           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                September 2013 Term
                                                                FILED
                                                            November 6, 2013
                                                               released at 3:00 p.m.
                                     No. 12-0042               RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA




                DOUGLAS W. WILSON, II, AND JOELLEN WILSON,
                         Petitioners Below, Petitioners

                                          v.

                    JOHNNY L. STAATS AND LORI A. STAATS,
                         Respondents Below, Respondents



                    Appeal from the Circuit Court of Jackson County
                      The Honorable Thomas C. Evans, III, Judge
                               Civil Action No. 09-C-5

                                     AFFIRMED


                              Submitted October 15, 2013
                               Filed: November 6, 2013


Lee F. Benford, II, Esq.                             Leah R. Chappell, Esq.
Ripley, West Virginia                                Adams, Fisher & Chappell, PLLC
Counsel for Petitioners                              Ripley, West Virginia
                                                     Counsel for Respondents




The Opinion of the Court was delivered PER CURIAM.
                               SYLLABUS BY THE COURT



              1. “This Court reviews the circuit court’s final order and ultimate disposition

under an abuse of discretion standard. We review challenges to findings of fact under a

clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess

v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).



              2. “There are two forms of implied easements: an easement implied by

necessity (which in West Virginia is called a ‘way of necessity’), and an easement implied

by a prior use of the land (also called an easement implied from a ‘quasi-easement’).” Syl.

Pt. 3, Cobb v. Daugherty, 225 W.Va. 435, 693 S.E.2d 800 (2010).



              3. “To establish an easement implied by necessity (which in West Virginia is

called a “way of necessity”), a party must prove four elements: (1) prior common ownership

of the dominant and servient estates; (2) severance (that is, a conveyance of the dominant

and/or servient estates to another); (3) at the time of the severance, the easement was strictly

necessary for the benefit of either the parcel transferred or the parcel retained; and (4) a

continuing necessity for an easement.” Syl. Pt. 4, Cobb v. Daugherty, 225 W.Va. 435, 693

S.E.2d 800 (2010).



                                               i
             4. “‘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).” Syl. Pt. 2, Cobb v.

Daugherty, 225 W.Va. 435, 693 S.E.2d 800 (2010).



             5. “‘The law does not favor the creation of easements by implied grant or

reservation.’ Syllabus point 1, Stuart v. Lake Washington Realty, 141 W.Va. 627, 92 S.E.2d

891 (1956).” Syl. Pt. 1, Cobb v. Daugherty, 225 W.Va. 435, 693 S.E.2d 800 (2010).




                                            ii
Per Curiam:



              This is an appeal by Douglas W. Wilson, II, and Joellen Wilson (hereinafter

“the petitioners”) from an order of the Circuit Court of Jackson County, West Virginia,

denying the petitioners’ request for injunctive relief. The petitioners contend that the circuit

court erred in failing to find an express or implied easement across the property of Johnny

L. Staats and Lori A. Staats (hereinafter “the respondents”). Based on the parties’ briefs, the

appendix record designated for our consideration, and the pertinent authorities, we affirm the

rulings made by the lower court.



                              I. Factual and Procedural History

              The petitioners and the respondents own adjoining parcels of property in

Sandyville, Jackson County, West Virginia. These properties were originally derived from

the same parent tract but were divided into individual parcels prior to the time the

respondents and the petitioners purchased their separate properties. Both parcels are subject

to separate gas leases executed in 1990 between the parties’ predecessors in title and Peake

Energy, as lessee. The leasehold properties were also unitized to form a drilling unit in 1990.

The respondents purchased their property in 1997, and the petitioners purchased their

property in 1998.




                                               1
              A producing gas well, identified as PKE Well No. 752, was thereafter drilled

on a property adjoining the respondents’ property, the owners of which are not parties to this

action.1 In 2000, the petitioners and the respondents learned of their entitlement to free gas

for residential use from PKE Well No. 752. In order to access this gas, the petitioners

obtained permission from the respondents to install a gas line across the respondents’

property. The parties signed June 27, 2000, and July 11, 2000, written agreements providing

that the respondents would allow the petitioners to install the pipeline across the respondents’

property with the understanding that no “binding Right of Way” would be created across the

respondents’ property and that the line would be “moved in the event of any building

purposes in the future.”



