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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Dwight D. Conn and Donna J. Conn,

Plaintiffs Below, Petitioners

vs) No. 18-0551 (Marion County 15-C-305)

James L. Beckman and Brooke F. Beckman,

Defendants Below, Respondents

MEMORANDUM DECISION

Petitioners Dwight D. Conn and Donna J. Conn, by counsel James D. Stacy, appeal the 

April 19, 2018, order of the Circuit Court of Marion County that granted Respondents James L. 

Beckman and Brooke F. Beckman’s motion for summary judgment and denied petitioners’ motion 

for partial summary judgment in this contested right-of-way case. Respondents, by counsel Craig 

P. Erhard, filed a response in support of the circuit court’s order and a supplemental appendix. 

Petitioners filed a reply. 

The Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

Margaret E. Garrett (“Mrs. Garrett”) died on February 11, 2013. Under Mrs. Garrett’s will, 

her four adult children inherited her real property as tenants in common. That real property is 

located in the J.B. Miller Subdivision in Marion County. On February 4, 2014, Mrs. Garrett’s 

children sold the property to petitioners (“the Conns”). The Conns’s deed provides that “any and 

all existing reservations, restrictions, rights-of-way[,] and conditions are contained in the chain of 

title of the property conveyed thereby.” 

At the time of the sale, Mrs. Garrett’s son, Michael Garrett, and his wife, Sue, lived next 

door to the Conns. A long asphalt driveway ran between the Garretts’s property and the Conns’s

property. Off the driveway and near the Garretts’s house was a gravel parking pad and a twentyfoot long sidewalk that extends from the driveway to the front door of the Garretts’s house. During 

the year or so that the Conns and the Garretts were next-door neighbors, both families used the 

driveway to access their houses without dispute. Further, the Conns did not complain about the 

Garretts’s use of the parking pad or the sidewalk. 

FILED

September 9, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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On January 20, 2015, Michael and Sue Garrett sold their house to respondents (“the 

Beckmans”); thus, the Beckmans and the Conns became next-door neighbors. The Beckmans’s

deed contains a reservation that provides: “[g]rantors further except and reserve from this 

conveyance a right-of-way for ingress and egress over the existing driveway located upon one or 

more of the above-described parcels of land.” The Beckmans then began using the driveway, 

parking pad, and sidewalk that had previously been used by Michael and Sue Garrett. The 

Beckmans highlight that the driveway is the only means by which they and the Conns can access

their houses. 

When the Beckmans purchased Michael and Sue Garrett’s property, the Conns did not 

know who owned the driveway and believed it was a shared right-of-way. Thereafter, the Conns 

had professional surveyor Chad Freels survey their property and learned in May of 2015 that the 

driveway, the parking pad, and part of the sidewalk to the Beckmans’s house were situated on the 

Conns’s property. Following the survey, significant problems arose between the parties regarding 

the Beckmans’s use of the driveway, parking pad, and sidewalk. For example, the Beckmans claim 

that the Conns threatened to jackhammer the sidewalk to the Beckmans’s house, spray-painted 

“CONNS” in large fluorescent orange letters on the parking pad used by the Beckmans, and 

harassed the Beckmans’s visitors. The parties negotiated a settlement; however, the Conns 

ultimately disavowed it. 

The Conns eventually filed the underlying action alleging trespass and seeking declaratory 

relief regarding the disputed right-of-way. The Conns asserted that Michael and Sue Garrett 

conveyed no rights of ingress or egress to the Beckmans, i.e., no right to use the driveway. The 

Conns further alleged that the Beckmans had no right to use the parking pad or sidewalk because 

both could be accessed only from the driveway. 

Discovery commenced. The Beckmans produced an exhibit that contained various deeds 

and written instruments regarding their property and the Conns’s property. The exhibits reveal

that, circa 1970, Earnest G. and Genevieve Shafferman (the “Shaffermans”), who were Margaret 

E. Garrett’s parents and Michael Garrett’s grandparents, owned several contiguous tracts of land. 

Part of that land is now owned by the Conns and part is owned by the Beckmans. The right-ofway on the Conns’s property originated in a June 26, 1970, deed by which the Shaffermans

conveyed a right to use the “existing driveway” to James H. and Margaret E. Garrett.1 The 1970 

deed provides as follows with regard to the right-of-way: 

FIRST PARCEL: Beginning at a stake, a corner to Lots. No. 25 and 26 of 

the original partition of lands of J. B. Miller, deceased, in the northern line of 

Roadway “D”, said stake being a corner to land owned by James H. Garrett and 

Margaret E. Garrett, and running thence with said line of said Roadway “D” [the 

metes and bounds of the First Parcel follow]. 

