                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS

Robert Heavner,
Defendant Below, Petitioner,                                                         FILED
                                                                                  June 10, 2020
vs) No. 18-1080 (Berkeley County CC-02-2017-P-412)                                  released at 3:00 p.m.
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
Three Run Maintenance Association, Inc.,                                             OF WEST VIRGINIA
Plaintiff Below, Respondent.


                                  MEMORANDUM DECISION

        This is an appeal from multiple orders1 of the Circuit Court of Berkeley County, West
Virginia, granting judgment against petitioner/defendant below, Robert Heavner 2 (“petitioner”),
in favor of respondent/plaintiff below, Three Run Maintenance Association, Inc, (“TRMA”).3 The
circuit court found that the approximate four-acre parcel petitioner obtained at a tax sale was
subject to a fifty-foot roadway easement for the use of lot owners in the adjoining subdivision and
granted a permanent injunction against petitioner from interfering with the easement and/or the
use of an adjacent lake and recreation common area. Petitioner contends the circuit court erred in
its assessment of the controlling plat and therefore granted an incorrect easement width. Petitioner
further contends the court erred in finding that he created a private nuisance and awarding attorney
fees, where he prevailed on certain theories advanced by TRMA.

        This Court has considered the parties’ briefs, oral arguments, and the record on appeal.
Upon consideration of the standard of review and the applicable law, we find no substantial
question of law presented nor prejudicial error. For these reasons and those set forth herein, a
memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the West
Virginia Rules of Appellate Procedure. Certain other matters are remanded for determination by
the circuit court, as more fully set forth herein.



       1
         Attached to petitioner’s Notice of Appeal are orders dated December 19, 2017, February
20, 2018, April 24, 2018, April 30, 2018, July 3, 2018, July 31, 2018, August 19, 2018, and
November 2, 2018 encompassing the piecemeal resolution of issues in the proceedings below. On
May 11, 2018, the circuit court entered a “Stipulation and Order” indicating that the appeal period
for the orders dated February 20, 2018, April 24, 2018, and April 30, 2018, which only partially
resolved the claims asserted, would not begin to run “until such time as a final and appealable
Order has been entered as so indicated herein.”

       2
           Petitioner is represented by Christopher P. Stroech, Esq., of Arnold Bailey, PLLC.

       3
           TRMA is represented by Braun A. Hamstead, Esq. of Hamstead & Associates L.C.


                                                 1
                                 I. Factual and Procedural History

        In 1966, C. H. McDonald set out to create a subdivision in the Mill Creek District of
Berkeley County, West Virginia. The subdivision property is accessed from Three Run Road by
way of a roadway at the entrance to the subdivision, which crosses over Three Run Lake and dam
(the “dam roadway”); the roadway is now known as “Aspen Drive” and is the only means of access
to the subdivision property. In 1966, McDonald recorded a “preliminary plat” designated as
“Three Run Acres” which contains an annotation which reads “Dam Roadway 12’ Wide.”

        After conveying a few lots in Three Run Acres,4 McDonald apparently desired to convey
a large portion of the subdivision property to Arthur Radin for continued development. On July
16, 1969, McDonald executed a deed to Radin conveying, by metes and bounds, approximately
seventy-eight acres of the subdivision property inclusive of the dam roadway, the lake, and an
adjacent recreation area. 5 The deed is accompanied by a plat which denotes a “30’ Wide
Roadway” running through the property conveyed, but no specific reference to the dam roadway
or its width.

        Almost immediately thereafter, on July 31, 1969, Radin recorded a plat of the subject
property entitled “Three Run Woods”; it likewise makes no specific reference to the dam roadway
or its width, but contains a “Note” which generally expands roadways in the subdivision to fifty
feet wide. The “Note” reads:

                 The lot property lines extend to the centerlines of roads as shown
                 and noted. A 25 ft. wide easement over adjacent lots, or a 50 foot
                 wide easement through lots in each case totaling 50 ft. in width is
                 retained for the purpose of constructing and maintaining road
                 access. The road easement has a sq. ft. radius in the cul-de-sacs as
                 indicated.

(emphasis added). The plat also contains shaded areas, which appear to include the lake and
recreation area, with a notation that these areas “indicate[] jointly owned premises.” 6 Neither the

        4
         The appendix contains five deeds between 1968 and 1969 from McDonald to various
individuals consisting of Lots 3, 7, 8, 10, and 55 and which reference the 1966 plat. The deeds
contain no language expressly granting or reserving an easement. Petitioner maintains these out-
conveyances with reference to the 1966 plat are critical, as more fully discussed infra.
        5
            This deed reserved and excepted from the conveyance Lots 7 through 10 and the “school
lot.”
        6
            Two deeds contained in the appendix record also reference this shaded area and state:

                 All facilities which are marked on the plats of said Sub-division with
                 shaded diagonal lines, which may include, but are not limited to,
                 lakes, ponds, parking areas, picnic areas, restroom facilities and

                                                   2
documents in the appendix record nor testimony adduced below delineate the exact boundaries of
Three Run Woods relative to Three Run Acres with sufficient clarity; however, testimony makes
clear that both subdivisions continue to coexist, but with Three Run Woods comprising the
overwhelming majority of the subject area. Both subdivisions continue to be accessed by the same
entry-point: the dam roadway.

