          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                  January 2015 Term                     FILED
                                  _______________                 February 26, 2015
                                                                     released at 3:00 p.m.

                                                                   RORY L. PERRY II, CLERK

                                                                 SUPREME COURT OF APPEALS

                                    No. 14-0219                       OF WEST VIRGINIA

                                  _______________


                       DANIEL ALLEN WEATHERHOLT AND

                         ANITA DENICE WEATHERHOLT,

                           Defendants Below, Petitioners


                                          v.

                           JEFFREY NEAL WEATHERHOLT,

                               Plaintiff Below, Respondent


       ____________________________________________________________

                     Appeal from the Circuit Court of Hardy County

                         Honorable H. Charles Carl, III, Judge

                               Civil Action No. 13-C-52


                                AFFIRMED

       ____________________________________________________________


                              Submitted: January 27, 2015

                               Filed: February 26, 2015



Jason R. Sites, Esq.                           J. David Judy, III, Esq.
Sites Law Firm, PLLC                           Judy & Judy
Keyser, West Virginia                          Moorefield, West Virginia
Attorney for Petitioners                       Attorney for Respondent



JUSTICE BENJAMIN delivered the Opinion of the Court.
                                SYLLABUS BY THE COURT



               1.     “Unless an absolute right to injunctive relief is conferred by statute,

the power to grant or refuse or to modify, continue, or dissolve a temporary or a

permanent injunction, whether preventive or mandatory in character, ordinarily rests in

the sound discretion of the trial court, according to the facts and the circumstances of the

particular case; and its action in the exercise of its discretion will not be disturbed on

appeal in the absence of a clear showing of an abuse of such discretion.” Syl. pt. 11,

Stuart v. Realty Corp., 141 W. Va. 627, 92 S.E.2d 891 (1956).



               2.     “In reviewing challenges to findings and rulings made by a circuit

court . . . we review the circuit court’s underlying factual findings under a clearly

erroneous standard. Questions of law are subject to a de novo review.” Syl. pt. 3, in part,

State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).



               3.     “A court of equity has jurisdiction, by injunction, to prevent a

continuing material interference with an easement.” Syl. pt. 4, Johnson v. Gould, 60 W.

Va. 84, 53 S.E. 798 (1906).



               4.     “Since equitable issues are generally determined by a court without a

jury, one is not entitled, as a matter of right under the law, to a jury trial of such issues. . .




                                                i
.” Syl. pt. 1, in part, Human Rights Comm’n v. Tenpin Lounge, 158 W. Va. 349, 211

S.E.2d 349 (1974).



              5.     “Where already, at the time of the adoption of the Constitution,

equity exercised jurisdiction in a certain matter, the provision of the Constitution

guaranteeing trial by jury does not relate to or give right to trial by jury in suits in quity

involving such matter.” Syl. pt. 7, Davis v. Settle, 43 W. Va. 17, 26 S.E. 557 (1896).



              6.     “A person claiming a prescriptive easement must prove each of the

following 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.” Syl. pt. 1, O’Dell v. Stegall, 226 W. Va.

590, 703 S.E.2d 561 (2010).


              7.     “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


                                              ii
use by resorting to the law.” Syl. pt. 5, O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561


(2010).





                                            iii

Benjamin, Justice:


                 Petitioners Daniel and Anita Weatherholt appeal the January 15, 2014,

order of the Circuit Court of Hardy County that granted injunctive relief to the plaintiff

below and respondent herein, Jeffrey Weatherholt. The order prohibited the petitioners

from placing any obstructions in the respondent’s right-of-way and concluded that the

current location of the respondent’s water line is an appurtenant prescriptive easement

through the petitioners’ property. For the reasons set forth below, we affirm the circuit

court’s order.