              The petitioners installed the gas line and used it to obtain free gas until 2008.

By letter dated December 12, 2008, the respondents demanded that the petitioners remove

the gas line from the respondents’ property no later than January 30, 2009.2 In response, the

petitioners refused to remove the gas line and filed a civil action seeking temporary and




       1
        The property on which the gas well is located adjoins the respondents’ land but not
the petitioners’ land.
       2
        The respondents apparently plan to build a new residence on their property, and they
contend that the gas line must be removed to accommodate either the new residence itself or
the driveway to the residence.


                                               2
permanent injunctive relief which would permit the petitioners to maintain the gas line until

the well was plugged and abandoned.



              A temporary injunction was granted, and the case proceeded to bench trial in

the circuit court on May 19, 2011. By order dated September 6, 2011, the circuit court found

that permission to cross the respondents’ property had been properly withdrawn and that the

petitioners had no easement or continuing right to cross the respondents’ property. The

circuit court consequently ordered the petitioners to remove the gas line. The petitioners’

motion for new trial and to amend judgment was denied by order entered December 9, 2011,

and the petitioners now appeal to this Court.



                                     II. Standard of Review

              This Court’s standard for reviewing the circuit court’s order is as follows:

“This Court reviews the circuit court’s final order and ultimate disposition under an abuse

of discretion standard. We review challenges to findings of fact under a clearly erroneous

standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196

W.Va. 178, 469 S.E.2d 114 (1996). With that standard as guidance, this Court addresses the

petitioners’ assignments of error.




                                                3
                                       III. Discussion

              The petitioners assign the following errors: (1) the lower court erred in failing

to find that the petitioners had a leasehold easement of necessity as a result of the subject

parcels being derived from the same parent tract of real estate and being a part of a unitized

drilling unit pursuant to the subsisting oil and gas leases; and (2) the lower court erred in

failing to find that the petitioners had an implied leasehold easement as a result of the same

circumstances.



              This Court clarified the law on implied easements in the recent opinion of

Cobb v. Daugherty, 225 W.Va. 435, 693 S.E.2d 800 (2010).3 In Cobb, this Court addressed

an argument by property owners that they had an easement by implication over another

property owner’s land. This Court found that no easement existed in that case and explained



       3
       In Cobb, this Court directed attention to a comprehensive article explaining the law
of easements.

              A lawyer desiring to understand the complicated law of
              easements in West Virginia should start by reading a recent
              article by Dean John W. Fisher, II, “A Survey of the Law of
              Easements in West Virginia,” 112 W.Va.L.Rev. 637 (2010).
              This article untangles the loosely written and confusing
              decisions of this Court of the late 1800s and early 1900s,
              decisions which sought to reach equitable results in fact-specific
              cases.

225 W.Va. at 441, 693 S.E.2d at 806.



                                              4
in syllabus point three that “[t]here are two forms of implied easements: an easement implied

by necessity (which in West Virginia is called a ‘way of necessity’), and an easement implied

by a prior use of the land (also called an easement implied from a ‘quasi-easement’).” Id. at

438, 693 S.E.2d at 803. As we emphasized in Cobb, “[b]oth types of implied easements arise

from some necessity created at the time of the division of an original tract of land into two

or more parcels.” Id. at 442, 693 S.E.2d at 807.



              This Court articulated the requirements for an easement by necessity in syllabus

point four of Cobb, as follows:

                     To establish an easement implied by necessity (which in
              West Virginia is called a “way of necessity”), a party must prove
              four elements: (1) prior common ownership of the dominant and
              servient estates; (2) severance (that is, a conveyance of the
              dominant and/or servient estates to another); (3) at the time of
              the severance, the easement was strictly necessary for the benefit
              of either the parcel transferred or the parcel retained; and (4) a
              continuing necessity for an easement.