        In 1979, Radin conveyed four specific lots and “[a]ll of the remaining lots, pieces or parcels
of land” in Three Run Woods to L & L Corporation. Notably, the conveyance specifically refers
to the 1969 plat for Three Run Woods. L & L Corporation thereafter conveyed the same to Omco
Corporation in 1981. In 2008, Omco quitclaimed the “lake area” consisting of 4.7283 acres back
to L & L Corporation. Notwithstanding these conveyances, homeowners within the two
subdivisions continued to maintain the lake and recreation area, as well as the roads.7

        In 2014, petitioner purchased the 4.7283 acre parcel—which ostensibly included the
lake/recreation area and roadway over the dam—at a tax sale for $25 after the property taxes were
deemed delinquent. Three years later,8 in 2017, petitioner began exercising control of the property
by putting “no trespassing” signs near the lake area, digging a hole adjacent to the dam roadway,
placing landscaping timbers/railroad ties and cement pavers alongside the dam roadway, and
claiming the subdivision homeowners had rights to only a twelve-foot easement over the dam
roadway. 9 The homeowners objected because the items along the road prevented them from

               springs, shall become the joint property of all of the lot owners in
               said Sub-division, and all said lot owners shall have equal rights to
               the use thereof. The developers, however, retain the exclusive right,
               if they should so desire, to maintain the said facilities on the jointly
               owned premises.

(emphasis added). Since the appendix record contains no testimony or evidence regarding a
complete title search, it is not clear how many of the deeds for the subdivision contain similar
language.

       7
          The homeowners went so far as to issue fishing permits for residents, institute rules about
the size of watercraft on the lake, and maintain the trees and brush along the lake and dam to
prevent obstruction to the overflows. The recreation area on the opposite side of the dam was
utilized for parties, gatherings, fireworks, etc. by the residents. All of the “common areas” were
maintained by the residents including mowing, snow/ice removal, and management of drainage in
and around the dam and lake area. The dam roadway was paved and maintained by TRMA or its
predecessor entity.

       8
         TRMA suggests, and petitioner appears not to dispute, that he waited until this time to
take these actions in an effort to circumvent the statute of limitations for challenging his tax deed.
       9
          TRMA alleges that petitioner was aggressive in exercising his property rights by
threatening to put large “sea containers” alongside the roadway, writing threatening letters to the
association, allowing a large pontoon boat to enter the lake and damage the hillside, and cutting

                                                  3
parking there while awaiting the school bus, obstructed parking necessitated by icy roads in the
subdivision, and otherwise created a hazard to vehicles traveling in and out of the subdivision.
Petitioner demanded $10,000 to purchase the lake area from him; after a homeowner offered to do
so, he raised the price to $20,000.

        TRMA10 filed the instant action seeking an injunction against petitioner’s obstruction of
the easement, asserting that petitioner’s tax deed was void or voidable,11 and alleging a claim for
nuisance. At the preliminary injunction hearing, the president of TRMA testified that the dam
roadway obstructions created a safety hazard for vehicles traveling past each other by preventing
them from leaving the asphalt if needed and also prevented parents from parking alongside the
dam roadway to await the school bus with their children. Their inability to temporarily park in
this area while awaiting the bus required the parents to park on the other side of Three Run Road
and their children to then cross back over the road to board the bus. Petitioner testified that he
merely placed the timbers and barriers there to prevent vehicles from sliding into the lake and to
protect himself from liability.

         After the hearing, the circuit court issued a preliminary injunction which required petitioner
to remove the cement pavers and railroad ties/timbers from alongside the dam roadway and to fill
in the hole he created adjacent to the roadway. Petitioner failed to fully comply with the
preliminary injunction order, only moving the materials back further from the dam roadway; as a
result, the court issued a rule to show cause. Upon issuance of the rule to show cause, petitioner
complied and the court awarded TRMA attorney fees in the amount of $1,350.

        Thereafter, the circuit court granted TRMA’s motion for partial summary judgment as to
the width of the easement across the dam roadway, finding that a fifty-foot easement existed. The
circuit court found that petitioner’s tax deed ultimately derived from Radin’s deed, which
referenced the 1969 plat establishing a fifty-foot easement, stating that “[petitioner’s] grantors took
the property subject to the easement described in the 1969 Plat.” The circuit court denied
petitioner’s motion to dismiss the count alleging that his tax deed was void or voidable, finding

brush which allegedly obstructed the overflows. During an encounter with a TRMA member,
petitioner apparently gave him lemon trees to remind TRMA that he would always “be a thorn in
[its] backside.”

