Newman v. Michel

Decision Date11 June 2009
Docket NumberNo. 34332.,34332.
Citation688 S.E.2d 610
CourtWest Virginia Supreme Court
PartiesKenneth Dale NEWMAN and Marty Lee Newman, Appellants, v. James E. MICHEL, Jr. and Tomasina Michel, Appellees.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to de novo review." Syllabus Point 1, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).

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

4. The main features of an easement appurtenant are that there must be both a dominant and servient estate; the holder of the easement must own the dominant estate; the benefits of the easement must be realized by the owner of the dominant estate; and these benefits must attach to possession of the dominant estate and inhere to and pass with the transfer of the title to the dominant estate.

5. "Whether an easement is appurtenant or in gross is to be determined by the intent of the parties as gathered from the language employed, considered in the light of surrounding circumstances." Syllabus Point 2, Post v. Bailey, 110 W.Va. 504, 159 S.E. 524 (1931).

6. "To establish an easement by prescription there must be continued and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use." Syllabus Point 1, Town of Paden City v. Felton, 136 W.Va. 127, 66 S.E.2d 280 (1951).

7. "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).

8. "The use of a way over the land of another, permissive in its inception, will not create an easement by prescription no matter how long the use may be continued, unless the licensee, to the knowledge of the licensor, renounces the permission and claims the use as his own right, and thereafter uses the way under his adverse claim openly, continuously and uninterruptedly, for the prescriptive period." Syllabus Point 2, Faulkner v. Thorn, 122 W.Va. 323, 9 S.E.2d 140 (1940).

Charles K. Gould, Esq., Arnold J. Janicker, Esq., Jenkins Fenstermaker, PLLC, Huntington, WV, for Appellants.

Paul T. Farrell, Esq., Farrell, Farrell, & Farrell, Huntington, WV, for Appellees.


This is an appeal of two orders entered by the Circuit Court of Cabell County finding that the appellants did not have an easement of any kind across the appellees' property. First, the circuit court entered a summary judgment order finding, as a matter of law, that the appellants did not have an easement appurtenant across the property. Second, after a one-day bench trial, the circuit court entered a final judgment order holding that the appellants had failed to demonstrate, by clear and convincing evidence, that they had a prescriptive easement across the appellees' property.

After careful consideration of the trial transcript and evidence, the briefs and arguments of the parties, and all legal authority cited, we affirm the circuit court's rulings in favor of the appellees.

I. Facts and Background

The appellants, brothers Kenneth and Marty Newman, own a 77-acre tract of real property in Cabell County, West Virginia. The Newman property is an old family farm that has been owned by the Newman family since the late 1800's. Neither the Newman brothers, nor anyone else, currently lives on this property. They visit it approximately 7 to 14 times a year.

The Newman property is bordered on its southern, eastern and northern sides by property owned by the appellees, James and Tomasina Michel.1 The Michels purchased their property in 1973 and have resided on it continuously since then.

The parties' dispute is over whether the Newmans have an easement across the Michels' property to access the Newman family farm.

The genesis for the parties' dispute was in 1940, when the Newman property was owned by, and lived on by, the appellants' grandmother, Ida Newman. At that time, the property could be accessed by following County Road 26 easterly across what is now the southern part of the Michels' property, and then turning left onto a road — described in the record as "the Old Road" — that went north across the Michels' property and connected to the southern edge of the Newman property.

Near its intersection with the Old Road, County Road 26 ran alongside the north bank of the Mud River, and was occasionally impassable due to flooding. To provide an alternate route to the Newman family home, Ida Newman's son, T.M. Newman — who lived on but did not own any interest in the Newman property — in 1940 obtained a written "easement or right of way for road purposes only" from one of the Michels' predecessors in interest, Gladys and Cyril Elwell. This easement turned off of County Road 26 at the southwest edge of the Michels' property, and proceeded across the Michels' property approximately 980 feet northeast before connecting with the Old Road, also on the Michels' property. The Old Road continued north approximately 900 feet to the southern border of the Newman property. This easement allowed the Newman family to avoid County Road 26 when it was flooded and traverse a course that is currently the Michels' driveway.

In 1946, six years after the easement agreement was signed between T.M. Newman and the Elwells, T.M. Newman died. Still, the Newman family continued using the T.M. Newman easement after his death. The Newman family, including the Newman appellants (who were children at the time), moved from the family farm to Barboursville, West Virginia in approximately 1955. The Newman family continued to use the property for occasional recreational and farming purposes, and continued to access it by using the T.M. Newman easement until 1963.

