ALLEN V. MCINARNAY and ARLENE S. MCINARNAY, Defendants Below, Petitioners,
PEGGY T. HALL, FRANK HALL, RUSSELL TESTERMAN, JR. ISAAC RIVER TESTERMAN, and CECILIA LEE TESTERMAN, Plaintiffs Below, Respondents.
Submitted: January 10, 2018
from the Circuit Court of Monroe County The Honorable Robert
A. Irons, Judge Civil Action No. CC-32-2006-C-35
H. Bryan, Esq. Counsel for the Petitioners.
L. Ziegler, Esq., Anna R. Ziegler, Esq., Elise A. Keaton,
Esq. Ziegler & Ziegler, L.C. Counsel for the Respondents
JUSTICE LOUGHRY suspended and therefore not participating.
BY THE COURT
"Abandonment of an easement . . . is a question of
intention that may be proved by nonuse combined with
circumstances which evidence an intent to abandon the right.
It is the burden of the party asserting the absence of an
easement by prescription to prove abandonment by clear and
convincing evidence." Syllabus Point 2, in part,
Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12
"An interpretation of the West Virginia Rules of
Civil Procedure presents a question of law subject to a
de novo review." Syllabus Point 4,
Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754
"Although the ruling of a trial court in granting or
denying a motion for a new trial is entitled to great respect
and weight, the trial court's ruling will be reversed on
appeal when it is clear that the trial court has acted under
some misapprehension of the law or the evidence."
Syllabus Point 4, Sanders v. Georgia-Pacific Corp.,
159 W.Va. 621, 225 S.E.2d 218 (1976).
"To preserve an issue for appellate review, a party must
articulate it with such sufficient distinctiveness to alert a
circuit court to the nature of the claimed defect."
Syllabus Point 2, State ex rel. Cooper v. Caperton,
196 W.Va. 208, 470 S.E.2d 162 (1996).
Under the West Virginia Rules of Civil Procedure , when
a party has failed during a jury trial to make a motion for
judgment as a matter of law under Rule 50(a) challenging the
sufficiency of the evidence, that party has waived the right
to mount any post-trial attack on the sufficiency of the
evidence under Rule 50(b). Additionally, if the party moves
for a new trial under Rule 59 and attempts to challenge the
sufficiency of the evidence supporting the verdict, then the
scope of review of the motion is confined to whether there
was any evidence to support the jury's verdict,
irrespective of its sufficiency, and which, if not addressed
by the court, would result in a manifest miscarriage of
error occurs during a trial, a basic rule of trial practice
is that a party must promptly lodge an objection to the
error. By objecting, the party alerts the opposing party and
the judge of the error so it may be corrected before the jury
renders a verdict. A party's failure to object usually
waives the right to complain about the error after the trial.
plaintiff in this appeal proved she had a written easement to
cross the defendants' land, but the defendants countered
with evidence that the plaintiff had legally abandoned the
written easement through decades of nonuse. The plaintiff
claims the defendants failed to introduce sufficient evidence
to support their abandonment theory. However, during two days
of trial, the plaintiff never made any objection or motion
that challenged the sufficiency of the defendants'
evidence. The jury returned a verdict in favor of the
defendants and concluded there was clear and convincing
evidence that the plaintiff abandoned the written easement.
the trial, the plaintiff filed a motion seeking a new trial,
and for the first time objected to the sufficiency of the
evidence offered by the defendants. Acting on the
plaintiff's motion, the circuit court set aside the
jury's verdict for insufficient evidence and granted the
plaintiff a new trial.
reverse. Under the West Virginia Rules of Civil Procedure, a
motion challenging the sufficiency of the evidence must be
lodged at trial, before the jury returns a verdict. Because
the plaintiff made no such motion at trial in this case, the
circuit court could only grant a new trial if there was
absolutely no evidence to support the jury's verdict.
Because the jury's verdict has support in the record, the
circuit court abused its discretion in setting aside the
jury's verdict and in granting a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
Peggy T. Hall is an adjoining landowner with the
defendants, Allen and Arlene McInarnay. Their adjoining
tracts are located in Monroe County, West Virginia.
century ago, at the beginning of the twentieth century, the
parties' tracts were part of a larger parcel owned by
L.S. Riffe ("Mr. Riffe"). In 1908, Mr. Riffe carved
out a smaller tract of land that he deeded to Matilda L.V.
Riffe ("Ms. Riffe"). The deed contained the
following language reserving a right-of-way across Ms.
Riffe's tract to Mr. Riffe's: "it is further
agreed that their [sic] shall be a free road through
the above named land to the out side lines or County Road. .
." This "free road" language in the 1908 deed
is the source of the parties' dispute.
Hall owns the land formerly owned by Mr. Riffe; the
McInarnays own the smaller tract conveyed to Ms. Riffe in
1908 which had the "free road" running across it.
The circuit court ruled that the "free road"
language created an express easement for ingress and egress
to Mrs. Hall's land across the McInarnays' land. The
parties agreed, based on surveys and an aerial photo from the
1940s, on the location of the original "free road"
across the McInarnays' land to Mrs. Hall's land.