The parties of the first part [the Shaffermans] reserve unto themselves, their heirs 

and assigns the right and privilege to travel over, across and on an existing driveway

 

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James and Margaret Garrett later divorced, after which James Garrett deeded his interest 

in the property to Margaret Garrett.
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on the above described parcel of land, together with the right and privilege to extend 

said driveway to the lands of the parties of the first part for the purpose of ingress, 

egress and regress to and from said Roadway “D” and the other lands of the parties 

of the first part.

(Emphasis added.) Roadway “D” intersects with the lower end of the disputed driveway and runs 

perpendicular to the driveway. Roadway “D” also runs along the southwest edge of both the 

Conns’s and the Beckmans’s properties. The Conns highlight that the driveway was not paved in 

1970 when the 1970 deed was filed. 

As for the Beckmans’ property, it traces back to two deeds from the Shaffermans. In the 

first deed, dated May 5, 1980, the Shaffermans conveyed a portion of their property to their 

grandson, Michael Garrett, and his wife, Sue. In the second deed, filed in 1989, the Shaffermans 

deeded an additional 10,819 square feet of land to Michael and Sue Garrett. The 1989 deed 

provides that the east boundary of the property aligns with an “unnamed right-of-way.” The 1989 

deed also contains a plat map that depicts the parcel’s east boundary as abutting a right-of-way

that is in the same location as the disputed driveway now used by the parties.

In a November 23, 1992, right-of-way agreement, the Shaffermans conveyed the right to 

use the “existing driveway” to Michael and Sue Garrett. The 1992 agreement references the 1970, 

1980, and 1989 deeds, and provides: 

The [Shaffermans] do hereby grant and convey unto the Grantees, J. Michael 

Garrett and Elaine Sue Garrett, husband and wife, the right and privilege to travel 

over, across and on an existing driveway on the hereinafter described parcel of land,

together with the right and privilege to extend said existing driveway to the lands 

of the Grantees for the purpose of ingress, egress and regress to and from Roadway 

“D”. . . . 

(Emphasis added.) A survey conducted in preparation for the 1992 right-of-way agreement shows 

the location of the “R/W EXISTING DRIVE TO ROADWAY D” which mirrors the location of 

the right-of-way claimed by the Beckmans.

Following discovery, the Beckmans moved for summary judgment claiming that their 

motion raised purely legal questions and that they had an express right-of-way to the driveway, 

the parking pad, and the sidewalk, as proved by the deeds, plats, and agreements in the record. The 

Conns moved for partial summary judgment with regard to the driveway (but not with regard to 

the parking pad or sidewalk) claiming that (1) the language of the 1970 deed was insufficient to 

grant an easement; (2) the 1992 deed was invalid because the Shaffermans could not convey an 

interest they did not have; and (3) even if an express easement was created in the 1970 deed, the 

easement was extinguished upon Margaret E. Garrett’s death in 2013, under the merger doctrine.

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2 With regard to the Conns’s motion for partial summary judgment, the circuit court noted 

in footnote 1 of the order on appeal that, 
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Attached to the Beckmans’s motion for summary judgment was the affidavit of Michael 

Garrett that provides: “[M]ore than 20 years ago, I helped my grandfather and father in . . . paving 

the driveway/easement which is now used by the [parties].” I “lived in the home now owned by 

the Beckman[]s and used the driveway/right-of-way for ingress and egress for that home.” “I also 

used the concrete sidewalk attached to the Beckman home to get from the . . . gravel parking area 

to the front door of the home.” “It was never my intention in my conveyance to the Conn[]s to 

exclude the Beckman[]s from using the . . . driveway/right-of-way, gravel parking area, and 

sidewalk.” “[W]hen I discussed the driveway/right-of-way with the Conn[]s (prior to selling . . . 

to the Beckman[]s) they asked me to require the Beckman[]s to split the cost of the maintenance 

of [the driveway/right-of-way.]” “After I sold the Conns’[s] home to them, I continued to reside 

in the home now belonging to the Beckman[]s, and continued to use the driveway/easement, gravel 

parking area, and sidewalk . . . just as I always had before . . . .” “At the time I sold to the Conn[]s 

the driveway/easement was open and obvious to anyone accessing the Beckman or Conn parcels.” 