       10
           TRMA dedicates a large portion of its briefs to detailing the circumstances under which
the maintenance association came into being, its predecessor homeowners association, and its
attempts to exercise more overt control over the maintenance and ownership of the lake area and
roadways within the subdivisions. None of this information, however, appears pertinent to the
issues at hand.

       11
           TRMA challenged the tax deed on two bases: 1) as a “common interest community,”
the lake area (an alleged common area) was not subject to ad valorem taxes; and 2) petitioner
failed to provide proper notice to TRMA pursuant to the tax sale. The circuit court ultimately
ruled against TRMA on those issues and they were not cross-assigned as error.



                                                  4
that issue and the issue of whether petitioner interfered with the easement was not yet ripe for
consideration.

        Thereafter, petitioner effectively moved to set aside the summary judgment award as to the
fifty-foot easement and denial of his motion to dismiss, by filing his own motion for summary
judgment on those issues. Petitioner argued that “newly discovered evidence” indicated that the
prior ruling was in error. In particular, petitioner pointed to a “Description of Resurvey” dated
December 7, 1973 and a deed of Lot 48-A in Three Run Acres to Charles Michael Heck and Linda
Kay Heck dated July 19, 1974 (the “Heck deed”) which he claims supported his contention that
there was merely a twelve-foot easement. The circuit court rejected the idea that these publicly-
recorded documents constituted “newly discovered” evidence, but nevertheless considered them
and determined they had no effect on the prior ruling. The circuit court found that the documents
mention only a thirty-foot easement and “do not pertain to the specific portion of the road through
[petitioner’s] land that is currently at issue.” 12 The court also denied petitioner’s motion for
summary judgment as to the statute of limitations on the void/voidable tax deed issue, citing the
need for further factual development.

        On May 24, 2018, the court conducted a bench trial on the remaining issues. Petitioner did
not testify at trial,13 nor did he call any witnesses; TRMA’s president and vice-president testified
regarding the alleged nuisance and obstruction created by petitioner’s conduct.14 Nineteen joint
exhibits were submitted as evidence, consisting primarily of documents purporting to demonstrate
the chain of title, along with five additional exhibits by TRMA consisting mainly of
correspondence from petitioner. No experts testified on either party’s behalf, nor did counsel
conduct any closing argument. Rather, the court directed the parties to submit findings of fact and
conclusions of law.

       On July 3, 2018, the circuit court entered a judgment order finding 1) the lake and its
surrounding recreation area was not “jointly” owned by the residents, but rather was a common
area designated for the “use and enjoyment of all [] owners and their guests”; 2) the tax deed was
not void inasmuch as the county commission, and not the circuit court, had authority to determine

       12
          Neither the surveys accompanying these documents nor any other evidence introduced
below identify the location of the properties described therein relative to the dam roadway or
lake/recreation area at issue with sufficient clarity.

       13
         Petitioner did, however, testify at the preliminary injunction hearing and the transcript
of those proceedings was incorporated by reference, without objection, into the bench trial
proceedings.
       14
          The vice president testified that petitioner would “chas[e] individuals out” of the area
and would threaten that anyone attempting to maintain the areas would be considered trespassers.
He further testified that petitioner’s cutting of trees and brush near the lake caused overflow of the
lake because it was left to obstruct the drain and run-off areas. He testified that due to petitioner’s
use of the area, it had become an eyesore due to the lack of maintenance and dumping of crates,
timbers, and the like.

                                                  5
issues of taxability15; 3) petitioner obstructed the fifty-foot easement with his placement of pavers
and timbers near the road, warranting a permanent injunction; and 4) petitioner created a private,
rather than public, nuisance relative to the lake/recreation area, by preventing the lot owners from
using and enjoying it. The court awarded a permanent injunction prohibiting petitioner from
interfering with the fifty-foot easement and the lake/recreation area, as well as attorney fees. In a
separate order calculating the attorney fee award, the court found that the accounting of fees
submitted by TRMA included 1) fees generated in pursuing the rule to show cause, which had
already been awarded; and 2) fees related to the voidability of the tax deed, a claim upon which
TRMA was not successful. Accordingly, it reduced the claimed fees of $22,359.32 to $18,981.82.