                 I.    FACTUAL AND PROCEDURAL BACKGROUND

                 The petitioners, Daniel Weatherholt and his wife Denice Weatherholt, are

the owners of a tract of real estate on which they reside in Hardy County which is located

just off of a public road known as Frosty Hollow Road. The petitioners acquired this land

in 2001 from Daniel Weatherholt’s grandmother, Ruth Barr. Daniel Weatherholt’s

parents, Otis and Bette Weatherholt, live on a tract of real estate beside the petitioners.

Daniel Weatherholt’s brother, Respondent Jeffrey Weatherholt, lives on real estate

located on the other side of Otis and Bette Weatherholt.


                 The parties stipulated that a 20-foot wide right-of-way exists from Frosty

Hollow Road, across the petitioners’ property, across the property of Otis and Bette

Weatherholt, to the respondent’s property. The parties also stipulated that a 12-foot wide

utility easement was deeded to the respondent and exists on the east side of the 20-foot


                                              1

wide right-of-way.1 The parties generally have agreed that the 20-foot wide right-of-way

is ten feet from either side of the centerline of the existing paved roadway that runs from

Frosty Hollow road to the respondent’s property.2 The paved roadway is about 12 feet

wide which means that approximately four feet on either side of the paved roadway is

within the 20-foot wide right-of-way.


              In July 2013, Respondent Jeffrey Weatherholt filed a complaint against

Petitioners Daniel and Denice Weatherholt in the Circuit Court of Hardy County in which

he alleged that

              [t]he [petitioners] have cause [sic] to be constructed certain
              impediments and obstructions within the right of way and on
              the paved roadway which provides deeded access to the
              property of your [respondent], including having nailed
              wooden boards into the pavement as purported speed barriers;
              constructing buildings which have doors that open on the
              access right of way of the [respondent]; leaving childrens’
              toys within the right of way; constructing a flower garden and
              rock garden within the right of way; placing wooden barriers
              and firewood within the right of way; digging holes in the dirt
              along the edge of the roadway; and parking equipment in the
              right of way, all intentionally calculated to interfere with the
              open access granted to your [respondent] for access to his real
              estate as noted within his Deed.



       1
         Respondent Jeffrey Weatherholt acquired his property by deed from his
grandmother, Ruth Barr, in 1998. The deed expressly grants to the respondent a 20-foot
wide right-of-way, running from Frosty Hollow Road to the respondent’s property, and a
12-foot utility easement.
       2
         The parties do not agree that the right-of-way is ten feet from the center line of
the paved roadway at the entrance to the petitioners’ property from Frosty Hollow Road
and in the area of a rock garden placed by the petitioners near their home. These
disagreements, however, are not pertinent to this appeal.
                                             2

                      Your [respondent] has approached the [petitioners] on
              numerous occasions in an effort to have the obstructions and
              restrictions in and on the roadway and rights of way removed
              to allow free and open access contemplated within the Deed
              of the [respondent]. The [petitioners] have refused to remove
              the barriers placed within the right of way, including refusing
              to remove the two (2) wooden “speed bumps” which have
              nails protruding within the paved roadway. . .

The respondent sought a permanent injunction against the placement of impediments in

the right-of-way.


              In their answer to the complaint, the petitioners included a counterclaim in

which they alleged the following: the respondent had caused or permitted to be

constructed a water line serving the respondent’s residence that crosses the petitioners’

property; the location of the water line is not within the utility easement owned by the

respondent; the impermissible placement of the water line constitutes a trespass; and as a

result of the trespass, the respondents have suffered injury in the loss of value to their

property and nuisance.


              The circuit court originally granted a temporary injunction against the

petitioners regarding impediments in the respondents’ right-of-way. Subsequently, after a

bench trial, the circuit court entered a January 15, 2014, judgment order. Regarding the

20-foot wide right-of-way, the circuit court found as follows:

              [T]he [petitioners] have constructed, caused, allowed and
              permitted to be placed and remain, as constant obstructions
              within the bounds of the twenty feet (20′) wide access right of
              way, certain obstructions and hazards, including but not
              limited to boards with nails protruding to serve as “speed
              bumps” and children’s toys and equipment.

