         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                September 2019 Term
                                 _______________                     FILED
                                                                November 19, 2019
                                    No. 18-0411                       released at 3:00 p.m.
                                                                  EDYTHE NASH GAISER, CLERK
                                  _______________                 SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA

                         TEUBERT FAMILY FARMS, LLC,
                                  Petitioner

                                         V.

                   KENNETH J. BRAGG and AIMEE S. BRAGG,
                                Respondents

      ____________________________________________________________

                 Appeal from the Circuit Court of Greenbrier County
                    The Honorable Robert E. Richardson, Judge
                           Civil Action No. 15-C-195(B)

                             REVERSED AND REMANDED

      ____________________________________________________________

                              Submitted: October 1, 2019
                              Filed: November 19, 2019

Thomas W. White, Esq.                      Barry L. Bruce, Esq.
Haley S. Hillen, Esq.                      Barry L. Bruce & Associates, LC
Dinsmore & Shohl LLP                       Lewisburg, West Virginia
Lewisburg, West Virginia                   Counsel for the Respondents
Counsel for the Petitioner


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


              1.      “A circuit court’s entry of summary judgment is reviewed de novo.”

Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).



              2.      “A motion for summary judgment should be granted only when it is

clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed.

Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).



              3.      “The circuit court’s function at the summary judgment stage is not to

weigh the evidence and determine the truth of the matter, but is to determine whether there

is a genuine issue for trial.” Syl. Pt. 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755

(1994).



              4.      “One who seeks to assert title to a tract of land under the doctrine of

adverse possession must prove each of the following elements for the requisite statutory

period: (1) That he has held the tract adversely or hostilely; (2) That the possession has

been actual; (3) That it has been open and notorious (sometimes stated in the cases as

visible and notorious); (4) That possession has been exclusive; (5) That possession has

been continuous; (6) That possession has been under claim of title or color of title.” Syl.




                                               i
Pt. 3 Somon v. Murphy Fabrication and Erection Co., 160 W.Va. 84, 232 S.E.2d 524

(1977).



              5.     “The burden is upon the party who claims title by adverse possession

to prove by clear and convincing evidence all elements essential to such title.” Syl. Pt. 2

Brown v. Gobble, 196 W.Va. 559, 474 S.E.2d 489 (1996).




                                            ii
ARMSTEAD, Justice:

                  Petitioner Teubert Family Farms, LLC, (“Teubert Family Farms”) appeals

the April 19, 2018 order issued by the Circuit Court of Greenbrier County granting

summary judgment to respondents Kenneth J. Bragg and Aimee S. Bragg (the “Braggs”)

on their adverse possession claim as to 9.21 acres (“Disputed Property”). On appeal,

Teubert Family Farms argues that the circuit court erred by finding that the Braggs had met

every element of adverse possession as a matter of law, despite the questions of fact

pertaining to permissive use of the Disputed Property.

                Upon consideration of the parties’ briefs and oral arguments, the submitted

record, and the applicable authorities, this Court finds merit to Teubert Family Farm’s

arguments. Accordingly, the circuit court’s final order is reversed, and this case is

remanded for further proceedings.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

                In 1995, Kenneth J. Bragg purchased approximately seventy-three acres of

real estate in Greenbrier County (“Bragg Property”).1 The Bragg Property adjoined

property owned by the Harris Export Coal Corporation (the “Corporation”), whose

president and sole shareholder was John Brown Harris (“Mr. Harris”). Mr. Bragg did not

commission a survey of his property when it was purchased, but he claims that in 1996,

Mr. Harris told him that the property boundary line was determined by a “little

timberline/big timberline” boundary, which reflected that certain portions of the property


       1
           In 2013, Mr. Bragg conveyed the property to himself and Mrs. Bragg jointly.
                                             1
had been timbered, resulting in a little timberline, while other portions had not. Mr. Bragg

also claims that Mr. Harris actually pointed to the boundary line. However, Mr. Harris

does not recall this conversation.

              Mr. Bragg testified that he posted the Disputed Property in 1996. However,

Mr. Harris does not recall seeing any “No Trespassing” or “No Hunting” signs. Mr. Bragg

further testified that in 1997, he cleared and cultivated the Disputed Property and

constructed ponds on the Disputed Property. At some point, Mr. Bragg asked Mr. Harris

for permission to use his road and to hunt on what is now referred to as the Teubert

Property, which permission Mr. Harris granted.2 In addition to requesting permission for

himself, Mr. Bragg requested permission for some of his friends and family to also hunt

on the Teubert Property, but Mr. Harris refused this request as to everyone other than Mr.

Bragg’s brother.