In 1963, the Michels' immediate predecessor in title, Emma and Gary Fletcher, built a house on their property, the same house that the Michels reside in today. This house was built across the upper end of the T.M. Newman easement. After this house was built, the Newmans developed a new roadway, a "spur," around the new house. Apparently, the Fletchers did not give the Newman family permission to build and use the spur, but there is also no evidence the Fletchers challenged their use of it.

The Fletchers sold this house and the surrounding property to the Michels in 1973. After the Michels bought this property, the Newmans continued to proceed up the Michels' driveway and use the spur connecting with the Old Road that lead to their property. James Michel testified that the Newmans had his permission to use his driveway and the spur.2 The Newmans testified that, like the previous owners, the Michels did not give them explicit permission to use the driveway and the spur, nor did they ask them to leave or tell them that they were not allowed to use it.

The last member of the Newman family to live on the property, Steve Newman, died in 1973. In 1975, the family home on the Newman property burned down and has not been re-built. Since the mid-1970s, the Newmans' visits to their property have been irregular, around 7 to 14 times a year.

Additionally, over the years, County Road 26 — the original access leading to the Newman land — fell into disrepair. The road became overgrown with trees and brush, and was damaged by flooding from the Mud River, such that it was not accessible by vehicle. It could, however, be traversed on foot to the beginning of the Old Road.

From 1973 until 2003, there was nothing more than minor disagreements between the Newmans and the Michels. Then, in 2003, the Newmans found the Michels' driveway blocked by a locked metal gate. The Newmans also found that Mr. Michel had erected fencing across County Road 26, beyond the end of the Michels' driveway, ostensibly to prevent cattle from coming onto his land. However, at oral argument before this Court, counsel for the Michels stated that the fence across County Road 26 had been removed and is no longer there.

Following this dispute over the locked gate and fence, the Newmans filed this lawsuit to enforce the T.M. Newman easement. A one day bench trial was held in the Circuit Court of Cabell County on June 4, 2007. However, before the bench trial began, the circuit court considered cross-motions for summary judgment on whether the T.M. Newman easement was an easement in gross (that is, it was solely for T.M. Newman's use), or was an easement appurtenant (that is, it was connected to the Newmans' and Michels' properties and bound future owners). The circuit court found that because T.M. Newman never had an ownership interest in the Newman property, the easement could not attach to and run with the land. The circuit court therefore concluded that the T.M. Newman easement was in gross and had expired upon T.M. Newman's death in 1946. The circuit court therefore granted summary judgment to the Michels on this issue.

Following this ruling, the parties proceeded to trial on the sole remaining issue of whether the Newmans had established a prescriptive easement across the...

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11 cases
  • O'dell v. Robert, No. 35488
    • United States
    • West Virginia Supreme Court
    • November 24, 2010 called the dominant estate; the land burdened by an easement is called the servient estate.” Newman v. Michel, 224 W.Va. 735, 740-41, 688 S.E.2d 610, 615-16 (2009).The general rule (with several exceptions not important to the instant case) is that an easement can be created in three way......
  • Rupli v. South Mountain Heritage Soc'y, Inc.
    • United States
    • Court of Special Appeals of Maryland
    • December 22, 2011
    ...terminates with the conveyance of the servient estate, licensee cannot claim use thereafter is inherently adverse); Newman v. Michel, 224 W.Va. 735, 688 S.E.2d 610 (2009) (affirming trial court's conclusion that despite the transfer of the servient property, use of land that began with perm......
  • O'dell v. Robert
    • United States
    • West Virginia Supreme Court
    • November 24, 2010 easement is called the dominant estate; the land burdened by an easement is called the servient estate.” Newman v. Michel, 224 W.Va. 735, 740–41, 688 S.E.2d 610, 615–16 (2009). The general rule (with several exceptions not important to the instant case) is that an easement can be created......
  • Cobb v. Daugherty, 35015.
    • United States
    • West Virginia Supreme Court
    • April 19, 2010
    ... ... dominant estate; the land burdened by an easement is called the ... servient estate. ” ... Newman v. Michel, 224 W.Va. 735, 688 S.E.2d 610, 615-16 (2009).         The general rule (with several exceptions not important to the instant ... ...
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