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Teubert Family Farms, LLC v. Bragg

Supreme Court of Appeals of West Virginia

November 19, 2019

TEUBERT FAMILY FARMS, LLC, Petitioner
v.
KENNETH J. BRAGG and AIMEE S. BRAGG, Respondents

          Submitted: October 1, 2019

          Appeal from the Circuit Court of Greenbrier County The Honorable Robert E. Richardson, Judge Civil Action No. 15-C-195(B)

          Thomas W. White, Esq. Haley S. Hillen, Esq. Dinsmore & Shohl LLP Lewisburg, West Virginia Counsel for the Petitioner

          Barry L. Bruce, Esq. Barry L. Bruce & Associates, LC Lewisburg, West Virginia Counsel for the Respondents

         SYLLABUS

         1. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

         2. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

         3. "The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syl. Pt. 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

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

         5. "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).

          ARMSTEAD, JUSTICE.

         Petitioner Teubert Family Farms, LLC, ("Teubert Family Farms") appeals the April 19, 2018 order issued by the Circuit Court of Greenbrier County granting summary judgment to respondents Kenneth J. Bragg and Aimee S. Bragg (the "Braggs") on their adverse possession claim as to 9.21 acres ("Disputed Property"). On appeal, Teubert Family Farms argues that the circuit court erred by finding that the Braggs had met every element of adverse possession as a matter of law, despite the questions of fact pertaining to permissive use of the Disputed Property.

         Upon consideration of the parties' briefs and oral arguments, the submitted record, and the applicable authorities, this Court finds merit to Teubert Family Farm's arguments. Accordingly, the circuit court's final order is reversed, and this case is remanded for further proceedings.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 1995, Kenneth J. Bragg purchased approximately seventy-three acres of real estate in Greenbrier County ("Bragg Property").[1] The Bragg Property adjoined property owned by the Harris Export Coal Corporation (the "Corporation"), whose president and sole shareholder was John Brown Harris ("Mr. Harris"). Mr. Bragg did not commission a survey of his property when it was purchased, but he claims that in 1996, Mr. Harris told him that the property boundary line was determined by a "little timberline/big timberline" boundary, which reflected that certain portions of the property had been timbered, resulting in a little timberline, while other portions had not. Mr. Bragg also claims that Mr. Harris actually pointed to the boundary line. However, Mr. Harris does not recall this conversation.

         Mr. Bragg testified that he posted the Disputed Property in 1996. However, Mr. Harris does not recall seeing any "No Trespassing" or "No Hunting" signs. Mr. Bragg further testified that in 1997, he cleared and cultivated the Disputed Property and constructed ponds on the Disputed Property. At some point, Mr. Bragg asked Mr. Harris for permission to use his road and to hunt on what is now referred to as the Teubert Property, which permission Mr. Harris granted.[2] In addition to requesting permission for himself, Mr. Bragg requested permission for some of his ...


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