              On June 11, 2012, Teubert Family Farms purchased 652.69 acres from the

Corporation (“Teubert Property”). The Teubert Property adjoins the Bragg Property, and


       2
         During his deposition, Mr. Bragg initially testified that he requested permission to
use the road over the Harris property around 2000-2001. However, later in his deposition,
Mr. Bragg testified that he requested permission to use the road across Mr. Harris’ property
in the early spring of 1996, and the conversation in which he requested permission to hunt
on the Teubert Property occurred after the conversation regarding the road. In their motion
for summary judgment, the Braggs state that Mr. Bragg misstated the date of permission
during his deposition, and he corrected those statements on an Errata Sheet advising that
the conversation occurred in 2000-2001. Although Mr. Harris mentioned conversations
about the permission he granted to the Braggs in his Affidavit and his deposition, there is
no mention of the dates on which such permission was granted. Mrs. Bragg testified to only
having one conversation with Mr. Harris when she was introduced to him during the time
frame between 1996-2000. However, she was not present for any conversations regarding
the type of permission Mr. Harris granted to use his property.
                                             2
the Disputed Property was included in the metes and bounds description of the Teubert

Property when it was purchased in 2012. At some point after Teubert Family Farms

purchased the Teubert Property, a dispute arose between the parties as to the ownership of

the Disputed Property. Both parties believed that they owned the Disputed Property. In

2013, the Braggs had their property surveyed, and this survey revealed that the Disputed

Property was not included in their 1995 deed description.            In 2014, the Braggs

commissioned another survey of the Disputed Property.

              After obtaining the second survey, the Braggs recorded a general warranty

deed dated October 9, 2015, purporting to convey title of the Disputed Property listing

themselves as both grantor and grantee. On November 16, 2015, Teubert Family Farms

filed its Complaint against the Braggs. The Complaint sought to quiet title, requested

injunctive relief, and alleged slander of title. On December 22, 2015, the Braggs filed their

answer and counterclaim. Both Teubert Family Farms and the Braggs filed motions for

summary judgment. A hearing on the parties’ cross-motions for summary judgment was

held on August 7, 2017. By order entered on April 19, 2018, the circuit court granted

summary judgment to the Braggs. The circuit court found:

              9. While there was permission granted to use the entirety of
              the Teubert Property for a specific purpose (i.e., hunting), the
              Defendants used and occupied the Disputed Property for
              purposes well beyond any for which permission had been
              granted. In posting, clearing, cultivating, seeding, and mowing
              the Disputed Property, and in constructing a pond upon the
              Disputed Property, the Defendants possessed the Disputed
              Property in a manner that was clearly against the right of the
              true owner and inconsistent with the title of the true owner.
              The use of the Disputed Property for these purposes was not

                                             3
              permissive, and such use satisfies the “hostility” element of an
              adverse possession claim to the Disputed Property. The
              permission granted to the Defendants to hunt upon the entirety
              of the Teubert Property does not negate the adverse and hostile
              nature of the Defendants’ use and possession of that portion of
              the Teubert Property included within the Disputed Property.

              12. Based upon the undisputed facts in this action, the
              Defendants satisfied every element required of an adverse
              possession claim, including the ten-year statutory period, no
              later than 2007, while Harris Export Coal Corporation was the
              record owner of the Teubert Property. Title to the Disputed
              Property was therefore vested in the Defendants not later than
              2007, at which time Harris Export Coal Corporation was
              disseized of its title to the same.

This appeal by Teubert Family Farms followed.



                             II. STANDARD OF REVIEW

              On appeal, “[a] circuit court’s entry of summary judgment is reviewed de

novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Pursuant to

Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment should be

awarded “if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” It is well

established that “[a] motion for summary judgment should be granted only when it is clear

that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed.

Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). “The circuit court’s function


                                             4
at the summary judgment stage is not to weigh the evidence and determine the truth of the

matter, but is to determine whether there is a genuine issue for trial.” Syl. Pt. 3, Painter v.

Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

              “[W]e must draw any permissible inference from the underlying facts in the

most favorable light to the party opposing the motion.” Williams v. Precision Coil, Inc.

194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995). In assessing the factual record, we must

grant the nonmoving party the benefit of inferences, as

              “[c]redibility determinations, the weighing of the evidence,
              and the drawing of legitimate inferences from the facts are jury
              functions, not those of a judge … [s]ummary judgment should
              be denied even where there is no dispute as to the evidentiary
              facts in the case but only as to the conclusions to be drawn
              therefrom.”

Id. (internal quotations and citations omitted).

              As this Court has previously noted, “the party opposing summary judgment

must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and

must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s

favor.” Williams v. Precision Coil, 194 W.Va. at 60 459 S.E.2d at 337. We will now

examine whether the circuit court erred in granting summary judgment to the Braggs.

