Helms v. Manspile

• Decision Date: 16 January 2009
• Docket Number: Record No. 072306.
• Citation: 277 Va. 1,671 S.E.2d 127
• Court: Virginia Supreme Court
• Parties: Thomas M. HELMS, et al. v. James L. MANSPILE, et al.

671 S.E.2d 127

277 Va. 1

Thomas M. HELMS, et al. v. James L. MANSPILE, et al.

Record No. 072306.

Supreme Court of Virginia.

January 16, 2009.

Robert C. Hagan, Jr., Daleville, for appellants.

William L. Heartwell III, for appellees.

Present: All the Justices.

OPINION BY Chief Justice LEROY ROUNTREE HASSELL, SR.

I.

In this appeal the primary issue we consider is whether alleged owners of real estate established as a matter of law that they own title to a parcel of land by adverse possession.

II.

James L. Manspile and Sheri N. Graham (the Manspiles) filed a complaint against Thomas M. Helms, Barbara S. Helms, and others. The Manspiles sought a declaration that they own an easement that transverses land owned by the Helms. The Helms filed a counterclaim and, among other things, sought an adjudication that they own a "102-feet" tract of land, described as Parcel 2, by adverse possession.

At the conclusion of a bench trial, the circuit court held that the Manspiles did not have an easement over the Helms' property and had an easement existed, it had been abandoned. The circuit court also ruled that the Helms failed to establish their claim of ownership of Parcel 2 by adverse possession.

III.

The relevant facts necessary to our resolution of this appeal are not in dispute. The Helms and the Manspiles own adjoining tracts of land in Botetourt County. The Helms purchased their land in 1972. Their expert witness testified that the Helms' property consists of two parcels: Parcel 1 which is not pertinent to this appeal; and Parcel 2, which is a rectangular strip of land 102 feet in length. The actual boundary line between the Helms' property and the Manspiles' property could not be determined because the descriptions in the deeds in both the Manspiles' and the Helms' chains of title are inadequate to permit a surveyor to ascertain the property line.

When the Helms purchased their property in 1972, the property was enclosed within a fence. They considered the fence, which extended along the northern border of the 102-feet parcel, as the boundary for their property. Their land was "mostly cleared" and contained "second growth timber."

An old barbed wire fence, that extended along the northern boundary of Parcel 2, had existed for over 50 years. In 1998 or 1999, the Manspiles, with the Helms' permission, replaced the old barbed wire fence with a new fence and the Manspiles erected the new fence in the same location where the old fence had been located.

The Helms' predecessors in title kept cattle that grazed on Parcel 2. They also kept a milk cow and a horse on the enclosed Parcel 2. The Helms' predecessors in title had erected buildings on Parcel 2, including a "smokehouse" that had been built over 65 years ago.

Since 1972, Thomas Helms used a tractor to clear "brush off" of Parcel 2. He also maintained dog kennels on Parcel 2. The Helms constructed a "skid road" and hauled timber on Parcel 2. On one occasion, Thomas Helms asked the Manspiles for permission to "haul timber" across their property. The Manspiles refused to grant permission, so Helms transported the timber across Parcel 2. James Manspile testified at trial that he did not believe he had any right to prevent Helms from hauling timber across Parcel 2.

The Helms testified that beginning with their purchase of the property in 1972, they treated Parcel 2 as their property. James Manspile thought that the Helms owned Parcel 2 because "[j]ust over time [Thomas Helms] had cleared brush and had cut wood and different things on that property. The fence never was no further. So in my knowledge, being 31 years old, I didn't figure it went any further." The Manspiles did not assert any claim of ownership of Parcel 2 until the commencement of this litigation.

IV.

The Helms contend that they proved by clear and convincing evidence that they own the title to Parcel 2 by adverse possession. Responding, the Manspiles assert that this Court should dismiss the Helms' appeal because they did not object to the circuit court's rulings. Continuing, the Manspiles argue that the Helms failed to establish that they had title to Parcel 2 by adverse possession. We disagree with the Manspiles' contentions.

