O'dell v. Robert

• Decision Date: 24 November 2010
• Docket Number: No. 35488.,35488.
• Citation: 703 S.E.2d 561,226 W.Va. 590
• Parties: Michael J. O'DELL, Plaintiff Below, Appellee,v.Robert and Virginia STEGALL Defendants Below, Appellants,andSidney Seibert, Clifford E. and Mary Belle Starliper, and Donald E. and Patricia Walker, Defendants Below.
• Court: West Virginia Supreme Court

226 W.Va. 590

703 S.E.2d 561

Michael J. O'DELL, Plaintiff Below, Appellee,

v.Robert and Virginia STEGALL Defendants Below, Appellants,andSidney Seibert, Clifford E. and Mary Belle Starliper, and Donald E. and Patricia Walker, Defendants Below.

No. 35488.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 2010.Decided Nov. 24, 2010.

[703 S.E.2d 567 , 226 W.Va. 596]

Syllabus by the Court

1. A person claiming a prescriptive easement must prove each of the following

[226 W.Va. 597 , 703 S.E.2d 568]

elements: (1) the adverse use of another's land; (2) that the adverse use was continuous and uninterrupted for at least ten years; (3) that the adverse use was actually known to the owner of the land, or so open, notorious and visible that a reasonable owner of the land would have noticed the use; and (4) the reasonably identified starting point, ending point, line, and width of the land that was adversely used, and the manner or purpose for which the land was adversely used.

2. “In order to establish a right of way by prescription, all of the elements of prescriptive use, including the fact that the use relied upon is adverse, must appear by clear and convincing proof.” Syllabus Point 2, Beckley Nat. Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935).

3. A person claiming a prescriptive easement must establish each element of prescriptive use as a necessary and independent fact by clear and convincing evidence, and the failure to establish any one element is fatal to the claim.

4. In the context of prescriptive easements, the term “adverse use” does not imply that the person claiming a prescriptive easement has animosity, personal hostility, or ill will toward the landowner; the uncommunicated mental state of the person is irrelevant. Instead, adverse use is measured by the observable actions and statements of the person claiming a prescriptive easement and the owner of the land.

5. In the context of prescriptive easements, an “adverse use” of land is a wrongful use, made without the express or implied permission of the owner of the land. An “adverse use” is one that creates a cause of action by the owner against the person claiming the prescriptive easement; no prescriptive easement may be created unless the person claiming the easement proves that the owner could have prevented the wrongful use by resorting to the law.

6. In the context of prescriptive easements, a use of another's land that began as permissive will not become adverse unless the license (created by the granting of permission) is repudiated.

7. The burden of proving adverse use is upon the party who is claiming a prescriptive easement against the interests of the true owner of the land. To the extent our prior cases suggest that proof of adverse use is not required, or that the continuous and uninterrupted use of another's land for ten years is presumed to be adverse, they are hereby overruled.

8. For an adverse use to be “continuous,” the person claiming a prescriptive easement must show that there was no abandonment of the adverse use during the ten-year prescriptive period, or recognition by the person that he or she was using the land with the owner's permission. Additionally, the adverse use need not have been regular, constant or daily to be “continuous,” but it must have been more than occasional or sporadic. All that is necessary is that the person prove that the land was used as often as required by the nature of the easement sought, and with enough regularity to give the owner notice that the person was a wrongdoer asserting an easement.

9. For an adverse use to be “uninterrupted,” the person claiming a prescriptive easement must show that the owner of the land did not overtly assert ownership of the land during the ten-year prescriptive period. Mere unheeded requests, protests, objections, or threats of prosecution or litigation by the landowner that the person stop are insufficient to interrupt an adverse usage. If any act by the landowner succeeded in causing the person to discontinue the adverse use, no matter how brief the discontinuance, then the adverse use was interrupted.

10. The “open and notorious” or “actually known” requirement is designed to give the owner of the land ample opportunity to protect against another person's actions to establish a prescriptive easement. To establish that an adverse use was “open and notorious,” the person claiming a prescriptive easement must show that the wrongful use was visible and apparent, was not made stealthily or in secret, and was so conspicuous and obvious that a reasonable, prudent owner of land would have noticed. However, where the owner of the land had actual knowledge of the adverse use, the person claiming a prescriptive easement need not show that the use was open and notorious.

[703 S.E.2d 569 , 226 W.Va. 598]

11. “A right of way acquired by prescription for one purpose cannot be broadened or diverted, and its character and extent are determined by the use made of it during the period of prescription.” Syllabus Point 3, Monk v. Gillenwater, 141 W.Va. 27, 87 S.E.2d 537 (1955).

12. “The precise location of an easement sought to be established should be described either by metes and bounds or in some other definite way.” Syllabus Point 1, in part, Nutter v. Kerby, 120 W.Va. 532, 199 S.E. 455 (1938).

13. A person claiming a prescriptive easement must prove the reasonably precise location of the starting and ending points of the land that was used adversely, the line that the use followed across the land, and the width of the land that was adversely used. Furthermore, the manner or purpose in which the person adversely used the land must be established. This is because a right of way acquired by a prescriptive easement cannot be broadened, diverted or moved; its purpose and location are determined solely by the adverse use made of the land during the ten-year prescriptive period.

14. “In order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress, four elements must be established. It must be shown: (1) that the defendant's conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct; (3) that the actions of the defendant caused the plaintiff to suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.” Syllabus Point 3, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).

15. “In evaluating a defendant's conduct in an intentional or reckless infliction of emotional distress claim, the role of the trial court is to first determine whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination.” Syllabus Point 4, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).

16. “The right of privacy, including the right of an individual to be let alone and to keep secret his private communications, conversations and affairs, is a right the unwarranted invasion or violation of which gives rise to a common law right of action for damages.” Syllabus Point 1, Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958).

17. “An ‘invasion of privacy’ includes (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another's name or likeness; (3) unreasonable publicity given to another's private life; and (4) publicity that unreasonably places another in a false light before the public.” Syllabus Point 8, Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1984).

18. “A civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful means. The cause of action is not created by the conspiracy but by the wrongful acts done by the defendants to the injury of the plaintiff.” Syllabus Point 8, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

19. “A civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal doctrine under which liability for a tort may be imposed on people who did not actually commit a tort themselves but who shared a common plan for its commission with the actual perpetrator(s).” Syllabus Points 9, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

William Francis Xavier Becker, Esq., Rockville, MD, for Appellee.Braun A. Hamstead, Esq., Richard A. Sussman, Esq., Hamstead & Associates, L.C., Martinsburg, WV, for Appellants. KETCHUM, Justice:

Two-and-a-half centuries ago, in the days of Thomas Fairfax and John Savage, the doctrine of prescriptive easements took root in our common law. When estates were so large that the boundaries were unknown, and vast tracts were owned by individuals who never set foot on the land, it was reasonable and economical for the law to reward a diligent user of the land with an easement by prescription at the expense of the absentee owner.

In 1719, Lord Fairfax inherited a grant of 5.28 million acres of land in what is now northern Virginia and eastern West Virginia (including what is now Jefferson county). However, Lord Fairfax never set foot on his land until around 1735, and—since the territory had never been mapped when the grant by the British Crown was made—the western boundary was not established until 1746. In 1772, Captain Savage received a grant from the British Crown of 28,600 acres of land along the Ohio and Big Sandy Rivers (for himself and some of...