                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



Robert Knight and Jane Knight,                                                     FILED
Dorothy Lilly, Roscoe Knight and Edna Knight,                                    September 3, 2013
Roger D. Knight, and/or successor                                             RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
Roger L. Knight, and Hazel Knight Spencer,                                      OF WEST VIRGINIA
Plaintiffs Below, Petitioners

vs) No. 12-1159 (Monroe County 09-C-86)

Ronald J. Hubbard Jr. and Rebecca Lynn Hubbard,
Defendants Below, Respondents

                                 MEMORANDUM DECISION

        Petitioners’ appeal, filed by counsel Christine B. Stump, arises from the Circuit Court of
Monroe County, which denied petitioners’ petition to remove cloud on title and their complaint
for declaratory judgment, by order entered on August 23, 2012. Respondents, by counsel Phillip
B. Ball, filed a response in support of the circuit court’s order. Petitioners argue that the circuit
court erred in denying petitioners’ request to eject respondents from the subject property.

       This 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. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Petitioners Robert Knight, Dorothy Lilly, Roscoe Knight, Roger D. Knight, and Hazel
Knight Spencer are siblings and share the subject property as tenants in common. Petitioner Jane
Knight is married to Petitioner Robert Knight, Petitioner Edna Knight is married to Petitioner
Roscoe Knight, and Petitioner Roger L. Knight is Petitioner Roger D. Knight’s son.1 Petitioners
acquired the sixty-five-acre subject property from Petitioner Dorothy Lilly and another sibling,
Mary Knight.2 In 1977, petitioners’ parents (or, in Petitioner Roger L. Knight’s case,
grandparents), Alfred and Vertie Knight, conveyed one-half undivided interest of the subject
property to Dorothy and Dorothy’s husband and the other one-half undivided interest to Mary
and Mary’s husband, each couple becoming joint tenants with right of survivorship and not as
tenants in common. In 1980, Dorothy, Mary, and their spouses conveyed their interests among

       1
        Petitioner Roger L. Knight has been named in this case because his father Roger D.
Knight conveyed his interest in the subject property to him.
       2
       We note that not all of the individuals who encompass the shares of the subject property
were made a party in this action.


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themselves, their six siblings, and their siblings’ spouses as joint tenants with right of
survivorship and not as tenants in common, conveying each couple a one-eighth undivided
interest.

        In 2003, one of Dorothy and Mary’s siblings, William Knight, conveyed his share of the
property to respondents, and, as a result, petitioners and respondents became tenants in common.
In November of 2009, petitioners initiated the case, contending that respondents’ use of the
property was unlawful. Petitioners brought this action in circuit court to seek removal of
respondents from the property, and for a declaration that respondents’ use of the property for
their home was unlawful and unreasonable. Following a bench trial in September of 2010, the
circuit court found that respondents’ use of the property was not unlawful and that petitioners
were not entitled to damages. Petitioners’ appeal of this order followed.

          Because the decision on appeal arises from a bench trial, we use the following standard of
review:

          “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 Natl. Bank in Fairmont, 198 W.Va. 329, 480
          S.E.2d 538 (1996).

Syl. Pt. 1, McConaha v. Rust, 219 W.Va. 112, 632 S.E.2d 52 (2006). In reviewing the record
below, we bear in mind the following: “If the action be by one or more tenants in common, or
joint tenants, or coparceners, against their cotenants, the plaintiff shall be bound to prove actual
ouster or some other act amounting to a total denial of the plaintiff's right as cotenant.” W.Va.
Code § 55-4-15.