        After the judgment order and attorney fee award, petitioner filed two motions: 1) a motion
for “clarification” of the judgment order; and 2) a motion for injunctive relief to prevent TRMA
from “denying [him] the enjoyment and use of his property—the Lake Area.”16 The court denied
both motions without prejudice. It found that the first motion failed to identify what part of the
judgment order required clarification and was filed past the deadline for motions pursuant to West
Virginia Rule of Civil Procedure 59. The second motion was denied as “foreign to the pleadings”
inasmuch as there was no complaint or claim seeking such relief; it further found that the matter
had been fully litigated and any subsequent conduct was not part of the proceedings. This appeal
followed. 17

                                       II. Standard of Review

       Inasmuch as this matter was resolved by way of bench trial, the following standard of
review is controlling:

                         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.



       15
            See n.11. This issue was not cross-assigned as error and is therefore not before the Court.

       16
          Petitioner alleged TRMA blocked his access to the lake area by vehicle and placed “no
trespassing” signs.

       17
           After filing his petition for appeal, petitioner refused to post an appeal bond and moved
the circuit court to stay the matter, which stay was refused. TRMA moved forward with execution
and sale of petitioner’s properties to satisfy the judgment. Petitioner then moved this Court for a
stay asserting he could not afford a bond, which was likewise refused. Petitioner then filed a
second motion to stay on the eve of the sale of his property which included his home, stating that
he had raised money for a bond. The Court again refused; however, in the interim, petitioner
apparently paid the attorney fee award in full and the sale of his property was cancelled.
                                                   6
Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538
(1996). Moreover, when the court serves as finder of fact, 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.” Brown v. Gobble, 196
W. Va. 559, 563, 474 S.E.2d 489, 493 (1996).

        Further, with respect to the injunctive relief, “[t]he denial or granting of an injunction by a
trial court is discretionary and will not be disturbed upon an appeal unless there is an absolute right
for an injunction or some abuses shown in connection with the denial or granting thereof.” Syl.
Pt. 6, Bd. of Dental Examiners v. Storch, 146 W. Va. 662, 122 S.E.2d 295 (1961). More
specifically,

                      [i]n reviewing objections to the findings of fact and
               conclusions of law supporting the granting or the denial of a
               temporary or preliminary injunction, we will apply a three-pronged
               deferential standard of review. We review the final order granting
               or denying the temporary injunction and the ultimate disposition
               under an abuse of discretion standard, we review the circuit court’s
               underlying factual findings under a clearly erroneous standard, and
               we review questions of law de novo.

Syl. Pt. 1, Bansbach v. Harbin, 229 W. Va. 287, 728 S.E.2d 533 (2012). With these standards in
mind, we address the parties’ arguments.

                                           III. Discussion

        Petitioner asserts that the circuit court erred in 1) finding a fifty-foot roadway easement
existed for “any and all” purposes; 2) granting injunctive relief when petitioner did not obstruct
the roadway or use of the lake/recreation area; 3) finding his acts constituted a private nuisance;
and 4) awarding attorney fees. We will address each argument in turn.

WIDTH OF EASEMENT

         Petitioner first argues that the documentary evidence submitted below supports either a
twelve- or thirty-foot wide easement,18 rather than the fifty-foot easement found by the circuit
court. Petitioner insists that the 1966 plat’s reference to the “12’ Dam Roadway” is conclusive
evidence that the easement is limited to that width, yet also argues that various documents—
specifically the 1973 “Description of Resurvey” and 1974 Heck deed—suggest the easement is
thirty feet wide. Petitioner further argues that because there had been out-conveyances subsequent
to the filing of the 1966 plat, any attempted modification of the plat to increase the twelve-foot
easement width in 1969 would improperly alter the easement width. Finally, petitioner insists that
the 1969 plat’s reference to the easement running “over” and “through” the lots necessarily



       18
         Petitioner fails to definitively advocate for which measurement he believes is correct,
but appears to ultimately argue in favor of a twelve-foot easement.
                                                  7
excludes the dam roadway because the dam roadway is not adjacent to an area designated as a
numbered lot in the plat.

         TRMA counters that, at the time of the filing of the 1969 plat, the developer (Radin) still
owned a fee simple interest to the area where the dam roadway crosses and could expand the
easement if he so chose. Consistent with TRMA’s position, the circuit court found that petitioner’s
title derives from the 1969 plat, which contains the aforementioned “Note” expressly providing
for a fifty-foot easement, and that the areas discussed in the 1973 Description of Resurvey and
1974 Heck deed were not in the same vicinity as the dam roadway at issue. As to petitioner’s
insistence that the fifty-foot easement applied only to the roads adjacent to numbered lots, the
circuit court found that the plain language of the plat indicates that the easement width prescribed
therein applied to “all of the then-existing roads in the Three Run area.”

