to the circuit
court by the parties are voluminous. The circuit court conducted a hearing in September 1994 and entered its final order on October 4, 1994. Pursuant to that order, the circuit court
granted an injunction prohibiting MackJo, Inc., and Fletcher from using any part of the
Childress Place Industrial Park for ingress or egress to the proposed Southridge Estates. The
ruling of the circuit court was based entirely upon the provision of the Declaration which
states that "[n]o part of the Industrial Park shall be used for residential purposes." This
appeal followed.
II
In this appeal MackJo, Inc., and Herman Fletcher contend that the easement
conveyed to Fletcher for the development of Southridge Estates did not violate the
Declaration pertaining to Childress Place. Moreover, MackJo, Inc., and Fletcher contend
that there is no practical alternative road to the Fletcher property and that, if the injunction
is upheld, Fletcher may lose the value of approximately $1,000,000 in improvements to his
property. In addition, MackJo, Inc., and Fletcher assert that the remedy of damages is
available to G Corp, Inc., and 905, Inc., if necessary, and, therefore, an injunction was not
justified.
On the other hand, G Corp, Inc. and 905, Inc., contend that the "no residential
purposes" provision of the Declaration is clear and that, but for that protective covenant, they
would not have located their business in Childress Place. Moreover, G Corp, Inc., and 905,
Inc. contend that Fletcher can, in fact, develop an alternative road to the Fletcher property
and that the successive easements over the access road in question have resulted in an
economic loss to G Corp, Inc., and 905, Inc. and a safety hazard. Furthermore, G Corp, Inc., and 905, Inc., contend that, inasmuch as the problems concerning the successive easements
are continuing in nature, the remedy of damages is not a viable alternative to an injunction.
In Phillips v. Fox, 193 W. Va. 657, 458 S.E.2d 327 (1995), this Court
articulated a general standard of review concerning the findings and conclusions of a circuit
court. As we stated in Phillips: "We review the final order and the ultimate disposition
under an abuse of discretion standard, and we review the circuit court's underlying factual
findings under a clearly erroneous standard. Questions of law are subject to a de novo
review." 193 W. Va. at ___, 458 S.E.2d at 331. That statement comports with this Court's
earlier pronouncements concerning injunction cases, particularly in terms of "abuse of
discretion." Syllabus point 6 of Board of Dental Examiners v. Storch, 146 W. Va. 662, 122 S.E.2d 295 (1961), holds: "The denial or granting of an injunction by a trial court is
discretionary and will not be disturbed upon an appeal unless there is an absolute right for
an injunction or some abuses shown in connection with the denial or granting thereof."
Similarly, as this Court stated in syllabus point 11 of Stuart v. Lake Washington Realty, 141
W. Va. 627, 92 S.E.2d 891 (1956):
Unless an absolute right to injunctive relief is conferred
by statute, the power to grant or refuse or to modify, continue,
or dissolve a temporary or a permanent injunction, whether
preventive or mandatory in character, ordinarily rests in the
sound discretion of the trial court, according to the facts and the
circumstances of the particular case; and its action in the
exercise of its discretion will not be disturbed on appeal in the
absence of a clear showing of an abuse of such discretion.
See also Mahoney v. Walter, 157 W. Va. 882, 888, 205 S.E.2d 692, 697 (1974).
In this action, G Corp, Inc., and Herman Fletcher are the owners of successive easements
over the access road from Corridor G. This Court discussed successive easements in
Sanders v. Roselawn Memorial Gardens, 152 W. Va. 91, 159 S.E.2d 784 (1968). In Sanders,
the owner of a residence and a corporation operating a cemetery each owned a thirty-foot
easement or right-of-way over a road between their respective properties. Acting with the
consent of the owner of the servient estate, a third party, the corporation engaged in work to
widen the road and make other improvements. This Court, in Sanders, upheld a
determination by the trial court that the work upon the road did not unduly interfere with the
easement of the owner of the residence. Syllabus point 6 of Sanders states:
An owner of a servient estate may legally grant
successive easements for purposes of travel in and over a certain
road or way in favor of various property owners having need for
such travel easements, to be used jointly by them; and a person
having such an easement right may not be permitted to object to
any use of or change in the character of such road or way by the
owner of the servient estate or by any other owner of such an
easement right or way so long as the rights of the one
complaining are not thereby impaired or interfered with in an
undue or unreasonable manner or degree.
The above syllabus point of Sanders was relied upon by this Court in Rippetoe
v. O'Dell, 166 W. Va. 639, 276 S.E.2d 793 (1981). Rippetoe involved a dispute between
the owners of successive easements wherein the appellants sought an injunction for the
removal of a gas line from underneath a common road. This Court held that the trial court
correctly denied the injunction for the removal. In Rippetoe, we observed that there was "no
evidence that at the time suit was brought the buried gas line constituted any impairment of or interference with the appellants' right of ingress and egress." 166 W. Va. at 642, 276 S.E.2d at 796.
