        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               September 2013 Term
                                 _______________                    FILED
                                                               October 3, 2013
                                  No. 12-0227                    released at 3:00 p.m.
                                _______________                RORY L. PERRY II, CLERK

                                                             SUPREME COURT OF APPEALS

                                                                  OF WEST VIRGINIA

                             DAVID A. WALLACE,

                           Respondent Below, Petitioner


                                        v.

                 JOAN PACK, DARLO PACK, DELLO PACK,

              DON PACK, DELSO PACK, AND MINNIE HARRIS,

                        Petitioners Below, Respondents

       ____________________________________________________________

                Appeal from the Circuit Court of Summers County

                       The Honorable Robert Irons, Judge

                            Civil Action No. 99-C-19


                               AFFIRMED

   __________________________________________________________________

                          Submitted: September 10, 2013

                             Filed: October 3, 2013



William S. Winfrey, II, Esq.             E. Kent Hellems, Esq.
Princeton, West Virginia                 Hinton, West Virginia
Attorney for Petitioner                  Attorney for Respondents



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




              1.     “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).



              2.     “The deference accorded to a circuit court sitting as factfinder may

evaporate if upon review of its findings the appellate court determines that: (1) a relevant

factor that should have been given significant weight is not considered; (2) all proper

factors and, and no improper factors, are considered, but the circuit court in weighing

those factors commits an error of judgment.” or (3) the circuit court failed to exercise any

discretion at all in issuing its decision.” Syl. pt. 1, Brown v. Gobble, 196 W. Va. 559, 474

S.E.2d 489 (1996).



              3.     “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 Co., 160 W. Va. 84, 232 S.E.2d 524 (1977).



                                             i
              4.     “Actual, open, notorious, exclusive and continuous adverse

possession of land for more than ten years, confers good legal title, enabling the owner to

maintain an action for unlawful entry and detainer against one who enters unlawfully.”

Syl. pt. 2, Harman v. Alt, 69 W. Va. 287, 71 S.E. 709 (1911).



              5.     “In the law of adverse possession, continuous possession means

possession which has not been abandoned by him who claims such possession and

uninterrupted possession means possession which has not been effectually broken by the

possession of another person.” Syl. pt. 6, in part, State v. Davis, 140 W. Va. 153, 83

S.E.2d 114 (1954).




                                            ii
Per Curiam:


                In this case, Petitioner David A. Wallace appeals the January 20, 2012

order of the Circuit Court of Summers County that ruled after a bench trial that

Respondents Joan Pack, Darlo Pack, Dello Pack, Don Pack, Delso Pack, and Minnie

Harris acquired a 28-acre tract of land through adverse possession. This Court finds no

error below, and we affirm the circuit court’s order.



                                          I. FACTS

                The Respondents, who are all siblings, sought to prove adverse possession

of an approximately 28 acre1 tract of land (“the disputed tract”) in Summers County

against Petitioner David A. Wallace.2 In support of their claim, the respondents presented

evidence in the bench trial below that they were children of Ralph Pack who originally

purchased a large tract of land including the land at issue, and that the respondents grew

up on this land in the years between 1926, when Ralph Pack purchased the land, and

1957, when the Pack family moved off of the land.3 It is undisputed that the Pack


       1
           To be exact, the disputed tract of land consisted of 27.682 acres.
       2
        The circuit court found in its order that both the Pack tract and the Wallace tract
have a common source of title, and this finding is not challenged in this appeal.
       3
        The parties agree that the respondents claim under their parents by inheritance,
and tacking is not disputed. See syl. pt. 5, State v. Davis, 140 W. Va. 153, 83 S.E.2d 114
(1954) (“In fixing the duration of possession, a person has the right to tack to his
possession the possession of those under whom he claims.”).



                                               1

family’s home was not on the disputed property but on land adjacent to the disputed

property. The respondents testified at the trial below of various uses that their family

made of the disputed property between 1926 and 1957. The disputed land was

characterized as part flat and part hillside with portions of the hillside being very steep.