         Because petitioner’s first assignment of error presents primarily a factual, rather than
legal, issue, we must adhere to our standard of review mandating that the circuit court’s factual
     19

findings “based on oral or documentary evidence, shall not be overturned unless clearly
erroneous[.]” Brown, 196 W. Va. at 563, 474 S.E.2d at 493. Given the dearth of testimony below
providing context and significance to the title documents submitted into evidence, we are hard-
pressed to ascertain any clear error. Petitioner provided no testimony or evidence of a complete
title search, survey, or other examination of the documentation and/or subject properties, much
less analysis of the title documents. 20 He compounded this failure by introducing piecemeal
survey documents and deeds without context. In effect, petitioner relegated the circuit court to the
role of title abstractor, with no evidence that the documents submitted fully and accurately
reflected the state of the title, and now complains that the court reached the wrong conclusion.
Even before this Court, petitioner fails to provide a cogent argument demonstrating any clearly
erroneous factual findings or support for his claim that the easement is limited to twelve feet, due
to a simple reference to a roadway width in a prior plat. See O’Dell v. Stegall, 226 W. Va. 590,
622, 703 S.E.2d 561, 593 (2010) (“[W]e cannot say that the plaintiff introduced clear evidence of
the precise location of the land that was adversely used.”); Husson v. Teays Valley Indus. Park
Owners & Users Ass’n, No. 15-0088, 2016 WL 1417863, at *6 (W. Va. Apr. 8, 2016)
(memorandum decision) (rejecting challenge to court’s determination regarding property lines
after bench trial where documents introduced regarding chain of title supported circuit court’s
factual findings); cf. Blair v. Preece, 180 W. Va. 501, 505, 377 S.E.2d 493, 498 (1988) (contrasting
testimony of surveyor with introduction of mere “chain of documents” regarding location of
boundary line).



          19
           Petitioner fails to provide any law which the circuit court misapprehended or otherwise
erred in its application to the record evidence. In his brief, he characterizes the circuit court’s
ruling as erroneous because it was made “without the benefit of complete and accurate
information.”

          In fact, even after the circuit court had entered summary judgment in TRMA’s favor on
          20

the width of the easement and petitioner moved to reconsider on the basis of “newly discovered”
documents from the county clerk’s office, his counsel indicated he was still “researching and
[would] supplement [the] Motion” with additional deeds.
                                                 8
        Both before this Court and the circuit court, petitioner appears to be using the morass of
non-contextual documentation introduced into evidence to his best advantage by cherry-picking
isolated references about various roadway widths without supporting testimony or argument
precisely locating and/or explaining their significance. While this Court has never expressly held
that expert testimony in a property dispute is required, petitioner has provided neither the circuit
court nor this Court sufficient evidence regarding the inter-relationship of the various documents
and attached plats and surveys to establish his position or upon which to conclude that the circuit
court plainly erred. See, e.g Lowe v. Hegyi, No. 15-0718, 2016 WL 5867273, at *6 (W. Va. Oct.
7, 2016) (memorandum decision) (finding no error where petitioners “offered no expert testimony
upon which the court could determine that the [] plat failed as a matter of law”). This Court has
made clear that “[t]he finding of a trial court upon the facts submitted to it in lieu of a jury will be
given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless
the evidence plainly and decidedly preponderates against such finding.” Syl. Pt. 7, Bluefield
Supply Co. v. Frankel’s Appliances, Inc., 149 W. Va. 622, 142 S.E.2d 898 (1965). We find no
such evidence here.

        Rather, based upon this Court’s review of the appendix record, we find more than adequate
support for the circuit court’s conclusion that petitioner’s deed derives of the 1969 plat which
plainly identifies a fifty-foot easement for constructing and maintaining road access in the
previously-described “Note.”21 “‘When lands are laid off into lots, streets, and alleys, and a map
plat thereof is made, all lots sold and conveyed by reference thereto, without reservation, carry
with them, as appurtenant thereto, the right to the use of the easement in such streets and alleys
necessary to the enjoyment and value of such lots.’ Syllabus Point 2, Cook v. Totten, 49 W. Va.
177, 38 S.E. 491 (1901).” Syl. Pt. 1, Knotts v. Snyder Enterprises, Inc., 170 W. Va. 727, 296
S.E.2d 849 (1982). The deed from Radin to L & L Corporation specifically references the 1969
plat, in which a fifty-foot easement is plainly created. 22 All grantees subsequent to L & L
Corporation took subject to the fifty-foot easement created in the plat, including the delinquent
taxpayer from whom petitioner’s tax deed derives. West Virginia Code § 11A-3-62(a) (1994)
provides in pertinent part:

                       Whenever the purchaser of any tax lien on any real estate
               sold at a tax sale, his heirs or assigns, shall have obtained a deed for
               such real estate from the deputy commissioner or from a
               commissioner appointed to make the deed, he or they shall thereby
               acquire all such right, title and interest, in and to the real estate, as

       21
            Additionally, to whatever extent there is any substance to petitioner’s contention that an
attempted modification of the easement would detrimentally affect the out-conveyances made
subject to the 1966 plat, he has no standing to assert any such issue. “By force of logic, statute,
and case law, however, a party must have title to a property to bring an action to quiet title. With
no title, there is nothing to be quieted.” Barclay v. Robert C. Malt & Co., 985 So.2d 53, 54 (Fla.
Dist. Ct. App. 2008).

