Veach v. Day

• Decision Date: 30 June 1983
• Docket Number: Nos. 15325,15359,s. 15325
• Citation: 304 S.E.2d 860,172 W.Va. 276
• Parties: Ernest L. VEACH, et al. v. George H. DAY, Sr., et al. Ernest L. VEACH, et al. v. George H. DAY, Sr., et al.
• Court: West Virginia Supreme Court

Page 860

304 S.E.2d 860

172 W.Va. 276

Ernest L. VEACH, et al. v. George H. DAY, Sr., et al.

Ernest L. VEACH, et al. v. George H. DAY, Sr., et al.

Nos. 15325, 15359.

Supreme Court of Appeals of West Virginia.

June 30, 1983.

Syllabus by the Court

1. "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 pt. 1, Town of Paden City v. Felton, 136 W.Va. 127, 66 S.E.2d 280 (1951).

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." Syllabus pt. 8, Sanders v. Roselawn Memorial Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968).

Harry R. McCulloh, Petersburg, for appellants in no. 15325.

Duke A. McDaniel, Petersburg, for appellants in no. 15359.

Duke A. McDaniel, Petersburg, for appellees in no. 15325.

Harry R. McCulloh, Petersburg, for appellees in no. 15359.

PER CURIAM:

In this proceeding we have consolidated the cross appeals of the parties to a property dispute which was litigated in the Circuit Court of Grant County. The circuit court ruled that Ernest L. Veach and Alice Veach, the plaintiffs below, were the owners of 8.7 acres the title to which was in dispute. The court also ruled that the defendants below, the Days, had a prescriptive right-of-way across the tract. On appeal the Veaches contend that the court erred in finding that the Days had a right-of-way. The Days, in their appeal, claim that the court erred in finding that the Veaches owned the tract in dispute. We find that the trial court erred in concluding that the Days had a prescriptive easement across the tract in dispute, and we affirm the court's decision on ownership of the tract.

The Veaches and the Days owned contiguous tracts of land. Their parcels had a common source of title, a deed dated March 13, 1891, by which Walter G. Williams and Robert R. Williams partitioned a larger tract of property. The dispute involved in the proceeding now before us arose when the Veaches and the Days were unable to agree upon the location of one of the lines involved in the 1891 partition. The Veaches instituted the proceeding by filing a complaint in the Circuit Court of Grant County on June 9, 1978. The Days filed an answer and a counterclaim. In their counterclaim the Days prayed that the court find that they had a right-of-way by use and prescription over the 8.7 acre tract if the court found that the Veaches owned the tract.

The question of the easement was tried along with the question of ownership of the parcel in dispute. At the conclusion of the trial the circuit court ruled that the Veaches owned the parcel in dispute and that the Days had a right-of-way over it.

On appeal the Veaches make a number of assignments of error relative to the court's finding that the Days had an easement across the tract in dispute. In addition to claiming that the evidence did not support the establishment of a right-of-way by prescription, they argue that the trial court committed a number of procedural errors.

The evidence adduced by the Veaches regarding the right-of-way consisted of the testimony of two witnesses, Robert Day and George Day. Robert testified that there was a road over the tract in dispute. He said: "[W]hen it was first put in, we used it to work on the mountain, taking timber off, and, in recent years, I've used it in the spring to go up and mushroom hunt. I've used it in the fall to hunt--well, every year." He also indicated that he had taken a truck, tractors, and bulldozers up the hill. He testified that he was born in 1927, that he had served in World War II for about eighteen months and that since 1957 he had lived in Charleston and Shepherdstown. He indicated that he went mushroom hunting once or twice a year, and during deer season he went up the road two or three times each year. George Day's testimony was similar. ¹

In syllabus point 1 of Town of Paden City v. Felton, 136 W.Va. 127, 66 S.E.2d 280 (1951) we stated the test for determining when a prescriptive easement is established:

"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."

See, also, Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976); State ex rel. Riddle v. Department of Highways, 154 W.Va. 722, 179 S.E.2d 10 (1971). We also stated in syllabus point 1 of Berkeley Development Corp. v. Hutzler supra:

"The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing proof."

While we are aware of no West Virginia case which discusses what constitutes "continued" or "continuous" use such as to give rise to a prescriptive easement, a number of jurisdictions have held that the "continuous" requirement involves something more than mere infrequent or sporadic use of a road. See, Turner v. Anderson, 130 Colo. 275, 274 P.2d 972 (1954); Trexler v. Lutz, 180 Pa.Super. 24, 118 A.2d 210 (1955). See, Stupnicki v. Southern New York Fish & Game Ass'n., 41 Misc.2d 266, 244 N.Y.S.2d 558 (1962); Uliasz v. Gillette, 357 Mass. 96, 256 N.E.2d 290 (1970); and Fannin v. Somervell County, 450 S.W.2d 933 (Tex.Civ.App.1970); 25 Am.Jur.2d Easements and Licenses § 56 (1966); 4 Tiffany, Real Property § 1202 (1975).

The Fannin case illustrates the thinking of the courts on the question of what constitutes "continuous" use sufficient to give rise to a prescriptive easement. In that case the Texas court said that where people occasionally used a private parcel along a river for picknicking and camping and for getting to and from the river for swimming and fishing, the use was not sufficiently "continuous" to support a prescriptive easement. In the Stupnicki case the New York Court said that occasional or sporadic use of an abandoned road over an owner's land by an adjoining owner's predecessors in title by walking over the road on an occasional errand and by use of the road by hunters would not be sufficient to support a finding of a prescriptive right.

There is a similarity between the elements which must be shown to establish a prescriptive easement and those necessary for adverse possession. See, syllabus point 3 of Somon v. Murphy Fabrication & Erection Co., 160 W.Va. 84, 232 S.E.2d 524 (1977). ²

In several adverse possession cases we have recognized that an occasional or sporadic adverse use does not constitute "continuous" use. We stated in syllabus point 8 of Westover Volunteer Fire Dept. v. Barker, 142 W.Va. 404, 95 S.E.2d 807 (1957) that:

"Occasional and sporadic acts of dominion tending to show possession of land, which are not continuous for the statutory period, do not constitute adverse possession as is contemplated by law."

We have held that mere occasional grazing of cattle or cutting of timber or of sod on land does not constitute possession sufficient to give rise to adverse possession. Wade v. McDougle, 59 W.Va. 113, 52 S.E. 1026 (1906). See, Eagle Land Co. v. Ferrell, 97 W.Va....