                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Nestor F. Dans, M.D.,                                                            FILED
Defendant Below, Petitioner                                                      May 17, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 12-0633 (Kanawha County 09-C-856)                                     OF WEST VIRGINIA



W. Martin Riggs,

Plaintiff Below, Respondent



                             MEMORANDUM DECISION
        Petitioner Nestor F. Dans, M.D., by counsel Karen H. Miller, appeals the Circuit Court of
Kanawha County’s order entered on April 10, 2012, that required petitioner to remove a portion
of his driveway that encroached onto Respondent W. Martin Riggs’s property. Respondent, by
counsel Kenneth E. Webb, Jr. and Patrick C. Timony, filed a response. Petitioner filed a reply.

       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.

       Petitioner and respondent own adjacent lots of real estate along the Kanawha River in
Charleston, West Virginia. Petitioner’s address is 4608 Kanawha Avenue East and respondent’s
address is 4610 Kanawha Avenue East. Petitioner purchased his home in the year 2000.
Respondent purchased his home in 2006. The two properties have historically shared a joint
driveway leading to the homes from Kanawha Avenue.

         From about 2004 to 2006, prior to respondent purchasing his property, petitioner
extensively renovated his property, tore down a garage at the front of his home, and built a new
one in the rear of the home. In order to reach the new garage, petitioner extended the driveway so
that it reached the back of his home where the garage was now located. Having extended the
driveway, petitioner encroached onto the adjacent property, 4610, which at the time was owned
by Dr. Jean-Pierre Geagea. Dr. Geagea gave verbal permission for petitioner’s encroachment
onto his property. The encroachments included: (1) extending the joint driveway beyond its
original location, toward the river and onto 4610 Kanawha Avenue; (2) constructing a one-foot­
high decorative stone wall on the edge of the newly constructed driveway; and (3) building an
embankment that extended approximately twelve feet onto 4610 in order to support the driveway
extension and the decorative wall. The agreement between petitioner and Dr. Geagea was never
reduced to writing or recorded. It is undisputed that these encroachments are on what is now
respondent’s property.

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       Respondent purchased his property in 2006 after petitioner’s renovations were complete.
In 2009, respondent requested that petitioner remove the encroachments and petitioner refused.
Respondent then filed suit against petitioner for ejectment and trespass. Petitioner moved for
summary judgment in September of 2010. In November of 2010, we issued our opinion in
O’Dell v. Stegall, 226 W.Va. 590, 703 S.E.2d 561 (2010), clarifying the law on prescriptive
easements. Based on O’Dell, respondent moved for summary judgment in February of 2011.

        By order entered on January 5, 2012, the circuit court granted respondent’s motion for
summary judgment and denied petitioner’s motion for summary judgment. The court
retroactively applied O’Dell and rejected petitioner’s claim that he was entitled to a prescriptive
easement. In granting respondent summary judgment, the circuit court made the following
ruling:

       If [petitioner] is unable to acquire the property encroached upon from
       [respondent] within thirty (30) days of the entry of this Order, [petitioner] shall
       forthwith remove the structures that encroach upon [respondent’s] property - ­
       namely, (i) that part of the extended concrete driveway now owned by
       [respondent]; (ii) the one-foot-high decorative wall on the edge of the newly
       extended driveway located on the property now owned by [respondent]; and (iii)
       the embankment that supports the newly extended driveway which extends onto
       the property now owned by [respondent] the purpose of which was to provide
       support for the driveway extension and the decorative wall.

        Petitioner did not appeal the circuit court’s order granting respondent summary judgment
and the parties did not reach an agreement through which petitioner would acquire the part of
respondent’s property on which he had encroached. In early February of 2012, petitioner began
his efforts to comply with the court’s order, at least his interpretation of it. Petitioner removed
the back portion of the new concrete driveway to the extent it encroached onto respondent’s
backyard and removed the decorative wall. He had not yet removed the embankment, but
planned to do so. However, on March 1, 2012, respondent ordered that petitioner’s contractor
cease any further work on his side of the property line. The contractor complied.

        Respondent’s action prompted petitioner to file a “Motion to Enforce the Order of this
Court” with the circuit court. The court held a hearing on March 23, 2012, on petitioner’s
motion, and it became evident that the parties had different interpretations of the court’s January
5, 2012, summary judgment ruling with regard to exactly how much of the concrete driveway
was to be removed by petitioner. Petitioner asserted that the only portion required to be removed
was the back portion starting from approximately the back of respondent’s home and extending
toward the river. He reasoned that the other portion, which ran from the back of respondent’s
home, along respondent’s house and toward Kanawha Avenue, was not part of the “newly
extended driveway,” but rather, was part of the original shared driveway that the parties agree
existed for approximately eighty years.