              In its order which ruled that the respondents proved adverse possession of

the land in question, the circuit court made the following findings:

                      During the time [between 1926 and 1957] Ralph Pack
              and his family lived there they made their living from this
              land. It was a subsistence lifestyle; they enclosed portions of
              the land in question with fences, they had livestock on the
              property (including horses, cattle, hogs, sheep), they grew
              crops, (which included sorghum for molasses, corn, green
              beans), they had fruit trees, they picked berries on the
              property, they cut firewood (for heat and cooking), they cut
              posts and other timber, they operated a small sawmill known
              as a wedge mill, they cut timber from the property and
              produced wedges which they sold to the mines.4 Basically
              they made their living from this property, producing pretty
              much everything that they used, (except salt and soda, which
              they purchased) from the property for the period of 1926
              through 1956 or 1957.

                                         *    *    *   *

                       No one objected or raised any objection or claim to the
              property or interfered with the Pack family’s occupancy of
              the entire property in any way during that period.
              . . . . Since that time [1957], the Pack family has moved away
              from the property. They have not lived on the property, but
              they’ve gone back to the property on a routine basis

       4
         According to testimony at trial, the wedge machine or wedge mill cut timber into
slats of a certain size, and these slats were used in coal mines to secure the tops of posts
against the mine ceiling.

                                              2

              throughout the years since then. They have hunted on the
              property, that they’ve cut some timber products on the
              property, they have cut their own firewood on it from time to
              time. Although they no longer lived there, they still utilized
              the property, including using it for camping, for family
              gatherings, and other purposes that are consistent with a non­
              resident landowner. The Pack family never abandoned the
              property or moved away from it or took any action that would
              [be] inconsistent with the activities of an owner of the
              property.

(Footnote added.)



              The circuit court further found that the respondents’ testimony regarding

the uses that the Pack family made of the land between 1926 and 1957 was credible and

largely unchallenged. In addition, the circuit court found that the boundary line

established by the respondents’ expert’s map between the parties’ respective properties

constituted the common boundary line. The circuit court concluded that to the extent that

the respondents did not have superior record title, they established title to the property by

their occupancy and use of it from 1926 through 1957. Specifically, the circuit court

found that the uses of the property to which the respondents testified, including farming,

cutting fire wood, hunting, timbering, and wedge cutting, were open, notorious, under

color of title, hostile and existed for a period in excess of 10 years.



                              II. STANDARD OF REVIEW

              The primary issue in this case is whether there was insufficient evidence

below to support the circuit court’s finding of adverse possession. In Brown v. Gobble,


                                               3

196 W. Va. 559, 474 S.E.2d 489 (1996), this Court set forth in a very thorough manner

the standard of our review in an adverse possession case in which the finder of fact is the

circuit court. We held in syllabus point 2 of Brown that “[t]he burden is upon the party

who claims title by adverse possession to prove by clear and convincing evidence all

elements essential to such title.” Regarding appellate review in an adverse possession

case, we explained

              that the standard of review for judging a sufficiency of
              evidence claim is not appellant friendly. Following a bench
              trial, the circuit court’s findings, based on oral or
              documentary evidence, shall not be overturned unless clearly
              erroneous, and due regard shall be given to the opportunity of
              the circuit judge to evaluate the credibility of the witnesses.
              W. Va.R.Civ.P 52(a). Under this standard, if the circuit
              court’s account of the evidence is plausible in light of the
              record viewed in its entirety, we may not reverse it, even
              though convinced that had we been sitting as the trier of fact,
              we would have weighed the evidence differently. We will
              disturb only those factual findings that strike us wrong with
              the “force of a five-week-old, unrefrigerated dead fish.”
              United States v. Markling, 7 F.3d 1309, 1319 (7th Cir.1993),
              cert. denied, [514] U.S. [1010], 115 S.Ct. 1327, 131 L.Ed.2d
              206 (1995). Nor is the scope of our review broadened because
              the burden of proof is clear and convincing. Indeed, the
              burden of proof has an impact only if the evidence is in
              equipoise. See Director, OWCP, Dept. of Labor v. Greenwich
              Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221
              (1994).