Id. at 438, 693 S.E.2d at 803. In addressing allegations of the existence of an easement, this

Court also explained that “[t]he burden of proving an easement rests on the party claiming

such right and must be established by clear and convincing proof.” Id. at syl. pt. 2.



              In their first assignment of error, the petitioners in the present case assert that

the lower court should have ruled that an easement by necessity exists. As the respondents

properly contend, however, the petitioners’ argument fails on prongs three and four of the

                                               5
requirements articulated in syllabus point four of Cobb. The evidence of record clearly

indicates that although there was prior common ownership of both properties before the

parties purchased the properties, “at the time of the severance,” an easement was not “strictly

necessary for the benefit of either” parcel, and there is no continuing necessity for an

easement. Id. at 438, 693 S.E.2d at 803, syl. pt. 4. At the time of the severance, the

unitization agreement and the producing gas well did not exist, and there was consequently

no need for an easement. An implied easement by necessity cannot be found under such

circumstances.



              In their second assignment of error, the petitioners assert that an implied

easement exists based upon the unitized gas lease and the petitioners’ receipt of free gas from

the neighboring gas well. The petitioners have not cited any legal authority for that

proposition, and their attorney conceded during oral argument that no such authority had

been located. The lower court found, and the petitioners do not refute, that the leases in

question do not expressly or impliedly grant any lessor an interest in the lands of the lessor’s

neighbors or an easement for passage across the lands of neighbors. The lower court found

that the leases are silent on the issue of how each lessor may potentially transport gas from

the well head to a lessor’s dwelling. Thus, the circuit court properly found that no implied

easement exists.




                                               6
              Based upon this Court’s review, we find that the circumstances of this case,

undisputed by the parties, compel only one possible conclusion. The petitioners’ only legal

right to cross the respondents’ property derived from the written agreement between the

petitioners and respondents to permit the petitioners to place a gas line across the

respondents’ property. Such permission was subsequently revoked by the respondents in a

manner contemplated by the written agreement. As the circuit court found, the existence of

that permission, later withdrawn, can by no means be construed as an easement and must be

characterized as a license.4 The circuit court premised its determination upon well-

established principles distinguishing between an easement and a license, as adeptly explained

by this Court in Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454 (1948), as follows:

                     Though the distinction between an easement and a
              license may, in a particular instance, be difficult to determine
              and has given rise to many conflicting decisions involving that
              question, the essential characteristics of the two are materially
              different. An easement creates an interest in land; a license does
              not, but is a mere permission or personal and revocable privilege
              which does not give the licensee any estate in the land.

Id. at 395, 47 S.E.2d at 456 (citations omitted).



              As this Court articulated in syllabus point one of Cobb, “‘[t]he law does not

favor the creation of easements by implied grant or reservation.’ Syllabus point 1, Stuart v.

       4
        The circuit court held as follows: “The gas line laid across the Respondents’ property
by the Petitioners, with the Respondents’ express permission, with no consideration paid by
the Petitioners and with no writing granting the Petitioners any interest in the Respondents’
lands, constitutes a license, not an easement, and may be revoked by the Respondents.”

                                              7
Lake Washington Realty, 141 W.Va. 627, 92 S.E.2d 891 (1956).” 225 W.Va. at 438, 693

S.E.2d at 803, syl. pt. 1. “Courts must be very careful before decreeing upon one man’s land

in favor of another without compensation such an encumbrance as a way, permanently

impairing that man’s dominion and ownership, which next to life and liberty, is the most

valuable of rights inhering in the citizen.” Id. at 442, 693 S.E.2d at 807 (citations omitted).



              In the present case, this Court discerns neither evidence nor legal authority

supporting the petitioners’ claim that they have any easement, express or implied, across the

respondents’ property. The petitioners’ license to cross the respondents’ property was

properly terminated by the respondents.



                                       IV. Conclusion

              For the reasons stated above, this Court affirms the orders of the Circuit Court

of Jackson County entered September 6, 2011, and December 9, 2011, finding that the

petitioners are not entitled to any easement across the respondents’ property and requiring

removal of the gas line from the respondents’ property.




                                                                                    Affirmed.




                                              8