“Before I sold to the Conn[]s, I explained to them that the driveway/easement was for the benefit 

of the parcel now owned by the Beckman[]s.” “At the time I sold to the Conn[]s, the gravel parking 

area was open and obvious to anyone . . . . In fact, it was well graveled, and traced out on all three 

sides with large stones.” “I explained to [the Conns] that the gravel parking area was for the benefit 

of the parcel now owned by the Beckman[]s.” “[T]he concrete sidewalk [that led from the driveway 

to the Beckmans’s] home . . . was open and obvious.” “That sidewalk has served the home . . . for 

more than ten years.” “When I conveyed the parcels to the [parties], it was my intention that the 

right to use the driveway/right-of-way easement, the gravel parking area, and the sidewalk would 

continue as rights and benefits of the Beckman[]s, and the Conn[]s knew that.” “[T]he 

driveway/right-of-way easement is necessary to the use and enjoyment of the [Beckmans’s] parcel, 

and for ingress and egress to that home. In fact, [the driveway] was constructed to serve both 

parcels.” 

Attached to the Conns’s motion for partial summary judgment was the affidavit of 

professional surveyor Chad Freels who prepared a plat of survey for the Conns in May of 2015.

Mr. Freels found that the easement referenced in the 1992 right-of-way agreement matched the 

location of the sole existing driveway on the parties’ properties and led to Roadway “D”. Further, 

in written findings attached to the plat of survey, Mr. Freels repeatedly stated that his survey was 

not designed to determine whether the Beckmans had a right to the driveway at issue in this case 

and that he made no such determination. 

Following a hearing, the circuit court granted the Beckmans’s motion for summary 

judgment and denied the Conns’s motion for partial summary judgment by order entered May 15, 

2018. The circuit court first found that the Beckmans had an express easement to the driveway 

because “all of the deeds in [the Conns’s] chain of title, including [their] own deed, contained

language which relegates the conveyance subject to the easement. Thus, [the Conns] took their 

 

[i]t does not appear that [the Conns] moved for summary judgment on the other 

disputed property rights such as the gravel parking area, and the [Beckmans’s] use 

of the sidewalk attached to their home; however, reading [the Conns’s] motion 

liberally would include in the argument that no easement exists for the benefit of 

[the Beckmans]. Accordingly, the Court has considered [the Conns’s] arguments 

comprehensively.
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parcel with actual notice of the easement referred to therein.” Second, the Conns did not dispute 

that they had notice that the easement encumbered their property when they purchased it. Thus, 

they had no protection as bona fide purchasers. Third, the doctrine of merger does not extinguish 

the Beckmans’s easement because there was no complete unity of prior ownership in the Conns’s

parcel and the Beckmans’s parcel.3

The Conns now appeal. “A circuit court’s entry of summary judgment is reviewed de 

novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Our review is guided 

by the principle that

“‘[a] motion for summary judgment should be granted only when it is clear 

that there is no genuine issue of fact to be tried and inquiry concerning the facts is 

not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty 

& Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 

770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 

421 S.E.2d 247 (1992).

Painter, 192 W. Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. Furthermore,

“[s]ummary judgment is appropriate where the record taken as a whole 

could not lead a rational trier of fact to find for the nonmoving party, such as where 

the nonmoving party has failed to make a sufficient showing on an essential element 

of the case that it has the burden to prove.” Syllabus point 4, Painter v. Peavy, 192 

W.Va. 189, 451 S.E.2d 755 (1994).

Syl. Pt. 5, Toth v. Bd. of Parks & Recreation Comm’rs, 215 W. Va. 51, 593 S.E.2d 576 (2003). 

The Conns raise three assignments of error on appeal. They first argue that the circuit court 

erred in concluding as a matter of law that the 1970 deed in the Conns’s chain of title contained a 

sufficient description of an easement to make it enforceable against future titleholders. The Conns

highlight that the language in the 1970 deed does not include the driveway’s metes or bounds, its 

point of origin, or its width or length. The Conns also assert that the location of the “existing 

driveway” in 1970 is unknown, and that the driveway currently located along the border of their 

property was not paved until 1980. Finally, the Conns claim that it is meaningless that the 1970 

deed provides the “existing driveway” intersects with Roadway “D” because Roadway “D” runs 

the length of both parties’ properties.

