JOSEPH MICHAEL CANTRELL, KAREN (CANTRELL) LEONARD, CRAIG CANTRELL, and KIM (CANTRELL) MAY, Petitioners Below, Petitioners
JEFFERSON DAVID CANTRELL and LESLIE CHARLENE CANTRELL, Respondents Below, Respondents
Submitted: February 13, 2019
from the Circuit Court of Mingo County The Honorable John L.
Cummings, Judge Civil Action No. 15-C-55
Christopher Younger, Esq. Williamson, West Virginia Counsel
for the Petitioners
Timothy Koontz, Esq. Law Offices of M. Timothy Koontz
Williamson, West Virginia Counsel for the Respondents
BY THE COURT
"''Unless an absolute right to injunctive relief
is conferred by statute, the power to grant or refuse or to
modify, continue, or dissolve a temporary or a permanent
injunction, whether preventive or mandatory in character,
ordinarily rests in the sound discretion of the trial court,
according to the facts and the circumstances of the
particular case; and its action in the exercise of its
discretion will not be disturbed on appeal in the absence of
a clear showing of an abuse of such discretion.' Syl. pt.
11, Stuart v. Realty Corp., 141 W.Va. 627, 92 S.E.2d
891 (1956).' Syl. Pt. 1, G Corp, Inc. v. MackJo,
Inc., 195 W.Va. 752, 466 S.E.2d 820 (1995)."
Syllabus Point 1, Baisden v. West Virginia Secondary
Schools Activities Commission, 211 W.Va. 725');">211 W.Va. 725, 568 S.E.2d
"'This Court reviews the circuit court's final
order and ultimate disposition under an abuse of discretion
standard. We review challenges to findings of fact under a
clearly erroneous standard; conclusions of law are reviewed
de novo.' Syl. Pt. 4, Burgess v.
Porterfield, 196 W.Va. 178, 469 S.E.2d 114
(1996))." Syllabus Point 1, Wilson v. Staats,
232 W.Va. 227');">232 W.Va. 227, 751 S.E.2d 747 (2013).
"A person claiming a prescriptive easement must prove
each of the following elements: (1) the adverse use of
another's land; (2) that the adverse use was continuous
and uninterrupted for at least ten years; (3) that the
adverse use was actually known to the owner of the land, or
so open, notorious and visible that a reasonable owner i of
the land would have noticed the use; and (4) the reasonably
identified starting point, ending point, line, and width of
the land that was adversely used, and the manner or purpose
for which the land was adversely used." Syllabus Point
1, O'Dell v. Stegall, 226 W.Va. 590');">226 W.Va. 590, 703 S.E.2d
"A person claiming a prescriptive easement must
establish each element of prescriptive use as a necessary and
independent fact by clear and convincing evidence, and the
failure to establish any one element is fatal to the
claim." Syllabus Point 3, O'Dell v.
Stegall, 226 W.Va. 590');">226 W.Va. 590, 703 S.E.2d 561 (2010).
"In the context of prescriptive easements, the term
'adverse use' does not imply that the person claiming
a prescriptive easement has animosity, personal hostility, or
ill will toward the landowner; the uncommunicated mental
state of the person is irrelevant. Instead, adverse use is
measured by the observable actions and statements of the
person claiming a prescriptive easement and the owner of the
land." Syllabus Point 4, O'Dell v. Stegall,
226 W.Va. 590');">226 W.Va. 590, 703 S.E.2d 561 (2010).
"In the context of prescriptive easements, an
'adverse use' of land is a wrongful use, made without
the express or implied permission of the owner of the land.
An 'adverse use' is one that creates a cause of
action by the owner against the person claiming the
prescriptive easement; no prescriptive easement may be
created unless the person claiming the easement proves that
the owner could have prevented the wrongful use ii by
resorting to the law." Syllabus Point 5, O'Dell
v. Stegall, 226 W.Va. 590');">226 W.Va. 590, 703 S.E.2d 561 (2010).
"'There are two forms of implied easements: an
easement implied by necessity (which in West Virginia is
called a 'way of necessity'); and an easement implied
by a prior use of the land (also called an easement implied
from a 'quasi-easement').' Syl. Pt. 3, Cobb
v. Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800
(2010)." Syllabus Point 2, Wilson v. Staats,
232 W.Va. 227');">232 W.Va. 227, 751 S.E.2d 747 (2013).
"'The law does not favor the creation of easements
by implied grant or reservation.' Syllabus point 1,
Stuart v. Lake Washington Realty, 141 W.Va. 627, 92
S.E.2d 891 (1956)." Syllabus Point 1, Cobb v.
Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).
"'The burden of proving an easement rests on the
party claiming such right and must be established by clear
and convincing proof.' Syllabus point 1, Berkeley
Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d
732 (1976)." Syllabus Point 2, Cobb v.
Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).
"To establish an easement implied by necessity (which in
West Virginia is called a 'way of necessity'), a
party must prove four elements: (1) prior common ownership of
the dominant and servient estates; (2) severance (that is, a
conveyance of the iii dominant and/or servient estates to
another); (3) at the time of the severance, the easement was
strictly necessary for the benefit of either the parcel
transferred or the parcel retained; and (4) a continuing
necessity for an easement." Syllabus Point 4, Cobb
v. Daugherty, 225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).
"'If one has a reasonable outlet over his own
property, he cannot exact a more convenient way as of
necessity over the premises of another.' Syllabus point
2, Dorsey v. Dorsey, 109 W.Va. 111');">109 W.Va. 111, 153 S.E. 146
(1930)." Syllabus Point 5, Cobb v. Daugherty,
225 W.Va. 435');">225 W.Va. 435, 693 S.E.2d 800 (2010).
"To establish an easement implied by a prior use of the
land, a party must prove four elements: (1) prior common
ownership of the dominant and servient estates; (2) severance
(that is, a conveyance of the dominant and/or servient
estates to another); (3) the use giving rise to the asserted
easement was in existence at the time of the conveyance
dividing the property, and the use has been so long continued
and so obvious as to show that the parties to the conveyance
intended and meant for the use to be permanent; and (4) the
easement was necessary at the time of the severance for the
proper and reasonable enjoyment of the dominant estate."
Syllabus Point 6, Cobb v. Daugherty, 225 W.Va. 435');">225 W.Va. 435,
693 S.E.2d 800 (2010).
WALKER, CHIEF JUSTICE.
case is a dispute among five adult children of the late
Beulah and Delmon Cantrell about whether an easement exists
across property now owned by one sibling to allow ingress to
and egress from adjacent property owned by the other four
siblings. Michael, Karen, Craig and Kim
(Petitioners) filed a petition for injunctive relief
against David (and his wife Leslie) claiming that the easement
is necessary for them to access their property. Respondents
David and Leslie contended that Petitioners could not
establish an easement by prescription or implication. After a
three-day bench trial, the circuit court refused the
injunction because (1) Petitioners' use of
Respondents' property was permissive, so Petitioners
failed to prove the adverse use required for a prescriptive
easement; and (2) Petitioners offered no credible evidence of
strict or reasonable necessity or prior use, and thus failed
to establish an implied easement. We agree and affirm the
circuit court's order.
FACTUAL AND PROCEDURAL BACKGROUND
1960's, the late Beulah Cantrell (Mother) and the late
Delmon Cantrell (Father) purchased a parcel of real estate in
Varney, West Virginia, known as Lots 88 through 93 and 124
through 129 (the Cantrell Property). Together, these twelve lots
created a rectangular-shaped property with the east edge
flush against the west side of White Street. On the north,
the property bordered Second Avenue and on the south, First
2006, the Cantrell Property had two residences on it, both on
the northern half of the rectangle, on Lots 124 through 129
(Old Property). There was an old, small, wooden residence
(the old home place) on Lots 127 through 129, and a larger,
brick home (the new home place) on Lots 124 through 126.
1979, Mother and Father moved out of the old home place and
into the new home place where they lived until their deaths.
Petitioner Craig now lives in the new home place. When Father
and Mother vacated the old home place in 1979, Petitioner
Michael moved in. In 1984, Respondent David built a home on
Lots 88 through 93 of the southern half of the Cantrell
Property. Petitioners Karen and Kim each now live in
1991, Michael (and his wife Sheila) purchased eight lots
adjacent to and on the west side of the Cantrell Property,
Lots 130 through 133 and Lots 84 through 87 (New Property).
The New Property is a rectangular-shaped property with the
west edge flush against the east side of Varney Street and
the east edge flush against the west edge of the Cantrell
Property. It is bordered on the south by First Avenue and on
the north by Second Avenue. Before Michael's purchase in
1991, the New Property had never been owned by any member of
the Cantrell family. After Michael's purchase of these
lots in 1991, he constructed a road across the lots.