                                             3

                     The [petitioners] further constructed and/or placed two
              wooden out-buildings along the west side of the access right
              of way. Although not constructed within the bounds of the
              twenty feet (20′) wide easement, the doors of the buildings do
              open into the bounds of the right of way, the doors swing
              open into the access right of way, and persons utilizing the
              two buildings must stand within the bounds of the right of
              way to gain entry and exit into the buildings.
                     The Court further finds that all of the obstructions and
              hazards as described . . . above, with the exception of the
              wooden speed bumps, have been and are “habitual” in
              occurrence and nature. Although not making the driveway
              completely impassable, the obstructions are so close to the
              twelve feet (12′) wide paved roadway so as to have made
              passage inconvenient and at times unsafe for both [respondent
              and petitioners] (citations to record omitted).

Accordingly, the circuit court permanently enjoined the petitioners from placing any

impediments or obstructions within the entirety of the 20-foot right-of-way.


              Regarding the placement of the respondent’s water line across the

petitioners’ property, the circuit court found as follows:

              [T]he [respondent] has proven by clear and convincing
              evidence that he has a prescriptive easement with regard to
              the water line. [Respondent] testified that the water line was
              placed in 1998 or 1999. Otis Weatherholt [Petitioner Daniel
              Weatherholt’s and Respondent Jeffrey Weatherholt’s father]
              testified that he assisted and participated in the construction
              of the water line and [Petitioner] Daniel Weatherholt testified
              that he knew of the existence of the water line in its current
              location prior to constructing his home in 2001. The Court
              finds there was no evidence of permission having been asked
              or received by the [respondent] from Ruth M. Barr, the owner
              of the property prior to [petitioners], with regard to the
              location of the water line. In fact, [respondent] testified that
              he had the water line installed before he told his grandmother
              about it and that he never asked her for permission to put the
              water line in its current location.


                                              4

              Finally, the circuit court found that despite the fact that the petitioners had

actual notice of the water line from 2001 through the date of the filing of their

counterclaim in 2013, they made no objection to the water line’s location but rather

acquiesced to its location. Accordingly, the court concluded that the respondent has a

prescriptive easement appurtenant to his real estate for the location of the water line.




                            II.    STANDARD OF REVIEW

              The petitioners challenge the circuit court’s grant of an injunction in favor

of the respondent and the circuit court’s finding that the location of the respondent’s

water line through the petitioners’ property constitutes a prescriptive easement.

Regarding our standard of reviewing the grant of a permanent injunction, this Court has

held:

                     Unless an absolute right to injunctive relief is
              conferred by statute, the power to grant or refuse or to
              modify, continue, or dissolve a temporary or a permanent
              injunction, whether preventive or mandatory in character,
              ordinarily rests in the sound discretion of the trial court,
              according to the facts and the circumstances of the particular
              case; and its action in the exercise of its discretion will not be
              disturbed on appeal in the absence of a clear showing of an
              abuse of such discretion.

Syl. pt. 11, Stuart v. Realty Corp., 141 W. Va. 627, 92 S.E.2d 891 (1956). Further, “[i]n

reviewing challenges to findings and rulings made by a circuit court . . . we review the

circuit court’s underlying factual findings under a clearly erroneous standard. Questions

of law are subject to a de novo review.” Syl. pt. 3, in part, State v. Vance, 207 W. Va.


                                              5

640, 535 S.E.2d 484 (2000). With these standards to guide us, we now consider the

petitioners’ assignments of error.



                                     III.   DISCUSSION

                                      A. Jury Trial Issue

              In their first assignment of error, the petitioners argue that the circuit court

erred in denying their timely request for a jury trial.