                                      III. ANALYSIS

              This matter involves our law on adverse possession. By way of background,

we note that “[t]he doctrine of adverse possession is firmly established in our property law

and accompanies W.Va. Code 55-2-1 [1923] in settling land disputes equitably and

efficiently.” Naab v. Nolan, 174 W.Va. 390, 392, 327 S.E.2d 151, 153 (1985).

                                              5
                     One who seeks to assert title to a tract of land under the
              doctrine of adverse possession must prove each of the
              following elements for the requisite statutory period: (1) That
              he has held the tract adversely or hostilely; (2) That the
              possession has been actual; (3) That it has been open and
              notorious (sometimes stated in the cases as visible and
              notorious); (4) That possession has been exclusive; (5) That
              possession has been continuous; (6) That possession has been
              under claim of title or color of title.

Syl. Pt. 3, Somon v. Murphy Fabrication and Erection Co., 160 W.Va. 84, 232 S.E.2d 524

(1977)). “The burden is upon the party who claims title by adverse possession to prove by

clear and convincing evidence all elements essential to such title.” Syl. Pt. 2 Brown v.

Gobble, 196 W.Va. 559, 474 S.E.2d 489 (1996). “This doctrine enables one who has been

in possession of a piece of real property for more than ten years to bring an action asserting

that he is now the owner of that piece of property even when title rests in another.” Naab,

174 W.Va. at 392, 327 at 153-154.

              Cross-motions for summary judgment were filed in this case. Teubert

Family Farms argued that the Braggs did not possess the Disputed Property “adversely” or

“hostilely.”3 The Braggs argued that they met all of the elements of adverse possession

because the permission that had been given by Mr. Harris was not for the specific activities

that they performed on the Disputed Property.




       3
         In its motion for summary judgment, Teubert Family Farms also argued that the
Braggs did not have exclusive possession of the Disputed Property. This argument was
not included by Teubert Family Farms in its assignments of error, and thus will not be
addressed.
                                          6
              For the element of “hostile” or “adverse” possession, the party claiming

adverse possession must show that their possession of the property was against the right of

the true owner and was inconsistent with the title of the true owner. “The word ‘hostile’ is

synonymous with the word ‘adverse’ and need not and does not import that the disseisor

must show ill will or malevolence to the true owner.” Somon, 160 W.Va. at 90, 232 S.E.2d

at 528.   This Court has recognized that permission, in the context of both adverse

possession and prescriptive easements, can be express or implied.          See Fantasia v.

Schmuck, 183 W.Va. 361, 395 S.E.2d 784 (1990) and O’Dell v. Stegall, 226 W.Va. 590,

703 S.E.2d 561 (2010). In Fantasia, this Court noted “[I]f the use of the land in dispute is

permissive, the element of hostility or adversity is negated.” 183 W.Va. at 363, 395 S.E.2d

at 786. In the context of prescriptive easements, this Court noted “[p]remission may be

inferred ‘from the neighborly relation of the parties, or from other circumstances.’” O’Dell,

226 W.Va. at 613, 703 S.E.2d at 584 (quoting 4 Powell on Real Estate, § 34.10[2] [a]). In

the context of prescriptive easements, this Court has previously stated:

              Easements by prescription are not favored in the law, because
              they essentially reward a trespasser and allow the taking of
              another’s property without compensation. It this modern age,
              it does little to encourage civility between neighbors to have a
              rule whereby a landowner, who allows his neighbor to use
              some part of his land, runs the risk that the use may
              transmogrify into a legally-binding prescriptive use merely by
              the passage of time. Such a rule, as this case demonstrates,
              encourages expensive litigation between neighbors to either
              obtain some legal injunction to stop the use of the land, or
              obtain a legal ruling definitely establishing an easement.
              Worse, such a rule might impel neighbors to resort to
              aggressive, extra-legal acts in defense of their property.


                                             7
O’Dell, 226 W.Va. at 614-615, 703 S.E.2d at 585-586.

                It is undisputed that Mr. Bragg had been given express permission by Mr.

Harris to perform various activities on the Tuber Property. Mr. Harris admitted to giving

Mr. Bragg permission to use the roads and to hunt on the Tuber Property.4 In addition, Mr.

Harris gave Mr. Bragg permission to install a combination lock for his use on the access

gate to the Tuber Property. Mr. Harris also stated that “Mr. Bragg had permission to use

that portion of the Tuber Property that he now asserts to own via adverse possession.” It

is also undisputed that the Braggs used the Disputed Property for purposes other than those

for which express permission had been given. In granting summary judgment to the

Braggs, the circuit court found that the Braggs posted, cleared, cultivated, seeded and

mowed the Disputed Property, and also constructed ponds on the Disputed Property. The

circuit court found that these additional uses were not permissive and as such, those

additional uses satisfied the “hostility” element of the adverse possession claim. The

circuit court’s order referred to “permission,” but it did not differentiate between express

and implied permission.