However, undisputed evidence showed that the passage of time
has largely eradicated the "free road." There is a
gate blocking access to the "free road" where the
ancient roadbed separates from the modern road and enters the
McInarnays' land. Beyond the gate, the roadbed is
overgrown with trees and cut by a creek with no bridge.
Farther along, the old roadbed runs through what is now a
pond and marsh grasses where the pond drains. Nearer to Mrs.
Hall's tract, trash and a heap of debris block the old
Hall and her family have access to their property from a
modern road. However, she brought the instant suit demanding
an alternative access across the McInarnays' land. In a
two-day trial, Mrs. Hall sought to exercise the "free
road" clause in the 1908 deed to establish a new and
different route across the McInarnays' land. Mrs. Hall
introduced testimony from various individuals who had crossed
the McInarnays' tract, using a path different from the
old "free road, " on a handful of occasions in the
previous four decades.
McInarnays, however, asserted that Mrs. Hall had abandoned
the 1908 easement. "Abandonment of an easement . . . may
be proved by nonuse combined with circumstances which
evidence an intent to abandon" the easement. Abandonment
must be proven by clear and convincing evidence.
evidence at trial indicated that neither Mrs. Hall nor her
family nor her predecessors had used the "free
road" in recent decades. For instance, the prior owner
of the McInarnays' land testified that, in her
twenty-five years of owning the property, she never once saw
the Hall family cross the property, let alone use the
"free road." The prior owner said when she bought
the tract in 1980 there was no visible evidence of the old
roadbed. A neighbor told her about the old road that, in the
distant past, ran across the land, but she did not know its
defendant Allen McInarnay testified he walked the land before
he bought it in 2005 and saw no evidence of the old
"free road, " and no evidence any third parties
were crossing the land. Mr. McInarnay testified he bought the
property to use as an alpaca farm, and said that he would not
have bought the property if he saw evidence of third parties
using the property as a roadway.
50(a) of the West Virginia Rules of Civil Procedure 
establishes the procedure a party must use if, at trial, the
opposing party fails to produce sufficient evidence on a
question. Rule 50(a) provides that, "If during a trial
by jury a party has been fully heard on an issue and there is
no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue, " then the
opposing party must object to the lack of evidence by making
a motion for judgment as a matter of law. However, during the
trial, counsel for Mrs. Hall never made such a motion
regarding the sufficiency of the McInarnays' evidence on
the issue of abandonment of the easement.
jury returned a verdict finding "that the right of way
to the Hall property, over the McInarnay property, has been
terminated by abandonment, and that the Hall[s] have no right
of way over the McInarnay property." The parties do not
dispute that the jury was properly instructed that it could
find in the McInarnays' favor only if there was clear and
convincing evidence the easement had been abandoned.
Hall promptly filed a motion for judgment as a matter of law
under Rule 50 or, in the alternative, a new trial. Mrs. Hall
argued that the "evidence presented by the [McInarnays]
is clearly insufficient to support a jury verdict
extinguishing the easement because of abandonment by the
[Halls]." Specifically, Mrs. Hall contended there was no
evidence presented to suggest that the Hall family intended
to abandon the easement.
order entered December 28, 2016, the circuit court recognized
that Mrs. Hall had failed to object to the sufficiency of the
evidence at trial as required by Rule 50(a). The circuit
court therefore found that it was "powerless" to
consider a post-trial motion for judgment as a matter of law
to weigh the sufficiency of the evidence.
the circuit court found it could consider a sufficiency of
the evidence objection, one first raised after trial, under
Rule 59 (which permits circuit courts to grant a new trial).
The circuit court noted that the Halls "conceded they
rarely used the roadway across the lands of" the
McInarnays, and found "there was ample evidence at trial
concerning nonuse of the right of way[.]" The circuit
court determined, however, that the evidence was not
sufficient to prove that the Halls "ever had any
intention to abandon the easement created by the 1908
deed." The circuit court concluded that the verdict was
"against the clear weight of the evidence and will
result in a miscarriage of justice and, as such, that grounds
for a new trial exist[.]" The circuit court granted the
motion for a new trial regarding whether the easement
"has been terminated by abandonment by the [Halls, ] . .
. and if not abandoned, its exact current location."
McInarnays now appeal the circuit court's order granting
the Halls a new trial under Rule 59.
of the circuit court's order requires us to weigh the
circuit court's interpretation of Rule 50 and Rule 59 of
the West Virginia Rules of Civil Procedure. "An
interpretation of the West Virginia Rules of Civil
Procedure presents a question of law subject to a de
also examine the circuit court's overall decision to
grant the motion for a new trial. "This Court reviews
the rulings of the circuit court concerning a new trial and
its conclusion as to the existence of reversible error under
an abuse of discretion standard[.]" "Although
the ruling of a trial court in granting or denying a motion
for a new trial is entitled to great respect and weight, the
trial court's ruling will be reversed on appeal when it
is clear that the trial court has acted under some
misapprehension of the law or the
evidence." "[A] trial judge should
rarely grant a new trial. . . . Indeed, a new trial