              The record indicates that in their answer the petitioners requested a jury on

both the respondent’s request for a permanent injunction and on the petitioner’s

counterclaim for trespass and nuisance arising from the placement of the respondent’s

water line. In a pre-trial hearing, the circuit court informed the petitioners that they were

not entitled to a jury trial on these issues. However, immediately before the start of the

bench trial, the circuit court revisited the jury trial issue and indicated that the petitioners

were entitled to a jury trial on their counterclaim. The court further indicated that the

petitioners could have a jury trial on their counterclaim separately from the trial on the

respondent’s request for a permanent injunction or they could proceed to have both

matters decided that day in a bench trial. Counsel for the petitioners indicated that “we’re

prepared to submit all claims to the Court in a trial before the Court today. . . . This case,

far more than most litigation, has been very emotionally taxing on the family and it needs

to be resolved.” Accordingly, both matters, the permanent injunction and the

counterclaim, were heard and decided in a bench trial.

                                               6

              In the petitioners’ first argument on the jury trial issue, they aver that the

circuit court erred in denying them a jury trial on the permanent injunction issue. The

petitioners are incorrect. Generally, there is no right to a jury trial in a proceeding in

which a permanent injunction is sought. This is because at common law, a proceeding in

which a permanent injunction was sought was heard in a court of equity, and there is no

right to a jury trial in a matter traditionally heard at equity. It has long been the law of this

State that “[a] court of equity has jurisdiction, by injunction, to prevent a continuing

material interference with an easement.” Syl. pt. 4, Johnson v. Gould, 60 W. Va. 84, 53

S.E. 798 (1906). Further, “[s]ince equitable issues are generally determined by a court

without a jury, one is not entitled, as a matter of right under the law, to a jury trial of such

issues. . . .” Syl. pt. 1, in part, Human Rights Comm’n v. Tenpin Lounge, 158 W. Va. 349,

211 S.E.2d 349 (1974). In addition, this Court has indicated that “[w]here already, at the

time of the adoption of the Constitution, equity exercised jurisdiction in a certain matter,

the provision of the Constitution guarantying trial by jury does not relate to or give right

to trial by jury in suits in equity involving such matter.” Syl. pt. 7, Davis v. Settle, 43 W.

Va. 17, 26 S.E. 557 (1896); see also Bishop Coal Co. v. Salyers, 181 W. Va. 71, 77, 380

S.E.2d 238, 244 (1989) (“Suits in equity were tried without juries.”); Marthens v. B & O

Railroad Co., 170 W. Va. 33, 38 n. 2, 289 S.E.2d 706, 712 n. 2 (1982) (“[T]hose issues

heretofore decided in equity should today be tried to the judge alone.”). Finally, as noted

above, “the power to grant or refuse . . . a permanent injunction . . . ordinarily rests in the

sound discretion of the trial court [not a jury], according to the facts and the

circumstances of the particular case. . . .” Syl. pt. 11, Stuart, 141 W. Va. 627, 92 S.E.2d

                                               7

891. Therefore, we conclude that the circuit court did not err in denying the petitioners a

jury trial on the respondent’s suit for a permanent injunction.



              Regarding the petitioners’ request for a jury trial on their counterclaim for

trespass and nuisance, the petitioners concede that they waived their right to a jury trial

but they assert that the waiver is invalid because it was made under duress. This Court

finds no merit to this assertion because the petitioners have presented no evidence

whatsoever of duress that would invalidate a waiver of the right to a jury trial.3 Therefore,

we reject the petitioners’ argument that they were wrongfully denied a trial on their

counterclaim for trespass and nuisance.



                     B. Propriety of Granting Permanent Injunction

              The second assignment of error raised by the petitioners is that the circuit

court erred in granting a permanent injunction to the respondent that enjoins the

petitioners from placing any obstructions within the respondent’s 20-foot wide right-of­

       3
         The petitioners also assert as part of this assignment of error that the complaint
and counterclaim were so closely joined that it was compulsory that they be tried
together. In addition, they complain that Respondent Jeffrey Weatherholt is a law clerk to
another judge in the same circuit as the judge who presided in the instant case. We
decline to address these arguments because they constitute nothing more than
unsupported assertions. “Typically, this Court will not address issues that have not been
properly briefed.” State v. White, 228 W. Va. 530, 541 n. 9, 722 S.E.2d 566, 577 n. 9
(2011). Indeed, we have reiterated that “casual mention of an issue in a brief is cursory
treatment insufficient to preserve the issue on appeal.” State v. Lilly, 194 W. Va. 595, 605
n. 16, 461 S.E.2d 101, 111 n. 16 (1995) (internal quotations and citation omitted).
Finally, we have indicated that “a skeletal argument, really nothing more than an
assertion, does not preserve a claim.” State Dep’t. v. Robert Morris N., 195 W. Va. 759,
765, 466 S.E.2d 827, 833 (1995) (internal quotations and citations omitted).
                                             8

way. Specifically, the petitioners challenge the circuit court’s finding that the location of

children’s toys and the open doors of outbuildings into the easement were “habitual.” The

petitioners further dispute the circuit court’s finding that the toys located in the unpaved

portion of the right-of-way were inconvenient and unsafe. According to the petitioners,

the toys and outbuilding doors did not constitute obstructions because they were not

within the 12-foot paved portion of the easement in which the respondent traveled.



                We find no merit to this assignment of error. It is undisputed that the 20­

foot right-of-way expressly was conveyed to the respondent by deed. In addition, the

parties generally agreed that the 20-foot right-of-way is located ten feet from either side

of the centerline of the paved portion of the right-of-way.4 The respondent presented

testimony that the petitioners erected outbuildings at the edge of the unpaved portion of

the right-of-way, and that when the outbuilding doors are open they obstruct a portion of

the unpaved portion of the right-of-way. The respondent also testified that specific toys

were placed in the unpaved portion of the right-of-way and that these toys remained in

the right-of-way for a period of months. Finally, the respondent presented several

photographs in support of his testimony. In light of this evidence, we find no error in the

circuit court’s finding that the outbuilding doors and toys constituted a continuing

material interference with the respondent’s use of the right-of-way. Although these

obstructions were not placed within the paved portion of the right-of-way, the petitioner

expressly was granted a right-of-way 20 feet in width, and he has the right to the

       4
           See supra n. 2.
                                              9

convenient use of the entire width of the right-of-way. Accordingly, we conclude that the

circuit court did not abuse its discretion in granting the respondent a permanent

injunction enjoining the petitioners from placing any obstructions within the respondent’s

right-of-way.



                As part of this assignment of error, the petitioners also challenge the denial

of their request that permanent speed bumps be placed on the respondent’s right-of-way.

The circuit court found in regard to this issue:

                The primary complaint of [petitioners] and Otis and Bette
                Weatherholt were for the potential safety of the [Petitioners’]
                children, ages 15, 11, and 7, while playing in and alongside
                the roadway. However, no evidence was offered at trial that
                demonstrated that any of [petitioners’] children were ever in
                danger by anyone traveling on the right of way, and the
                concerns expressed were general in nature. . . . No accidents
                or injuries have resulted from this use of the right of way.

The petitioners fail to cite to any evidence in the record that contradicts the circuit court’s

findings on this issue. Therefore, we find no error in the circuit court’s findings.5



                  C. Respondent’s Water Line As A Prescriptive Easement



       5
         In addition, the petitioners set forth the following contentions in support of this
assignment of error: the respondent should have pled his action as a nuisance action; the
circuit court erred in failing to balance the rights of both parties; the circuit court erred in
failing to require the respondent to post a bond prior to the court’s granting of a
temporary injunction; and the respondent failed to show that the petitioners’ actions
resulted in irreparable harm to the respondent. Again, these contentions amount to
nothing more than unsupported assertions that this Court declines to address. See supra n.
3.
                                              10

              In their final assignment of error, the petitioners challenge the circuit

court’s finding that the respondent’s placement of his waterline across the petitioners’

property constitutes a prescriptive easement.



              At the time of the placement of the respondent’s waterline, the petitioners’

property belonged to Ruth Barr, the grandmother of Daniel and Jeffrey Weatherholt. The

respondent testified below that the water line was not placed in the 12-foot utility because

rocks within the utility easement made it too difficult to dig the necessary trench there.

As a result, the respondent had to locate the water line elsewhere through Ms. Barr’s

property. The respondent testified further on direct examination as follows:

              Q. Did anyone object at that time?

              A. No.

              Q. Did your grandmother object at that time?

              A. No.

              Q. Was she aware of where [the water line] was put?

              A. I asked her – I didn’t ask her. I mean, I said, “Grandma,
              we had to run the water line down through the woods.” And –
              or she said – I said, “We needed to run it down through the
              woods.”
                     And she said, “Well, why did you need to do that?” I
              said, “Well --” I said, “It was hard to dig it there,” as I recall,
              and she said okay. I mean, she was very easygoing. I mean,
              you know, Grandma didn’t – it didn’t matter to grandma.

              Q. So there was no objection?

              A. No.


                                              11

              Q. You did not go to her before you did it and asked
              permission?

              A. No, sir. I don’t recall doing that.



              Evidence adduced at trial indicates that the petitioners subsequently

acquired the property from Ms. Barr. The petitioners learned of the waterline’s location

in 2001 when they began construction of their home, and they did not challenge the

placement of the waterline until 2013 when they filed their counterclaim to the

respondent’s suit for an injunction.



              The circuit court found, in pertinent part, as follows on the issue of the

prescriptive easement:

                      From the testimony and evidence at trial, the Court
              finds that the [respondent’s] water line was constructed in
              1998 or 1999 with the knowledge and assistance of Otis
              Weatherholt, through what was then property owned by Ruth
              M. Barr, to the home of [respondent]. Based upon the
              uncontroverted testimony of the [respondent], the Court finds
              that he did not obtain the permission of the grandmother,
              Ruth M. Barr, prior to constructing the water line outside his
              confines of his twelve feet (12′) wide utility easement, that he
              built the water line in its current location with the knowledge
              and even assistance of his father, Otis Weatherholt, and that a
              friend of his father’s [sic] installed the line in its current
              location after having trouble digging the line within the
              twelve feet (12′) wide utility easement.

                     After installing the water line outside the confines of
              the utility easement, [respondent] informed the owner, Ruth
              M. Barr, of the location of the water line and she did not
              object or take any subsequent action so long as she owned the


                                             12
              property to have [respondent] remove or relocate the water
              line.

                      Ruth M. Barr subsequently sold her real estate,
              through which the [respondent’s] water line was constructed,
              to [petitioners] by deed dated March 30, 2001. [Petitioner]
              Daniel Weatherholt’s testimony confirmed that he was aware
              of the location of the water line, as it crossed through and
              under his real estate, during the construction of his home in
              2001. The Court finds that Otis Weatherholt and the
              [Petitioner] Daniel Weatherholt had knowledge of the exact
              location of the water line as it crossed the real estate then
              owned by Ruth M. Barr.

                            ....

                     The [petitioners] had actual knowledge of the
              existence and exact location of the [respondent’s] water line
              prior to constructing their home in 2001, a period of more
              than ten years, prior to objecting to it by the filing of their
              counterclaim in this action on August 8, 2013. . . . [Petitioner]
              Daniel Weatherholt . . . testified that although he was aware
              of the existence and location of the water line and access road
              easements, he was unaware of the deeded location of the
              twelve feet (12′) wide utility easement. . . .

                      The Court finds that the [petitioners] took no adverse
              action and made no objection as to the location of the water
              line from the fall of 2001 until the filing of the Counter Claim
              in this action by Certificate dated August 5, 2013, a period of
              more than ten years. The Court further finds that the
              [petitioners] acquiesced to the location of the water line for a
              period exceeding ten years.



              The petitioners argue that the circuit court erred in finding that the location

of the respondent’s water line through the petitioners’ property constitutes a prescriptive

easement. The crux of the petitioners’ argument is that the respondent’s placement of the

water line outside of his utility easement was not an adverse use of Ruth Barr’s property

                                             13

because Ms. Barr granted implied permission to the location of the water line after she

was informed of its location by the respondent.



                  This issue is governed by this Court’s definitive opinion on prescriptive

easements, O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561 (2010). In syllabus point 1

of O’Dell, this Court held:

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

At issue in the instant case is the first element: the adverse use of another’s land.

Regarding this element, this Court explained in O’Dell that

                         [i]n 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.

Syl. pt. 5, Id.



                  When we apply our law in O’Dell to the instant facts, we find no error in

the circuit court’s determination that the respondent’s placement of his water line outside

                                                14

of the utility easement constituted an adverse use of the petitioners’ property. Contrary to

the petitioners’ contention, the evidence clearly indicates that the respondent did not ask

permission of Ms. Barr, the owner of the property, to place the water line outside of the

utility easement. Instead, the respondent placed the water line outside of the utility

easement and thereafter informed Ms. Barr of the location of the water line. As we held

in syllabus point 5 of O’Dell, “[a]n ‘adverse use’ is one that creates a cause of action by

the owner against the person claiming the prescriptive easement.” In the instant case, the

respondent’s placement of the water line through Ms. Barr’s property outside of the

utility easement without first seeking Ms. Barr’s permission created a cause of action by

Ms. Barr against the respondent for trespass. Therefore, the respondent’s placement of

the water line outside of the utility easement without first seeking Ms. Barr’s permission

meets the definition of “adverse use” set forth by this Court in O’Dell.



              The petitioners’ argument that implied permission means the same as

acquiescence must fail when applied to the facts of this case. It is significant that there is

no evidence that Ms. Barr had knowledge of the water line until after it was installed

outside of the utility easement. If Ms. Barr knowingly had acquiesced to the placement of

the water line outside of the utility easement prior to its placement, her acquiescence

could be construed as implied permission. Instead, she acquiesced to the placement of the

water line after learning that the water line already had been placed outside of the utility

easement. The fact that Ms. Barr acquiesced to the placement of the water line after it

was installed is actually proof of one of the elements of a prescriptive easement.

                                             15

Specifically, element three requires a person claiming a prescriptive easement to prove

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.” Syl. pt. 1, in

part, id (emphasis added). In other words, a person claiming a prescriptive easement must

prove that the owner of the land had knowledge of the adverse use and acquiesced to the

adverse use for the requisite number of years. In the present case, the evidence shows that

Ms. Barr had actual knowledge of the location of the water line outside of the utility

easement, and she acquiesced to the location. Therefore, we find that the circuit court did

not err in ruling that the respondent proved by clear and convincing evidence that his

placement of the water line outside of the utility easement constituted an adverse use of

the petitioners’ land.6



                                  IV. CONCLUSION

              For the reasons stated above, we find no error in the January 15, 2014,

order of the Circuit Court of Hardy County that granted injunctive relief to the respondent

prohibiting the petitioners from placing any obstructions in the respondent’s easement

and concluding that the current location of the respondent’s water line is an appurtenant

prescriptive easement through the petitioners’ property. Accordingly, the January 15,

2014, order of the Circuit Court of Hardy County is affirmed.

                                                                                Affirmed.

       6
         Finally, it is undisputed that Petitioner Daniel Weatherholt, after acquiring the
property from Ms. Barr, had knowledge of the location of the water line in 2001 and did
not contest the location until 2013.
                                            16