1999, Michael (and Sheila) sold the New Property to David
(and Leslie). Michael intended to use the sale proceeds to
construct a new home on a completely separate, adjacent
parcel on the other side of Varney Street. Indisputably,
there was no express easement burdening the New Property at
the time Michael sold it to David.
and other family members helped Michael build his new home
and allowed Michael to store equipment and cut timber on the
New Property during its construction. When Michael's new
home was completed in August 2006, he vacated the old home
place and moved into his new house. Soon after, in the fall
of 2006, the parties razed the old home place on Lots 127
through 129 of the Cantrell Property.
testified that after he sold the New Property to David in
1999, he continued to use the New Property to park vehicles,
store timber, and operate a small saw mill during the
construction of his new home. After the completion of his new
home in 2006, Michael testified that he continued to drive
across the New Property when visiting with Craig and Mother
until her death in 2009. Michael also testified that he
continued to access his saw mill on the New Property until it
was removed in 2010.
passed away in November 2009 and through her last will and
testament, Petitioners obtained title to the Old Property
(Lots 124 through 129). Craig, who acquired a life estate in
these lots, continues to reside in the new home place, and
the other Petitioners have remainder interests in the lots.
David was not included in the devise of the Old Property, as
he had already been given Lots 88 through 93 by deed in
point, the familial relationship soured. Respondents allege
that Petitioners never complained about having an easement
across the New Property until Respondents prosecuted
Craig's son for breaking into their storage building on
David's property in 2012 or 2013. In 2015, Petitioners
disconnected the water supply to Respondents' home from a
private well located on the Old Property. Respondents had
drawn water from the well, with Father's permission, for
twenty-five years. As a result of the disconnection,
Respondents spent $1, 500 to restore water to their home by
city water access and now pay a monthly water bill.
March of 2015, Petitioners filed a petition for injunctive
relief seeking to establish an easement across
Respondents' property, either by prescription or
implication, for ingress to and egress from the Old Property.
According to the petition, Petitioner Craig Cantrell intends
"to construct a dwelling, for use as a rental," on
the Old Property and so Petitioners "believe it is
necessary to establish the right-of way to the tract . . . to
ensure the establishment and continued use of the same by
recorded instrument." Petitioners contended that Lots
128-129 are landlocked and inaccessible by any other means
than through the Respondents' property because there are
two septic tank systems that cannot be relocated filling all
the yard space of the new home place, which might allow
access to these lots from White Street for construction
purposes. They also alleged that the area above lots 128-129,
which was traditionally accessed by steps, is too steep and
rocky for vehicular access.
response to the petition for injunction, Respondents argued
that Petitioners could not establish an easement by
prescription or implication. Respondents contended that they
never prevented Petitioners from using the property, and if
they did use it, it was with Respondents' permission.
Respondents asserted that they "never granted
[Petitioners] an easement nor did [Respondents] deny
[Petitioners] use of the property. Why would we? They are
family. The reality is that [Petitioners] used their own
property to access their adjacent lot, not the property in
question[.]" Respondents contended that there had never
been an easement across the property, and while they planned
to build a new residence of their own on the New Property
where the last one was located, this could not coexist with
the Petitioners' claimed easement.
the course of two hearings and a three-day bench trial,
various witnesses testified regarding Petitioners' use of
the alleged easement for ingress to and egress from the Old
Property. Karen, Craig and Pearly Edwards, a former resident
of the property, testified that numerous people routinely
traversed Lots 84 through 87 (the New Property) by using the
alleged easement for as long as they could remember.
Conversely, Respondents testified that numerous people
routinely accessed the Old Property with their vehicles
either by White Street or Second Avenue. They testified that
Mother and Father never accessed the old home place by
crossing the New Property.
permission, Respondents testified that to the extent Michael
drove across the New Property after he sold it to them in
1999, it was solely with their permission. When counsel asked
David on cross-examination if there was ever any discussion
with Michael about his use of the road, he stated:
A. He never come and asked me, no.
Q. He just used it?
Q. And he never asked you?
David also stated, "Even if he did come and discuss it
with me, I didn't have no problem letting him use cause I
know he had stuff to get move off there to get moved up to
his own homeplace." Further, when asked if any of his
brothers or family members ever used the property over his
objection to go across his land to get to the back of the new
home place, David responded, "no."
Michael was asked whether he ever asserted any ownership
interest in the road after he sold it, he responded,
A. I didn't have to assert it. He knowed that I would.
Q. He let you use it, right?
A. Well, yeah. Like I say, he never said that I couldn't.
. . . .
Q. Did you ever ask your brother if he would temporarily