At the conclusion of the presentation of evidence at trial, the circuit court directed the litigants to submit written memoranda of law that included their closing arguments. The Helms submitted their memorandum that included, among other things, their contention that they owned Parcel 2 by adverse possession. After the circuit court reviewed the memoranda submitted by counsel for the litigants, the circuit court issued a letter opinion that embodied its rulings. Subsequently, the circuit court entered an order that incorporated its letter opinion by reference. Counsel for both litigants endorsed the order as "seen."

We hold that the Helms preserved their right to challenge on appeal the circuit court's ruling on adverse possession. Code § 8.01-384(A) states:

"No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again in order to preserve his right to appeal, challenge, or move for reconsideration of, a ruling, order, or action of the court. No party shall be deemed to have agreed to, or acquiesced in, any written order of a trial court so as to forfeit his right to contest such order on appeal except by express written agreement in his endorsement of the order. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal."

Once a litigant informs the circuit court of his or her legal argument, "[i]n order for a waiver to occur within the meaning of Code § 8.01-384(A), the record must affirmatively show that the party who has asserted an objection has abandoned the objection or has demonstrated by his conduct the intent to abandon that objection." Shelton v. Commonwealth, 274 Va. 121, 127-28, 645 S.E.2d 914, 917 (2007); see King v. Commonwealth, 264 Va. 576, 581, 570 S.E.2d 863, 865-66 (2002); Chawla v. Burger Busters, Inc., 255 Va. 616, 623, 499 S.E.2d 829, 833 (1998).

Clearly, pursuant to Code § 8.01-384(A), the Helms preserved their right to challenge on appeal the ruling of the circuit court. As agreed upon by the circuit court, the Helms submitted a written memorandum and argued that they owned the title to Parcel 2 by adverse possession. The trial court was well aware of the Helms' legal positions and the Helms did not expressly withdraw or waive their arguments.

We recognize that Rule 5:25 states: "Error will not be sustained to any ruling of the trial court or the commission before which the case was initially tried unless the objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice." However, Code § 8.01-384(A), which the Manspiles cite but do not discuss in its entirety, is controlling over Rule 5:25, and we must apply the statutory provision. Va. Const. Art. VI, § 5; Dorn v. Dorn, 222 Va. 288, 291, 279 S.E.2d 393, 394-95 (1981); Turner v. Commonwealth, 221 Va. 513, 519-20, 273 S.E.2d 36, 40 (1980).

We now consider the Helms' contention that they established title to Parcel 2 by adverse possession. Upon our determination of the proper application of the law of adverse possession to the facts of this case, we review the circuit court's judgment de novo. Quatannens v. Tyrrell, 268 Va. 360, 365, 601 S.E.2d 616, 618 (2004); Turner v. Caplan, 268 Va. 122, 125, 596 S.E.2d 525, 527 (2004); The Barter Foundation v. Widener, 267 Va. 80, 90, 592 S.E.2d 56, 60-61 (2004).

We stated in Grappo v. Blanks, 241 Va. 58, 61-62, 400 S.E.2d 168, 170-71 (1991):

"To establish title to real property by adverse possession, a claimant must prove actual, hostile, exclusive, visible, and continuous possession, under a claim of right, for the statutory period of 15 years. A claimant has the burden of proving all the elements of adverse possession by clear and convincing evidence.

"Use and occupation of property, evidenced by fencing the property, constitutes proof of actual possession. One is in hostile possession if his possession is under a claim of right and adverse to the right of the true owner. One's possession is exclusive when it is not in common with others. Possession is visible when it is so obvious that the true owner may be presumed to know about it. Possession is continuous only if it exists without interruption for the statutory period."

We held in Grappo that the terms claim of title, claim of right, and claim of ownership are synonymous and mean

"a possessor's intention to appropriate and use the land as his own to the exclusion of all others. That intention need not be expressed but may be implied by a claimant's conduct. Actual occupation, use, and improvement of the property by the claimant, as if he were in fact the owner, is conduct that can prove a claim of right."

Id. at 62, 400 S.E.2d at 171. In Grappo, we concluded that when a landowner enclosed approximately four acres of his neighbor's land in...