Brown, 196 W. Va. at 563, 474 S.E.2d at 493. Nevertheless,

                      [t]he deference accorded to a circuit court sitting as
              factfinder may evaporate if upon review of its findings the
              appellate court determines that: (1) a relevant factor that
              should have been given significant weight is not considered;
              (2) all proper factors, and no improper factors, are considered,
              but the circuit court in weighing those factors commits an


                                             4
                   error of judgment; or (3) the circuit court failed to exercise
                   any discretion at all in issuing its decision.

Syl. pt. 1, Id.5



                                        III. DISCUSSION

                                  A. Sufficiency of the Evidence

                   We begin our discussion by setting forth the well-established elements of

adverse possession:

                          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 Co., 160 W. Va. 84, 232 S.E.2d 524 (1977).

This Court also has held that “[a]ctual, open, notorious, exclusive and continuous adverse

possession of land for more than ten years, confers good legal title, enabling the owner to

maintain an action for unlawful entry and detainer against one who enters unlawfully.”

Syl. pt. 2, Harman v. Alt, 69 W. Va. 287, 71 S.E. 709 (1911).




        5
          Because this Court does not address the merits of the petitioner’s second
assignment of error for the reasons explained below, we do not find it necessary to set
forth our standard for reviewing the second assignment of error.

                                                 5

                The petitioner, in his first assignment of error, asserts that the circuit court

was clearly wrong in finding that the Pack family’s acts constituted adverse possession of

the land at issue. According to the petitioner, there was insufficient evidence adduced at

trial to show that the Pack family’s possession of the disputed tract between 1926 and

1957 was continuous, open, and notorious in light of the fact that the disputed land

consisted largely of wild lands. Essentially, the petitioner argues that it is undisputed that

the land in question remained wild and uncultivated during the entire time that the

respondents’ family lived on the land. The petitioner indicates that the only evidence of

the respondents’ visible possession of the disputed land is the testimony that the disputed

land was hunted by family and friends two times a year for many years, that the Pack

family cut firewood for heating and cooking on the disputed land, that Ralph Pack placed

his wedge machine on one portion of the land for 1 ½ to 2 years for the purposes of

making wedges to sell to coal mines, and the Pack family used a flat portion of the land

for picnics. The petitioner concludes that this evidence is insufficient to assert dominion

and control over the wild lands at issue and indicates instead only occasional and

sporadic use.



                In support of this contention, the petitioner cites this Court’s opinion in

Dustin v. Miller, 180 W. Va. 186, 375 S.E.2d 818 (1988), in which the Court explained

that one seeking to prove adverse possession must show that the adverse possession has

been continued, consecutive and unbroken for the statutory period. Specifically, one must

show that “unless the adverse claimant is so in possession of the land that he may at any

                                                6

time be sued as trespasser the statute will not run in his favor; and although he may have

taken actual possession, if he does not continue there so that he may be sued at any time

as a trespasser during the prescriptive bar, he cannot rely on the statute of limitations.”

Dustin, 180 W. Va. at 190, 375 S.E.2d at 822, quoting Core v. Faupel, 24 W. Va. 238,

246–47 (1884). The petitioner also cites the Virginia case of Craig-Giles Iron Co. v.

Wickline, 126 Va. 223, 101 S.E. 225 (1919), for the proposition that one cannot prove

adverse possession of wild lands that remain completely in a state of nature, but must

show some change in the condition of the land. The petitioner posits that the only time

that the respondents could have been sued as trespassers was during the arguably 2-year

period when the wedge machine was placed on a portion of the disputed property.