       22
          We likewise agree with the circuit court that the easement language utilizing “lots” as a
reference point to describe the width of the easement does not suggest the easement exists only as
to roads which abut the numbered lots.
                                                   9
               was, at the time of the execution and delivery of the deed, vested in
               or held by any person who was entitled to redeem . . . .

Therefore, by statute, petitioner attained no greater or different rights under his tax deed than the
delinquent taxpayer held and his property is therefore subject to the same easement.

         Moreover, to whatever extent petitioner maintains that his property is encumbered solely
by the “12’ Wide Roadway” reference in the 1966 plat, we find that he has failed to provide any
evidence or authority that this mere reference was sufficient to create an express easement in the
first instance. There is no evidence that this reference served as more than a mere marker or
indicator on the plat inasmuch as there is no language designating it as a right-of-way or easement.
See Our Lady of the Rockies, Inc. v. Peterson, 181 P.3d 631, 650 (Mont. 2008) (“[T]he intent to
create an easement must be clearly and unmistakably communicated on the referenced plat or
certificate of survey using labeling or other express language. This is the minimal requirement to
establish the easement.”). Additionally, petitioner introduced no evidence of intent with respect
to the 1966 plat which may have indicated an intention to create an easement by that reference.
See Farley v. Farley, 215 W. Va. 465, 469, 600 S.E.2d 177, 181 (2004) (finding that intention of
parties as pertained to express grant of easement is controlling).

         Even assuming that the “12’ Wide Roadway” reference created an express easement,
petitioner provides no reason why any such purported easement was not successfully modified by
the subsequent plat. As TRMA notes, at the time the 1969 plat was created and filed, Radin still
ostensibly owned the fee simple to the area encompassing the dam roadway and lake/recreation
area and therefore was entitled to create and/or expand the easement as to any subsequent
grantees. 23 Finally, we find no basis upon which to conclude that the circuit court erred in
determining that the thirty-foot roadway references in the Description of Resurvey and Heck deed
were not in the vicinity of and therefore had no bearing on the easement area at issue. In view of
all of the foregoing, we find no error in the circuit court’s conclusion that a fifty-foot easement
exists across the dam roadway.

USE OF THE EASEMENT

         As a subset of his assignment of error regarding the easement width, petitioner also argues
that the circuit court erred in permitting the easement to be used for “any and all purposes” and
that its use should be limited to ingress and egress, i.e. that parking by the subdivision residents is




       23
          Because petitioner failed to introduce evidence of a complete title examination, there is
no evidence of any out-conveyances by Radin, which would determine precisely which “lots,
pieces or parcels of land” were remaining to be conveyed to L & L Corporation at that time.
However, presumably the deed to L & L Corporation included the dam roadway, lake, and
recreation area. Otherwise, petitioner would not have been able to obtain title to this disputed area
in his purchase of the tax deed.



                                                  10
beyond the scope of the easement.24 In support, petitioner cites general caselaw which provides
that easements are limited to their “terms and purposes”: “Where one acquires an easement over
the property of another by an express grant, the use of that easement must be confined to the terms
and purposes of the grant.” Syl. Pt. 1, Hoffman v. Smith, 172 W. Va. 698, 310 S.E.2d 216 (1983).
See also Syl. Pt. 2, Lowe v. Guyan Eagle Coals, Inc., 166 W.Va. 265, 273 S.E.2d 91 (1980) (“No
use may be made of a right-of-way different from that established at the time of its creation so as
to burden the servient estate to a greater extent than was contemplated at the time of the grant.”).

        Petitioner maintains that the 1966 plat’s reference to a twelve-foot “roadway” and the 1969
plat’s designation of a fifty-foot easement for “constructing and maintaining road access” is
evidence that the easement’s use is restricted to literal coming and going and not parking.
However, none of the plats or deeds upon which petitioner relies specifically state that the
easement is exclusively for “ingress and egress.” See Leposky v. Fenton, 919 A.2d 533, 537 (Conn.
App. Ct. 2007) (prohibiting consistent parking and storage of boat where “the language creating
the right-of-way explicitly limits the plaintiffs’ easement rights to ingress and egress”).