                The Braggs filed fourteen affidavits which they argue contradict the affidavit

of Mr. Harris.5 However, the affidavits filed on behalf of the Braggs do not directly address




       4
           These admissions were made in Mr. Harris’ affidavit, which was executed on May
9, 2016.
       5
        Mr. Bragg testified that his attorney prepared the affidavits, and they were
executed at two meetings (one in Bingham and one in Ansted). All of the affidavits contain


                                               8
the issue of permission. Despite the fact that all of the affiants attest to having witnessed

Mr. Bragg performing certain tasks on the Disputed Property such as building a pond6 and

fencing the property, they do not provide any specific information about these tasks. For

example, each of the affiants attest to having witnessed Mr. Bragg “fence the property,”

but it is not clear what is meant by fencing. According to the deposition testimony of Mrs.

Bragg, she believed that her husband fenced the property sometime in the 1990s, and she

thought that the fencing material was wire or rails. She further testified that the purpose of

this fence was to establish a boundary, and she was emphatic in her recollection that the

fence encompassed the ponds. However, according to the deposition testimony of Mr.

Bragg, he did not install any type of fencing (metal or otherwise) until at least 2013.7

Further, at least one affiant attested in one paragraph to witnessing Mr. Bragg maintain

“exclusive control of said property for at least ten years.” However, the same affiant

marked through another paragraph that stated that there is “no question that Mr. Bragg has

had exclusive control over the property for at least ten years prior to June 11, 2012.” The




the same nine numbered paragraphs, and all of the affidavits have the same handwritten
changes to paragraph numbers 5 and 7.
       6
         In paragraph number 5 of the affidavits, the affiants state that they “have known”
that Mr. Bragg built “ponds,” but in the following paragraph most affiants state that they
witnessed Mr. Bragg build “a pond.”
       7
         Mr. Bragg testified that he posted signs in 1996, and he considered the posted signs
a fence.


                                              9
affidavits filed by the Braggs do not provide any information about when or how often

each of the affiants visited the Disputed Property.8

              The circuit court found that the Braggs had satisfied “every element required

of an adverse possession claim, including the ten-year statutory period, no later than 2007.”

This finding implies that the statutory period ran from 1997 – 2007. The circuit court

addressed the issue of permission by noting that the Braggs had been granted permission

to use the entirety of the Tuber Property for hunting, but then found that the Braggs “used

and occupied the Disputed Property for purposes well beyond any for which permission

had been granted.”9

              We find that the circuit court erred by finding no material question of fact

was in dispute as to whether the Braggs satisfied every element required of an adverse

possession claim. Numerous material factual disputes are present in this case, including 1)




       8
          Mrs. Bragg testified that she has not personally visited the Disputed Property since
2009. Many of the affiants are family members of Mrs. Bragg, either by blood or marriage,
including her mother, sister, brother in law, aunt, and uncle, and it is unclear when these
affiants visited the property to witness these acts and obtain the information contained in
their affidavits.
        9
           At least one of the uses that the circuit court relied upon in concluding that the
Braggs had satisfied the “hostility” element of the adverse possession claim remains a
question of fact. The circuit court ruled that the Braggs had posted the Disputed Property,
but the testimony regarding what was meant by “posting” or “fencing” is unclear. As has
previously been noted, Mr. Bragg considered posted signs a fence. None of the Braggs’
affidavits refer to posted signs, but all of the affidavits refer to fencing the property.
Further, Mrs. Bragg testified about fencing, and it was clear that she was referring to the
common use of the word fencing as she thought the fencing was constructed of wire or
rails. Mrs. Bragg did not testify as to whether the Disputed Property had been posted.
Although it may be a typographical error, in their motion for summary judgment, the
Braggs state “It is contradicted that Defendants posted the property from 1996 on.”
                                               10
the type and extent of permission granted to the Braggs to use the entirety of the Tuber

Property versus the Disputed Property, 2) the years that the Braggs used the Disputed

Property, and 3) the types of activities/uses that the Braggs exercised on the Disputed

Property. These disputes must be resolved by a trier of fact.     “In assessing the factual

record, we must grant the nonmoving party the benefit of inferences, as ‘credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge.’” Williams v. Precision Coil, Inc.,

194 W.Va. at 59, 459 S.E.2d at 336 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at

255, 106 Sc.D. at 2513). Such factual determinations are material to the determination as

to whether the Braggs’ use of the Disputed Property was adverse or hostile, an essential

element of a claim of adverse possession. Accordingly, summary judgment was not

appropriate in this case.



                                   IV. CONCLUSION

               For the reasons stated above, we reverse the circuit court’s order granting

summary judgment to the Braggs and remand this matter to the circuit court for further

proceedings.

                                                                 Reversed and Remanded.




                                            11