Here, MackJo, Inc., clearly had an initial right to grant successive easements
to G Corp, Inc., and Herman Fletcher, especially for the reason that the access road,
including that portion of the road running through Childress Place, is located upon property
currently owned by MackJo, Inc. See n. 1, supra. However, inasmuch as the access road
runs through Childress Place, the Declaration of Protective Covenants must be considered.See footnote 2
As this Court held in syllabus point 2 of Allemong v. Frendzel, 178 W. Va. 601, 363 S.E.2d 487 (1987): "'The fundamental rule in construing covenants and restrictive agreements is
that the intention of the parties governs. That intention is gathered from the entire instrument
by which the restriction is created, the surrounding circumstances and the objects which the
covenant is designed to accomplish.' Wallace v. St. Clair, 147 W. Va. 377, 390, 127 S.E.2d 742, 751 (1962)." See also, syl. pt. 1, Armstrong v. Stribling, 192 W. Va. 280, 452 S.E.2d 83 (1994); syllabus, Teays Farms Owners Association v. Cottrill, 188 W. Va. 555, 425 S.E.2d 231 (1992); syl. pt. 1, McIntyre v. Zara, 183 W. Va. 202, 394 S.E.2d 897 (1990). Moreover, we recently confirmed in syllabus point 1 of Akers v. Department of Tax and
Revenue, No. 22726, ___ W. Va. ___, ___ S.E.2d ___ (July 11, 1995), that "'[a] valid
written instrument which expresses the intent of the parties in plain and unambiguous
language is not subject to judicial construction or interpretation but will be applied and
enforced according to such intent.' Syllabus Point 1, Cotiga Development Co. v. United Fuel
Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962)."
In this action, the ruling of the circuit court was based entirely upon the
provision of the Declaration which states that "[n]o part of the Industrial Park shall be used
for residential purposes." As indicated above, however, that provision of the Declaration
falls within article VI of the Declaration which is prefaced by the admonishment that "[t]he
following covenants, restrictions, limitations, regulations and agreements are hereby imposed
on lots in Childress Place [.]" (emphasis added) That article of the Declaration is in contrast
to article IV which is entitled "Property Rights" and which provides that MackJo, Inc.,
reserves unto itself "the right to use the streets." The Declaration further provides in article
VII that "in addition" to the right of MackJo, Inc., to use the streets within Childress Place,
MackJo, Inc., reserves the right of "ingress, egress and regress upon, over and across the
streets and roads comprising Childress Place [.]" The latter provision of the Declaration
states that it is contemplated that MackJo, Inc., "will develop tracts adjacent and neighboring
to Childress Place and, most likely, will utilize the entrance, roads and streets of Childress
Place in such development and use thereof."
In view of the intent of MackJo, Inc., to develop its property beyond the
Childress Place Industrial Park, as evidenced by the Declaration, the petition for appeal
correctly suggests that it is somewhat implausible that the subsequent easement granted to
Fletcher was prohibited by a protective covenant. This Court is of the opinion that MackJo,
Inc., and Herman Fletcher are correct in their assertion that the circuit court recognized the
Declaration's protective covenants but not the rights reserved by MackJo, Inc. Therefore,
the conclusion of the circuit court that the Declaration prohibits MackJo, Inc., and Fletcher
from using any part of the Childress Place Industrial Park for ingress or egress to the
proposed Southridge Estates constituted an abuse of discretion and is reversed.
Nevertheless, although the ruling of the circuit court was entirely based upon
the Declaration of Protective Covenants, the complaint of G Corp, Inc., and 905, Inc.,
additionally alleged a cause of action for impairment or interference with regard to their
easement. See syl. pt. 6 of Sanders, supra. Specifically, as indicated above, in addition to
suggesting a breach of the Declaration, the complaint alleged that the actions of MackJo,
Inc., and Herman Fletcher overburdened the right-of-way and resulted in an economic loss
to G Corp, Inc., and 905, Inc., and a safety hazard. Included in that cause of action is the
question of whether Fletcher can develop an alternative road to his property. The circuit
court received evidence as to that cause of action but made no final ruling thereon in the final
order. That aspect of the case is, therefore, not before us. In syllabus point 2 of Sands v.
Security Trust, 143 W. Va. 522, 102 S.E.2d 733 (1958), this Court held: "This Court will
not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance." See also syl. pt. 4, State ex rel. State Line Sparkler v. Teach, 187 W .Va. 271,
418 S.E.2d 585 (1992). Other issues, beyond the question of the Declaration, thus remain
and need to be addressed by the circuit court.
In summary, the final order of the Circuit Court of Kanawha County, holding
that the Declaration of Protective Covenants prohibits MackJo, Inc., and Herman Fletcher
from using any part of the Childress Place Industrial Park for ingress or egress to the
proposed Southridge Estates is reversed. However, this case is remanded to the circuit court
for proceedings concerning the cause of action alleged by G Corp, Inc., and 905, Inc, for
impairment or interference with regard to their easement over the access road from Corridor
G.
Reversed and remanded.
Footnote: 1
As stated in the petition for appeal, the access road, which includes the
successive easements of G Corp, Inc., and Herman Fletcher, runs through the Childress
Place industrial park but does not cross G Corp's property within the park. In fact, the
property upon which the access road is located is presently owned by MackJo. See Map
appended to this opinion indicating the respective locations of Childress Place, the access
road, G Corp's property and the proposed Southridge Estates.
Specifically, when the access road was completed, G Corp, Inc., reserved
its easement and conveyed its interest in the property upon which the access road was
constructed to MackJo. According to G Corp, Inc., and 905, Inc., that transaction
resulted in MackJo, Inc., acquiring a strip of land subject to the restrictions contained in
the Declaration. There is no question, however, that a portion of the access road runs
through Childress Place, which puts the Declaration in issue. In any event, the
Declaration must be read in its entirety to determine the intent underlying its execution.
Footnote: 2
As stated in the brief filed in this appeal by G Corp, Inc., and 905, Inc.:
True -- both the existing access road and the proposed
extension are located on property presently owned by Mackjo
-- however, both pieces of property are also located in the
Childress Place Industrial Park, and are thus, subject to the
Covenants and Restrictions of record in the Offices of the
Clerk of the Kanawha County Commission.
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