        Moreover, petitioner cites no cases in support of his contention that a roadway easement
cannot be utilized for temporary parking on the easement. Petitioner does not allege that any
homeowners park and leave their vehicles with regularity, for an extended period of time without
necessity, or in a manner which obstructs the use of the easement. Compare Loveman v. Lay, 124
So.2d 93, 97 (Ala. 1960) (prohibiting parking in easement where cars were “parked unattended in
the alley from around 8:30 A.M. to 4:30 to 5:00 P.M. . . . . [and] it was necessary to find the owner
of the car and the removal would take from five to fifteen minutes each time.”); Mad River Sec.,
Inc. v. Felman, 112 N.E.2d 646, 648 (Ohio 1953) (prohibiting parking where use of right of way
“for parking and storing automobiles over protracted periods of time [] render[ed] the alley
impassable for indefinite periods”).

       We note that the appendix record reveals that the roadway pavement itself is twenty feet
wide, allowing for fifteen feet of easement width on either side of the roadway where vehicles
could park temporarily without exceeding the width of the granted easement. “It is one thing to
expand a use . . . by reason of changed conditions and times and quite another to engage in an
unauthorized practice entirely foreign to the use.” Mad River Sec., Inc., 112 N.E.2d at 648. We
find that temporarily parking in occupied vehicles while awaiting a school bus or occasional
parking while awaiting a clearing of the hazardous icy hill leading into the subdivision could hardly
be construed as an expansion of a roadway easement or “foreign” to its use. Accordingly, we
likewise conclude that the circuit court committed no error in this regard.25

        24
          Petitioner also incorporates the use of the lake area into this argument but is not specific
as to how the homeowners’ use of that area should be limited relative to the court’s ruling.

        25
            Relative to this issue, petitioner further argues that the circuit court erred in refusing to
“clarify” its ruling after the judgment order was entered in response to his complaints that TRMA
placed “no trespassing” signs on the property allegedly “directed at [him]” and moved the timbers
left in the area to allegedly block his vehicle access to the lake area. However, as the circuit court
properly concluded, there is nothing unclear about the language of the order; any subsequent

                                                   11
PROPRIETY OF INJUNCTIVE RELIEF AND FINDING OF NUISANCE

        Next, petitioner argues that the court erred in finding that his actions—which he
characterizes as merely “using and protecting his property”—constituted a private nuisance and in
finding an obstruction which necessitated a permanent injunction. We note that petitioner scarcely
argues this issue; he argues in conclusory fashion that any interference was neither substantial nor
unreasonable. He maintains he never blocked the paved portion of the road and that other than
occasionally driving through the neighborhood and cutting brush which allegedly clogged the
overflow for the dam, he did nothing which interfered with the easement.

        As set forth in greater detail supra, respondent counters that petitioner intentionally
blocked parking alongside the roadway but within the easement width, creating a traffic hazard.
He further allowed the lake/recreation area to become a health and safety hazard, subjecting the
community to flooding due to blockage of the overflows, among other abusive and obstructive
behaviors. Respondent contends these acts were designed to further petitioner’s attempted
“extortion” of an exorbitant payment for the land.

        To establish a private nuisance, as found by the circuit court, this Court has held: “A private
nuisance is a substantial and unreasonable interference with the private use and enjoyment of
another’s land.” Syl. Pt. 1, Hendricks v. Stalnaker, 181 W. Va. 31, 380 S.E.2d 198 (1989). Further,
“[a]n interference with the private use and enjoyment of another’s land is unreasonable when the
gravity of the harm outweighs the social value of the activity alleged to cause the harm.” Syl. Pt.
2, Id.

        Whether the intent TRMA attributes to petitioner is accurate or not, we find that petitioner’s
position that his actions were neither substantial nor unreasonable ignores a great deal of the
testimony elicited during the preliminary injunction hearing, which the circuit court plainly found
credible. See nn. 9 and 14, supra. “This Court gives due regard to a circuit judge’s ability to
evaluate the credibility of the witnesses. 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[.]’” Harrell
v. Cain, 242 W. Va. 194, ___, 832 S.E.2d 120, 132 (2019) (quoting Brown, 196 W.Va. at 563, 474
S.E.2d at 493). The record evidence presented below clearly established that petitioner created a
hazard to vehicles using the easement, intentionally blocked their full use of the easement area,
and created a hazard and eyesore at the lake/recreation area. 26 Cf. State Rd. Comm’n v. Oakes,
150 W. Va. 709, 717, 149 S.E.2d 293, 298–99 (1966) (issuing injunction where defendant piled
“unsightly materials, consisting of various kinds of lumber, old furniture, [and] cross-ties . . .



dispute is a new issue which is foreign to the issues litigated and not subject to post-hoc relief.
Petitioner is not entitled to hold the court’s jurisdiction hostage while he litigates ad infinitum each
and every grievance he may ultimately have with TRMA.
       26
          “While unsightliness alone rarely justifies interference by a circuit court applying
equitable principles, an unsightly activity may be abated when it occurs in a residential area and is
accompanied by other nuisances.” Syl. Pt. 11, Burch v. Nedpower Mount Storm, LLC, 220 W. Va.
443, 647 S.E.2d 879 (2007) (emphasis added).
                                                  12
[which] obstruct[ed] the view of the intersection . . . and creat[ed] a traffic hazard on the road”).
We therefore find no error with respect to the circuit court’s finding of a private nuisance.