              This Court rejects the petitioner’s assertion of insufficient evidence to

support the circuit court’s order. We have explained that “[i]n the law of adverse

possession, continuous possession means possession which has not been abandoned by

him who claims such possession and uninterrupted possession means possession which

has not been effectually broken by the possession of another person.” Syl. pt. 6, in part,

State v. Davis, 140 W. Va. 153, 83 S.E.2d 114 (1954). We have further explained that

“[f]or ‘actual’ possession, there must be an exercising of dominion over the property and

the quality of the acts of dominion are governed by the location, condition and reasonable

uses which can be made of the property.” Somon, 160 W. Va. at 90, 232 S.E.2d at 528

(citations omitted). Finally, “[f]or possession to be open and notorious, it is generally

meant that the acts asserting dominion over the property must be of such quality to put a

                                            7

person of ordinary prudence on notice of the fact that the disseisor is claiming the land as

his own.” Id., 232 S.E.2d at 528 (citations omitted).



              Our review of the respondents’ trial testimony indicates that from 1926

until 1957, the Pack family made many uses of portions of the disputed land including

enclosing portions of the land with fences, keeping livestock, placing a wedge mill in

various locations, picking berries, picnicking, hunting, and cutting timber both to make

wedges and for firewood. Also, there is no evidence that the Pack family abandoned the

disputed land in the period from 1926 to 1957, or that the Pack family’s possession was

effectually broken by the possession of another person. In addition, the respondents

presented undisputed testimony that they made every reasonable use of the disputed land

in view of its condition and nature. Finally, it is significant to this Court that the circuit

court below actually viewed the property at issue and was able to consider the testimony

and exhibits at trial in the light of its first-hand knowledge of the property.



              In sum, we find the circuit court’s extensive account of the evidence

plausible in light of our review of the record. Therefore, this Court is unable to conclude

that the circuit court clearly erred in finding that the respondents established that their

uses of the property were continuous, open, and notorious.6


       6
       The petitioner also asserts error in the circuit court’s exclusion of the testimony
of David Huffman, a licensed land surveyor. The respondents originally retained Mr.
Huffman as their expert surveyor but subsequently decided not to use him as a witness at
                                                                           (continued . . .)
                                               8

                                   IV. CONCLUSION

              For the reasons stated above, this Court rejects the petitioner’s complained

of errors. Accordingly, we affirm the January 20, 2012, order of the Circuit Court of

Summers County that ruled that the respondents acquired the subject 28-tract of land

through adverse possession.

                                                                                 Affirmed.




trial. The petitioner then determined to call Mr. Huffman as his witness. However, the
circuit court granted the respondent’s motion to exclude Mr. Huffman’s testimony based
on the circuit court’s finding that the respondents had established a confidential
relationship with Mr. Huffman.

       This Court does not find it necessary to address the merits of this assignment of
error because even if the exclusion of Mr. Huffman’s testimony was error, the petitioner
has failed to allege or prove that the error was prejudicial. This Court previously has
explained that to warrant reversal there must be both an error and injury to the petitioner.
“[E]rror is prejudicial and ground for reversal only when it affects the final outcome and
works adversely to a substantial right of the party assigning it.” Reed v. Wimmer, 195 W.
Va. 199, 209, 465 S.E.2d 199, 209 (1995). Under our long-established law,

                      [w]hen evidence is excluded and the action of the court
              in excluding it is relied upon in the appellate court, it must
              appear on the record that the evidence rejected was or would
              have been relevant, material and important to make its
              rejection available as a ground for error.

Syl. pt. 5, Maxwell v. Kent, 49 W. Va. 542, 39 S.E. 174 (1901). Mr. Huffman’s proposed
testimony does not appear in the record and the petitioner fails to indicate how the
exclusion of the testimony affected the final outcome of the trial or worked adversely to
the petitioner’s substantial rights. Therefore, this Court denies relief to the petitioner
based on this assignment of error.

                                             9