        In asserting that the circuit court erred when it did not eject respondents from the subject
property, petitioners raise three arguments. Petitioners first argue that the circuit court erred
when it held that respondents used the property through acceptable actions available to all
tenants in common. Conversely, petitioners assert that they proved that respondents were
declaring exclusive ownership and occupancy of a specific tract within the property to the
exclusion of the co-tenants and without the permission of the co-tenants. Petitioners challenge
respondents’ acquisition of the property from William Knight, raising that one co-tenant did not
have the right to convey to a third person any specific or distinct portion of the common estate,
citing Mauzy v. Nelson, 147 W.Va. 764, 768, 131 S.E.2d 389, 392 (1963). Petitioners assert that
although William Knight conveyed his undivided interest to respondents, he was not devising a
particular plot from the entire property.

       Upon our review of the record, we find no abuse of discretion by the circuit court. The
argument under which petitioners sought to eject respondents from the property lacks merit.
Although respondents have occupied a specific portion of the property, petitioners have failed to
prove that respondents ousted petitioners from the property or that respondents have denied


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petitioners total access to the subject property. Of the petitioners who testified, two live in Ohio
and very rarely visit the property. A petitioner who lives next to the subject property testified that
he has never asked respondents to leave. Another petitioner further testified that his reasons for
not visiting the property anymore were based on him not feeling “comfortable going on the
property” but did not provide specific deterrents that kept him from visiting or using the land.
This same petitioner also testified that, although on one visit there was a backhoe along the
roadway, there was still access to the top of the property by other means.

        Next, petitioners argue that the circuit court erred in holding that respondents’ actions did
not render petitioners’ property interest unmarketable when petitioners proved that the entirety of
the property was reduced by respondents’ claim to exclusive ownership of a portion of the
property. Petitioners assert that respondents ousted petitioners from the property by placing a
barn and home on the property, along with “no trespassing” signs. Accordingly, petitioners argue
that respondents have rendered the land unmarketable.

        We find no abuse of discretion by the circuit court in this regard. Petitioners argue that
they met their burden of proof pursuant to West Virginia Code § 55-4-15, i.e. by proving ouster
or total denial of rights as co-tenants. From our review of the record, however, petitioners did not
meet this burden. Petitioners provided no evidence of any diminished value of the property, nor
did they prove a total denial of their rights as co-tenants or ouster by respondents. As we
discussed above, petitioners have failed to prove total denial of their rights as co-tenants. The
record also provides no indication that petitioners succeeded in proving that ouster occurred.3 For
instance, one of the respondents testified that she posted one of the “no trespassing” signs, but
that one of the petitioners posted the others. She further testified that none of the petitioners had
ever expressed any desire to share respondents’ barn.

        Lastly, petitioners argue that the circuit court erred in upholding the concept of unilateral
partition in a tenancy in common. Petitioners reiterate that respondents did not have the authority
to carve out a tract from the whole parcel. Petitioners highlight that the common property cannot
be partitioned by fragments and that they have an absolute right to enter and occupy every
portion of the common estate.

        Our review of the record supports our finding that the circuit court committed no abuse of
discretion in this matter. The circuit court made findings that respondents never made threats to
petitioners, nor did respondents ever prevent petitioners from accessing the subject property.
       3
           We have described ouster as follows:

       An actual ouster of one tenant in common cannot be presumed, except where the
       possession has become tortious and wrongful by the disloyal acts of the co-tenant,
       which must be open, continued and notorious, so as to preclude all doubt of the
       character of his holding or the want of knowledge thereof by his co-tenant. This
       conduct must amount to a clear, positive and continued disclaimer and disavowal
       of his co-tenant's title, and an assertion of an adverse right; and a knowledge of
       this must be brought home to his co-tenant.

Syl. Pt. 1, Boggess v. Meredith, 16 W.Va. 1, 1879 WL 2970 (1879).

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Further, none of the parties made prior requests for another party to cease any activity on the
property. Evidence admitted at the bench trial supports these findings. Having reviewed the
circuit court’s “Final Order,” entered on August 23, 2012, we hereby adopt and incorporate the
circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this
appeal. The Clerk is directed to attach a copy of the circuit court’s final order to this
memorandum decision.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.

ISSUED: September 3, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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