       Respondent argued that there was no evidence that petitioner, or any previous owner of
his home, ever used the shared driveway beyond the petitioner’s original garage, which, prior to

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petitioner’s renovation, was in front of his house. Respondent argued that the new concrete
between the houses was included in the circuit court’s ruling of what was required to be
removed.

       The circuit court ruled in favor of the respondent and by order entered on April 10, 2012,
required petitioner to remove all of the concrete that he poured as part of the renovation that
encroached onto respondent’s property. The court’s ruling included removal of all of the
concrete that runs between and alongside of the two homes.1 Petitioner now appeals the April 10,
2012, order to this Court.

        On appeal, petitioner raises two assignments of error. First, he argues that the April 10,
2012, order is contrary to the evidence in this case, including the clear wording and intent of the
court’s summary judgment order. As the petitioner challenges a factual finding of the circuit
court, we review the challenge under a clearly erroneous standard. “‘A finding is clearly
erroneous when, although there is evidence to support the finding, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed...’” Thorne v. Comer, 215 W.Va. 283, 285, 599 S.E.2d 706, 708 (2004)(quoting
Syllabus Point 1, in part, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996)).

         Petitioner and respondent presented evidence to the circuit court concerning where the
shared driveway ended. Petitioner argued that the shared driveway extended to the rear of
respondent’s home based on evidence that a prior owner of respondent’s home testified that he
used to drive up to his kitchen to unload groceries. In contrast, respondent presented evidence
that the shared driveway ended at petitioner’s old garage, which was located at the front of
petitioner’s home prior to his renovations. Additionally, respondent presented evidence that the
shared driveway still consists of the original asphalt, while the disputed area is concrete. The
circuit court resolved this factual issue in respondent’s favor and we find no reason to conclude
that it is clearly erroneous.

       Second, petitioner argues that the circuit court’s order should be reversed on equitable
grounds because it essentially denies petitioner the use of his new garage.2 The record in this
matter shows that petitioner possessed a license to use the property by virtue of Dr. Geagea’s
verbal permission. In Cottrell v. Nurnberger, 131 W.Va. 391, 395-96, 47
S.E.2d 456 (1948), we described the difference between easements and licenses as follows:

       An easement creates an interest in land; a license does not, but is a mere
       permission or personal and revocable privilege which does not give the licensee
       any estate in the land. 1 Thompson on Real Estate, Permanent Edition, Section
       318; Washburn on Easements and Servitudes, 5. “A license differs very materially

       1
        The parties do not dispute the existence of the shared driveway. They dispute whether
the shared driveway extended to the narrow area between the two homes, as petitioner asserts, or
whether it stopped at the front of petitioner’s home, as respondent asserts.
       2
       On appeal, petitioner has abandoned his argument that he has acquired a prescriptive
easement over the disputed area.
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       from an easement in that it constitutes no interest in land whatever, and is not real
       estate, but is a mere authority, usually revocable at pleasure and not transferable,
       to do a certain act or series of acts, for example, to hunt, upon the lands of
       another, without conferring any interest in the land itself. On the other hand, an
       easement is the very opposite of this, being an interest in land, which is usually
       irrevocable and freely transferable in connection with the dominant tenement, as
       other interests in land are, subject to the same limitations.” 1 Minor on Real
       Property, Second Edition, Section 92.

(Emphasis in original). The conveyance of property terminates any licenses granted with respect
to the property at issue. See West Virginia Dept. of Highways v. Wheeling Antenna Co., 178
W.Va. 713, 715, 364 S.E.2d 39, 41 (1987)(“ It has been rationalized that since the sale of the
dominant estate destroys the license, the license is equally destroyed upon the vesting of title in
the condemner.”) We, therefore, conclude that petitioner’s license to encroach upon his
neighbor’s property terminated upon Dr. Geagea’s conveyance of the property to respondent.

       Additionally, however, petitioner essentially argues that he has acquired an easement by
estoppel:

       To create an estoppel in pais [easement by estoppel], there must be some conduct
       of the party against whom the estoppel is alleged, amounting to a representation
       or concealment of material facts; and when everything is equally known to the
       parties, although they are mistaken as to their legal rights, no estoppel arises.

John W. Fisher, II, A Survey of the Law of Easements in West Virginia, 112 W. Va. L. Rev. 637,
712 (2010). There is no evidence in the record that shows that respondent or any prior owner of
respondent’s property concealed material facts that would warrant granting petitioner an
easement by estoppel.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: May 17, 2013

CONCURRED IN BY:

Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis



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