        Accordingly, with respect to the award of injunctive relief, we find no abuse of discretion;
petitioner’s conduct was patently obstructive and necessitated such relief to preserve the
homeowners’ right of use and enjoyment of the easement and lake/recreation area. See Knotts,
170 W. Va. at 728, 296 S.E.2d at 850 (“Numerous decisions sustain the proposition that once the
right to the use of such way has been established, a mandatory injunction is the proper procedure
to remedy its obstruction or encroachment.”).

ATTORNEY FEES

        Finally, petitioner argues that the circuit court erred in awarding attorney fees because he
prevailed on “several claims,” including whether the tax deed was void or voidable and the lack
of a public nuisance. TRMA counters that it effectively prevailed in toto, winning a favorable
declaration of the width of the easement, an injunction, and a finding of nuisance.

       This Court has repeatedly held that “‘the trial [court] . . . is vested with a wide discretion
in determining the amount of . . . court costs and counsel fees; and the trial [court’s] . . .
determination of such matters will not be disturbed upon appeal to this Court unless it clearly
appears that [it] has abused [its] discretion.’ Syl. Pt. 3, in part, Bond v. Bond, 144 W.Va. 478, 109
S.E.2d 16 (1959).” Syl. Pt. 1, Heldreth v. Rahimian, 219 W. Va. 462, 637 S.E.2d 359 (2006).

        We find that this assignment of error is wholly without merit. Petitioner ignores that the
fees for the lone substantive claim on which he was successful—the voidability of the tax deed—
were excised from the fee award by the circuit court. The claim of public nuisance was merely a
corollary to the private nuisance claim successfully advanced by TRMA. Without question,
TRMA was successful in every substantial aspect of the proceedings.

         Furthermore, TRMA has requested its “attorney fees and expenses incurred in this appeal.”
As set forth in its judgment order, the circuit court below found attorney fees recoverable in this
matter on the basis of petitioner’s “bad faith prior to this litigation and in connection with this
litigation.”27 In support of its award, the circuit court cited to syllabus point four of Bowling v.
Ansted Chrysler-Plymouth-Dodge, Inc., 188 W. Va. 468, 425 S.E.2d 144 (1992): “Where it can
be shown by clear and convincing evidence that a defendant has engaged in fraudulent conduct
which has injured a plaintiff, recovery of reasonable attorney’s fees may be obtained in addition
to the damages sustained as a result of the fraudulent conduct.”

       Rule 24 of the West Virginia Rules of Appellate Procedure provides that “[a]ttorney’s fees
and costs are not taxable unless specifically provided by law.” (emphasis added). Furthermore, in


       27
          Petitioner did not appeal the basis of recoverability of attorney fees and costs in this
matter; rather, he appealed only the “excessive[ness]” of the award in light of his position that he
was successful on certain claims.


                                                 13
syllabus point two of Quicken Loans, Inc. v. Brown, 236 W. Va. 12, 777 S.E.2d 581, 584 (2014),
we held:

                       Pursuant to Rule 24 of the West Virginia Rules of Appellate
               Procedure, attorney fees and costs may be awarded for appellate
               proceedings by either this Court or by the trial court following the
               direction of this Court. Although this Court has the authority to set
               the amount of an attorney fee award, this Court may, in its
               discretion, instead direct the trial court to determine the amount of
               the appropriate attorney fee award on remand.

Accordingly, we find TRMA’s request for attorney fees and expenses incurred in this appeal well-
taken. In view of its success on appeal and the lack of challenge to the circuit court’s basis for the
award of fees, we find that TRMA is entitled to recovery of attorney fees and costs incurred in
litigation of this appeal. However, we find that the circuit court is better situated to make an
appropriate determination of the amount of fees and costs to be awarded and therefore a limited
remand is necessary. See Michael C. v. Teressa D., No. 13-1077, 2014 WL 4930191, at *7 (W.
Va. Oct. 2, 2014) (memorandum decision) (“The issue of the reasonableness of attorney’s fees is
remanded to the circuit court for a hearing to determine the appropriate amount of such an
award.”).

        For the foregoing reasons, we affirm the aforementioned orders of the Circuit Court of
Berkeley County, West Virginia. This case is remanded to the Circuit Court of Berkeley County,
West Virginia for the limited purpose of determining the appropriate award of attorney fees and
costs incurred by the respondent in defending against this appeal.

                                                                 Affirmed in part; remanded in part.

ISSUED: June 10, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman




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