In support of their claims, the Conns rely on Highway Properties v. Dollar Savings Bank, 

189 W. Va. 301, 431 S.E.2d 95 (1993), in which the plaintiff sought to enforce an easement over

the defendant’s property. The deed purportedly creating the easement provided: “It is agreed and 

understood that there is common parking and rights-of-way or easements in, to and across all 

 

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In footnote 7 of the order on appeal, the circuit court noted that “[u]pon the 

pronouncement of the Court’s ruling, [the Conns’s] counsel informed the Court that said ruling 

effectively ended [the Conns’s] case, and counsel for [the Beckmans] agreed there were no 

remaining issues for trial.”
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parcels for ingress and egress from and to all other parcels.” Id. at 303, 431 S.E.2d at 97. The 

circuit court concluded that the doctrine of merger extinguished petitioner’s easement because both 

tracts were derived from a common owner. Id. at 304, 431 S.E.2d at 98. This Court agreed, but 

also found the conveyance to be insufficient as a matter of law given its “totally inadequate 

description” that “contained nothing that would serve to specify in the slightest degree any means 

of geographically locating the easements on the property.” Id. at 305-06, 431 S.E.2d at 99-100.

The Conns also rely on Folio v. Clarksburg, 221 W. Va. 397, 655 S.E.2d 143 (2007). In 

Folio, the plaintiffs sought specific performance and enforcement of two right-of-ways that were 

allegedly located on property the plaintiffs sold to the defendant, the City of Clarksburg. Id. at 399, 

655 S.E.2d at 145. “Each right-of-way agreement provided that, ‘The right-of-way for pedestrian 

travel shall connect with Traders Alley and shall connect with Pike Street across said property . . . 

for the purpose of ingress and egress for any and all purposes to the rear of the building of Grantee 

located at 110–112 South Third Street.’” Id. at 400, 655 S.E.2d at 146. The circuit court granted 

summary judgment to the City of Clarksburg, in part, because the agreements that created the rightof-ways were ambiguous as to the width and location of the rights-of-way, and therefore, were 

invalid. Id. at 401, 655 S.E.2d at 147. On appeal, we affirmed. 

Finally, the Conns rely on Hoard v. Railroad Co., 59 W. Va. 91, 53 S.E. 278 (1906). In 

Hoard, the plaintiffs contracted to sell land to be used by the defendant railway as a right-of-way.

Id. at 92, 53 S.E. at 278. The parties’ contract provided that the plaintiffs’ and the railway’s 

engineers would prepare a description of the right-of-way for inclusion in the deed. Id. The railroad 

provided a map and a description of the right-of-way, but the plaintiffs did not agree to it. The 

plaintiffs then brought a specific performance action against the railroad and, thereafter, tendered 

a “form or blank deed” to the railway that the railway did not accept. Id. at 93, 53 S.E. at 278. The 

chancery court enforced the contract of sale and the railway appealed claiming that the deed 

proffered by the plaintiffs and entered by the circuit court failed to contain a description of rightof-way conveyed to the railway. Id. This Court questioned whether the “form or blank deed”

contained the definite description to which the railway was entitled. We found that “the grantee 

has a right to a description fuller, more precise and definite, than is required in a preliminary 

contract” and ruled in favor of the railway. Id. at 93, 53 S.E. at 279. Ultimately, we held in Syllabus 

Point 1 of Hoard that

[a] deed granting . . . land for [a] right-of-way must contain on its face a 

description of the land in itself certain, so as to be identified, or, if not in itself so 

certain, it must give such description as, with the aid of evidence outside the deed, 

not contradicting it, [as] will identify and locate the land, otherwise the deed is void 

for uncertainty.

59 W. Va. at 91, 53 S.E. at 278.

The 1970 deed at issue in this appeal expressly and unambiguously grants the dominant 

tenement, now owned by the Beckmans, the right to use the “existing driveway” and contains the 

metes and bounds of Parcel One on which the “existing driveway” is found. The 1970 deed also 

describes the “existing roadway” as being “for the purpose of ingress, egress and regress to and 

from Roadway “D”.” Roadway “D” runs perpendicular to, and intersects with, the existing 
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driveway. Clearly, this conveyance is unlike the “totally inadequate description” for the right-ofway at issue in Highway Properties that “contained nothing that would serve to specify in the 

slightest degree any means of geographically locating the easements on the property.” 189 W. Va. 

at 306, 431 S.E.2d at 100. As to the Conns’s argument that the 1970 deed does not contain the 

exact metes and bounds of the “existing driveway,” “[West Virginia] Code § 36-3-5a(a) (2004) 

provides that a right-of-way cannot be declared invalid because of the failure of the granting 

instrument to include a metes and bound description, a centerline specification, or a drawing or 

plat reference.” Folio, 221 W. Va. at 401, 655 S.E.2d at 147. Nor is the conveyance at issue in this 

case like the rights-of-way at issue in Folio because the location of those rights-of-way could not

be discerned by reference to the deeds or with the aid of the evidence outside the deed. 

