Carey v. Campbell, s. 15307

• Decision Date: 14 July 1982
• Docket Number: Nos. 15307,15516,s. 15307
• Parties: William B. CAREY v. Robert CAMPBELL and Sandra Campbell. William B. CAREY v. Robert J. CAMPBELL, et al.
• Court: West Virginia Supreme Court

Page 32

295 S.E.2d 32

170 W.Va. 541

William B. CAREY v. Robert CAMPBELL and Sandra Campbell.

William B. CAREY v. Robert J. CAMPBELL, et al.

Nos. 15307A, 15516.

Supreme Court of Appeals of West Virginia.

July 14, 1982.

Rehearing Denied Sept. 16, 1982.

Syllabus by the Court

1. "The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing proof." Syl. pt. 1, Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976).

2. "A finding of fact made by a trial chancellor or by a trial court sitting in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by this Court on appeal unless the evidence plainly and decidedly preponderates against such finding." Syl. pt. 8, Sanders v. Roselawn Memorial Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968).

William B. Carey, pro se, Berkeley Springs.

Rice, Hannis & Douglas and Richard L. Douglas, Martinsburg, for respondents-appellees.

PER CURIAM:

This is an appeal from a final judgment of the Circuit Court of Morgan County entered on July 14, 1981. The appellant, William B. Carey, contends, inter alia, that the court erred in finding that he had not acquired an easement over the property of the appellees, Robert and Sandra Campbell. For the reasons set forth below, we affirm.

The parties are owners of adjacent tracts of land located in the Rock Gap District of Morgan County. They acquired their respective properties in 1969. In November of 1981 the appellant filed a petition for an injunction claiming that the appellees had wrongfully closed a dirt lane running through their property which provided him access to his own land. The appellant contended that the lane had been open in 1969 when the parties purchased their properties and had remained open until the appellees blocked the lane in 1981 by erecting fences and gates and plowing the land beneath the lane. He also contended that he and his predecessors in title had established an easement to use the appellees' lane.

The court issued a temporary injunction directing that the lane be reopened. A trial was subsequently had before the court sitting in lieu of a jury. At the conclusion of the taking of evidence, the court found that the appellant had no legal right to use the appellees' property and dissolved the injunction previously issued. At trial, the appellant had argued that he had various types of easements over the lane in question: an easement of necessity, an easement by prescription, and an easement by implication. He also argued that the land was a public road. In his written opinion and order, the trial judge discussed each of these arguments separately and set forth the reasons why the...