                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Larry and Deborah Daughters,                                                       FILED
                                                                                   July 8, 2013
Defendants Below, Petitioners                                                RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs.) No. 12-0841 (Morgan County 11-C-26)

Susan Rickard,

Plaintiff Below, Respondent



                               MEMORANDUM DECISION

         Petitioners Larry and Deborah Daughters, pro se, appeal a final order of the Circuit Court
of Morgan County, entered June 22, 2012, finding that respondent had a prescriptive easement
over their property for the limited purpose of ingress and egress. Respondent Susan Rickard, pro
se, filed a summary response.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. For the reasons expressed below, the decision is reversed and this case is
remanded for entry of judgment in petitioners’ favor. In so holding, this Court finds that this case
does not present a new or significant question of law. For these reasons, a memorandum decision is
appropriate under Rule 21 of the Rules of Appellate Procedure.

        Petitioners own two acres of land in the Sleepy Creek District of Morgan County, West
Virginia. Petitioners’ property is bordered on the east by River Road. To the south and west, there
is property owned by Ronald L. Clingerman. To the north, Petitioners’ property is bordered by a
forty-foot wide right of way (“Road A”), respondent’s use of which is not in dispute. Road A runs
from River Road to respondent’s property.

        In November of 2010, petitioners and Mr. Clingerman engaged in a property exchange
where they exchanged .3 acres on their southern border for .3 acres on their western border. The
property exchange was made subject to the Road A right of way which forms the northern border
of the .3 acres petitioners obtained on the western edge of their property.

        Road B, a dirt road, connects at two different points with Road A to form a loop. Most of
Road B remains on Mr. Clingerman’s property. However, on the portion of land Mr. Clingerman
exchanged with petitioners, they have now blocked respondent’s use of Road B with trees and
stumps. While respondent can access her property by Road A alone, it is easier for her to make her
ingress and egress via Road B during wintertime because Road A has a steep incline.
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       On March 21, 2011, respondent sued petitioners in circuit court to have them unblock Road
B and make the road passable for her as it was previous to their property exchange with Mr.
Clingerman. The matter came on for a bench trial on June 22, 2012.

       Respondent cross-examined Mr. Clingerman who was a witness for petitioners:

               Q.     Okay, Mr. Clingerman, why do you state that it is your road?

               A.     Because it actually does come across my property.

               Q.     But who put the road in there?

               A.        [Respondent’s predecessor-in-title] Leon Householder put
               the road down across the piece of ground that I purchased and he
               said at the time do you give her permission to go across[—]this will
               be your piece of property[—]and I said yes, but I also said if I ever
               sell it it’ll be left up to whoever purchases it whether they want to –

               Q.     You never told me that –

               A.     No.

               Q.      – never consulted me when you traded the property about the
               right-of-way and that right-of-way has there for more than ten years
               and you had no problems with me using it, correct?

               A.     No, you’ve always had permission to go across.

                                         *       *       *

               Q.      And it has been a right-of-way for more than 20 years,
               correct?

               A.     I’ve given you permission as the landowner.

       In a final order entered June 22, 2012, the circuit court found that Mr. Clingerman was “the
previous land owner,” but determined that “[he] never brought an action to prevent [respondent’s]
movement upon the [Road B].” The circuit court never addressed whether Mr. Clingerman granted
respondent permission to use Road B.

        The circuit court found that respondent had a prescribed easement over petitioners’
property for the limited purpose of ingress and egress. The circuit court ordered petitioners to
remove the stumps blocking Road B and return the road to its previous condition within thirty days
of its order. The circuit court clarified, however, that respondent would be responsible for Road
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B’s maintenance.

       We apply the standard for reviewing a judgment entered following a bench trial:

               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 a de novo
               review.

Syl. Pt. 1, Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538
(1996).

        On appeal, petitioners assert that all use of Road B had been with Mr. Clingerman’s
permission and that respondent’s use of the road did not become adverse until they became the
owners, a period of only two years. Respondent argues that the circuit court did not err in finding
that she has a prescriptive easement over petitioners’ property for the limited purpose of ingress
and egress. Respondent notes, inter alia, that “Mr. Clingerman stated in Court that he never had a
problem with me using [Road B] all the time he owned that 0.30 acres.”

        In O'Dell v. Stegall, 226 W.Va. 590, 703 S.E.2d 561 (2010), this Court clarified the law
regarding prescriptive easements and adopted the fundamental policy that “easements by
prescription are absolutely not to be favored.” 226 W.Va. at 599, 703 S.E.2d at 570. In Syllabus
Point 1, we explained as follows:

               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.

In Syllabus Point 6, we further held that “[i]n 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.”

       The circuit court found that Mr. Clingerman was the owner of the .3 acre tract at issue
before he transferred it to petitioners in the property exchange. On cross-examination, Mr.
Clingerman indicated that there had been a right of way for over twenty years, but that he had
given respondent permission to go across Road B. Mr. Clingerman’s trial testimony was
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unrefuted.

       Because the permission respondent had to use Road B—granted by Mr. Clingerman—was
not repudiated until after petitioners became the owners, respondent’s period of use during Mr.
Clingerman’s ownership cannot be counted towards the requisite ten-year prescriptive period.
Therefore, respondent cannot prove that her use of Road B was adverse for the statutorily-required
period by clear and convincing evidence. See Syl. Pt. 2, O’Dell, (“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.”) (quoting Syl. Pt. 2, Beckley
National Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935)).

        An abuse of discretion can be found when a relevant factor that should have been given
significant weight is not considered. See Banker v. Banker, 196 W.Va. 535, 548, 474 S.E.2d 465,
478 (1996). In the case at bar, the circuit court never addressed whether Mr. Clingerman, when he
was the landowner, granted respondent permission to use Road B, as Mr. Clingerman testified he
did. Therefore, after careful consideration, this Court concludes that the circuit court abused its
discretion in finding that respondent had a prescriptive easement over petitioners’ property.

       For the foregoing reasons, we reverse the decision of the Circuit Court of Morgan County
and remand this case for entry of judgment in petitioners’ favor.

                                                         Reversed and Remanded with Directions.

ISSUED: July 8, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Menis E. Ketchum




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