Accordingly, we find that the circuit court did not err in concluding that the 1970 deed contained 

a sufficient description of a right-of-way to make it enforceable against future titleholders.

In the Conns’s second assignment of error, they object to the circuit court’s “numerous 

references” in the order on appeal that they had notice of the Beckmans’s right-of-way. The Conns

claim that notice of an easement may be relevant to the creation of a prescriptive easement but not 

to the alleged express easement at issue in this case.

We find only two references regarding the Conns’s notice of easement in the circuit court’s 

lengthy and well-reasoned order. The first reference is found in paragraph “11” and provides: “It 

is undisputed that the driveway in question is open and obvious and, at present is the exclusive 

means of home access for both parties.” The second reference, found in paragraph “22,” provides: 

Additionally, there was, and is, sufficient notice to [the Conns] that there was some 

easement by which [the Beckmans’s] servient parcel was, and is, encumbered at 

the time of [the Conns’s] purchase of the servient property, and [the Conns] do not 

dispute this. In fact, they admit it in their pleadings and Discovery Responses. 

Therefore, [the Conns’s] actual knowledge of the easement, and their admission 

that at the time of the purchase – and for some time thereafter – they believed the 

property to be burdened by this easement, provides them no protection as bona fide 

purchasers . . . .

Paragraph “11” is merely a statement of facts to which the Conns did not disagree. In Paragraph

“22,” the circuit court addressed the Beckmans’s argument in their motion for summary judgment 

that the Conns lacked bona fide purchaser status due to the open and obvious nature of the “existing 

driveway.” The record supports both Paragraphs 11 and 22, which are relevant to the issues raised 

below. Hence, we find the circuit court did not err in referencing the fact that the Conns had notice 

of the Beckmans’s right-of-way. 

The Conns’s third and final assignment of error is that the circuit court erred in finding that 

the doctrine of merger did not apply in this case to extinguish any easement the Beckmans may 

have had across the Conns’s land. The Conns assert that the circuit court based that decision on 

the dicta found in Highway Properties, which provides, in part:

There are limitations to the concept of merger, as summarized in 28 C.J.S. 

Easements § 57(b) (1941): 
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“In order to extinguish an easement by merger, there must be unity 

of title and, according to some decisions, of possession and 

enjoyment of the dominant and servient estates, coextensive in 

validity, quality, and all other circumstances of right. Ways of 

necessity and natural easements are, strictly speaking, not subject to 

the doctrine of merger.” 

189 W. Va. at 304 n.4, 431 S.E.2d at 98 n.4.

The Conns argue that Michael Garrett originally owned the alleged dominant estate, the 

Beckmans’s property, outright and had an undivided one-fourth interest in the alleged subservient 

estate, the Conns’s property. The Conns claim this was sufficient unity of title for the circuit court 

to apply the doctrine of merger and to extinguish any easement the Beckmans may have had across 

the Conns’s land.

The Conns’s reliance on the doctrine of merger is misplaced because there was no complete 

unity of title in the parties’ titles. Margaret E. Garrett’s four children, including Michael Garrett, 

inherited Mrs. Garrett’s property as tenants in common and, as such, sold their property to the 

Conns. Clearly, Michael Garrett did not own his mother’s property in fee simple absolute. Further,

Michael and Sue Garrett jointly owned their property in fee simple before they sold it to the 

Beckmans. Thus, Sue Garrett continued to hold an equal share of the dominant tenement

throughout the brief period during which her husband, Michael Garrett, was one of four cotenants

of his mother’s estate. Accordingly, we find that the circuit court did not err in rejecting the 

Conns’s merger argument due to the lack of unity of title in the two properties.

For the foregoing reasons, we affirm the May 15, 2018, order granting the Beckmans’s

motion for summary judgment and denying the Conns’s motion for partial summary judgment.

Affirmed.

ISSUED: September 9, 2019 

CONCURRED IN BY: 

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison