Joseph Michael Cantrell v. Jefferson David Cantrell

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term FILED
_______________ June 11, 2019
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 18-0181 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

JOSEPH MICHAEL CANTRELL, KAREN (CANTRELL) LEONARD,
CRAIG CANTRELL, and KIM (CANTRELL) MAY,
Petitioners Below, Petitioners

v.

JEFFERSON DAVID CANTRELL and LESLIE CHARLENE CANTRELL,
Respondents Below, Respondents

____________________________________________________________

Appeal from the Circuit Court of Mingo County
The Honorable John L. Cummings, Judge
Civil Action No. 15-C-55

AFFIRMED

____________________________________________________________

Submitted: February 13, 2019
Filed: June 11, 2019

C. Christopher Younger, Esq. M. Timothy Koontz, Esq.
Williamson, West Virginia Law Offices of M. Timothy Koontz
Counsel for the Petitioners Williamson, West Virginia
Counsel for the Respondents

CHIEF JUSTICE WALKER delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “‘‘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, 568 S.E.2d 32 (2002).

2. “‘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, 751 S.E.2d 747 (2013).

3. “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, 703 S.E.2d 561 (2010).

4. “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, 703 S.E.2d 561 (2010).

5. “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, 703 S.E.2d 561 (2010).

6. “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, 703 S.E.2d

561 (2010).

7. “‘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, 693 S.E.2d 800 (2010).” Syllabus Point 2,

Wilson v. Staats, 232 W. Va. 227, 751 S.E.2d 747 (2013).

8. “‘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, 693 S.E.2d 800

(2010).

9. “‘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, 693 S.E.2d 800 (2010).

10. “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, 693 S.E.2d 800 (2010).

11. “‘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, 153 S.E. 146 (1930).” Syllabus Point 5, Cobb v.

Daugherty, 225 W. Va. 435, 693 S.E.2d 800 (2010).

12. “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, 693 S.E.2d 800 (2010).

iv
WALKER, Chief Justice:

This 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)1 filed a petition for injunctive relief

against David (and his wife Leslie)2 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.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the 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

1
Petitioners are siblings Michael Cantrell, Karen (Cantrell) Leonard, Craig Cantrell
and Kim (Cantrell) May.
2
Respondents are David and Leslie Cantrell. David is the sibling of Michael, Karen,
Craig and Kim.

1
through 93 and 124 through 129 (the Cantrell Property).3 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

Avenue.4

Figure 1

3
Mother and Father obtained the lots in three separate purchases. Lots 127–129
were purchased in 1960. Lots 124–126 were purchased in 1963. Lots 88–93 were
purchased in 1973.
4
Figure 1 is a survey of the properties prepared by Dexter Branham, a professional
surveyor, that was introduced by Petitioners as an exhibit at trial. We reference this survey
to clarify the location of the various lots and alleged easement. Also, to avoid confusion,
we reference the various parcels of property and home sites discussed in this Opinion in
the same manner as the circuit court’s order and parties’ briefing.

2
 Before 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.

In 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.5 Petitioners Karen and Kim each now live in

Kentucky.

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

5
Although Respondents constructed their home on these lots in 1984, they did not
obtain actual title to the property until Father’s death in 2006.

3
owned by any member of the Cantrell family. After Michael’s purchase of these lots in

1991, he constructed a road across the lots. 6

In June 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.7 Indisputably, there was no

express easement burdening the New Property at the time Michael sold it to David.

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.

Michael 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

6
The parties disagree about where this road ended. Petitioners allege that the road
was built to access his then residence at the old home place on the Old Property. However,
Respondents contend that while there used to be a road on the New Property, it only went
up to the house that was previously on the property, not his residence on the Old Property.
Respondents maintain that the house on the New Property was torn down by Michael in
1991 and that Respondents excavated the property when they purchased it in 1999 and
removed that road to the prior house seat.
7
This is the location of Michael’s current home and it is not the subject of this case.

4
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.

Mother 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 August

2006.

At some 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.

5
 In 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.

In 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

6
their own on the New Property where the last one was located, this could not coexist with

the Petitioners’ claimed easement.

During 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.

As to 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?

A. Yes.

Q. And he never asked you?

A. No.

7
However, 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.”

When 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
allow you to use that?

A. No, sir.

Q. Why not?

A. Because he knowed when he bought the property that I
was going to use it and continued to use it and never said a
thing in the world about it.

8
 During the trial, the circuit court conducted a site view of the properties.8

While Petitioners alleged that they were landlocked, various maps and photographs were

introduced into evidence demonstrating that the Old Property is bordered on the north by

Second Avenue, a public road, which allows for vehicular access, and that there are stairs

to allow for pedestrian access from the road to the land. And, these maps and photographs

evidenced that the Old Property is bordered on the east by White Street, another public

road, which allows for both vehicular and pedestrian access to the Old Property. The

Petitioners’ testimony repeatedly acknowledged that there were alternate routes of ingress

to and egress from the Old Property. For example, the testimony in the record reveals that

Petitioners and Mother and Father would drive a motor vehicle up to the edge of the patio

of the new home place by way of a public road to unload groceries. As for pedestrian

traffic, Karen testified that people used the stairs along the sloped terrain.

At the conclusion of the parties’ evidence, the circuit court denied

Petitioners’ request for a permanent injunction finding that they did not have any easement

on or over Respondents’ property. Specifically, the court determined that (1) a prescriptive

easement did not exist because Petitioners traversed the New Property for purposes of

accessing the Old Property with Respondents’ permission, and alternatively, even if

Petitioners’ use of the land was not permissible, it was not sufficiently open and notorious;

8
However, the circuit court’s order does not contain any reference to the site view.

9
(2) Petitioners did not have an easement by express grant or reservation; and (3) an implied

easement did not exist because there was “no credible evidence of establishment of the

easement by prior use or a showing of reasonable necessity, as opposed to establishment

for convenience.” This appeal followed.9

II. STANDARD OF REVIEW

Regarding our standard of reviewing the refusal of a petition for permanent

injunction, this Court has held:

“‘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).[10]

Further, “[t]his 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

9
The court also dismissed Respondents’ counterclaim finding no evidence that the
use of “free water” for a number of years established a right to their perpetual use.
10
Syl. Pt. 1, Baisden v. W. Va. Secondary Schools Activities Comm., 211 W. Va.
725, 568 S.E.2d 32 (2002).

10
erroneous standard; conclusions of law are reviewed de novo.”11 With these standards as

guidance, this Court addresses Petitioners’ assignments of error.

III. ANALYSIS

Petitioners assert several assignments of error that, distilled to their essence,

present two issues for this Court to consider: (1) whether the circuit court abused its

discretion when it found that Petitioners failed to prove an easement by prescription; and

if not, alternatively, (2) whether the circuit court abused its discretion when it found that

Petitioners failed to prove an implied easement by necessity or prior use.

A. Prescriptive Easement

Petitioners first challenge the circuit court’s finding that they failed to prove

an easement by prescription. In syllabus point one of O’Dell v. Stegall,12 this Court set

forth the elements of a prescriptive easement:

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 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.
11
Syl. Pt. 1, Wilson v. Staats, 232 W. Va. 227, 751 S.E.2d 747 (2013) (quoting Syl.
Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996)).
12
226 W. Va. 590, 703 S.E.2d 561 (2010).

11
 Because easements by prescription “necessarily work losses or forfeitures of

the rights of others,” this Court has made it clear that “prescriptive easements are not

favored in the law.”13 So, “[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.”14 “‘[C]lear and

convincing’ is the measure or degree of proof that will produce in the mind of the factfinder

a firm belief or conviction as to the allegations sought to be established.”15

Petitioners contend that the testimony during trial neither supports the court’s

findings that Petitioners’ use of the New Property was permissive, rather than adverse, for

the requisite period, nor supports the finding that the use was not sufficiently open and

notorious as the roadway/easement is in plain view of Respondents’ home. Specifically,

Petitioners allege that David’s testimony is not credible in light of the allegedly untruthful

and contradictory statements he made regarding the permissibility of Petitioners’ use of the

alleged easement. Petitioners contend that in their initial affidavit supporting their

memorandum in opposition to the petition for injunctive relief, Respondents stated that

“we never prevented the Petitioners from using the property and if he did use it, it was with

13
Id. at 608–09, 703 S.E.2d at 579–80 (quoting Zimmerman v. Newport, 416 P.2d
622, 629 (Okl. 1966)).
14
Id. at Syl. Pt. 3.
15
Id. at 608, 703 S.E.2d at 579 (quoting Brown v. Gobble, 196 W. Va. 559, 564,
474 S.E.2d 489, 494 (1996)).

12
our permission.” However, this was later contradicted by David. When asked by his

counsel whether he let Michael and his other brother use the road crossing his property,

David stated “I never did---I mean, they never come and ask me.” When later asked if

there was ever any discussion about the use of the road, David said, “He never come and

asked me, no.” Petitioners argue that in light of the supposed untruthfulness of

Respondents’ testimony and the obvious animosity between the parties, the Court should

find there was no permission or familial accommodation granted by Respondents.

Petitioners also take issue with the fact that Respondents denied the existence of any

roadway across the New Property and allege that because of this, any use of the roadway

must have been adverse.

Respondents counter that there is evidence in the record to support the court’s

factual finding that Petitioners traversed the New Property with the Respondents’

permission to access the Old Property. Respondents contend they tacitly authorized the

Petitioners to cross the New Property as a familial gesture because, given the family

relations between the parties, it would have been “completely odd and out of character to

affirmatively tell a sibling that they could cross your land.” Respondents also maintain

that Petitioners have not demonstrated that such permission was revoked more than ten

years ago, so as to satisfy the statutory period needed for a prescriptive easement.

13
 With respect to the element of adverse use, we stated in O’Dell that:

[i]n 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.[16]

In defining adverse use, we also explained:

[i]n 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 by
resorting to the law.[17]

Further, “a use of another’s land that began as permissive will not become

adverse unless the license (created by the granting of permission) is repudiated.”18 And,

“[t]he burden of proving adverse use is upon the party who is claiming a prescriptive

easement against the interests of the true owner of the land.”19 “Whether the use is hostile

or is merely a matter of neighborly accommodation . . . is a question of fact to be

16
Id. at Syl. Pt. 4.
17
Id. at Syl. Pt. 5. (emphasis added).
18
Id. at Syl. Pt. 6, in part.
19
Id. at Syl. Pt. 7, in part.

14
determined in light of the surrounding circumstances and the relationship between the

parties.”20

We explained in O’Dell that “[p]ermission may be inferred from the

neighborly relation of the parties, or from other circumstances.” 21 In examining what

constitutes adverse use, we reasoned that even if the property owner has not given explicit

permission, any use made in subordination to the property owner is not adverse. 22 We

stated that “‘subordination’ means that the property owner is acting with authorization,

express or implied, from the landowner, or acting under a right that is derivative from the

landowner’s title.”23 And, we noted that the reason that a use made in subordination to the

property owner is not adverse

. . . is that the property owner is not put on
notice of the need to take steps to protect against
the establishment of prescriptive rights. To
express the idea that an adverse use cannot be in
subordination to the rights of the owner, it is
frequently said that the use must be made under
claim of right. This does not mean that the user
must claim entitlement to a servitude or show
color of title, as sometimes mistakenly asserted,

20
Warsaw v. Chi. Metallic Ceilings, Inc., 676 P.2d 584, 588 (Cal. 1984) (citations
omitted).
21
O’Dell, 226 W. Va. at 613, 703 S.E.2d at 584 (quoting 4 Powell on Real Estate,
§ 34.10[2][a]).
22
Id. at 614, 703 S.E.2d at 585 (quoting Restatement (Third) of Property
(Servitudes), § 2.16, cmt. f)).
23
Id.

15
 but merely that the user must not act in such a
way as to lead the owner to believe that no
adverse claim is asserted. Use under claim of
right may also mean that the user acts as the
owner of a servitude would act, as opposed to the
way a casual trespasser would act.

Restatement (Third) of Property (Servitudes), § 2.16, cmt. f.[24]

We also stated that “[u]ses ‘made in subordination to the property owner’ include uses by

someone closely related by blood, a co-tenant, a licensee, or holder of some other type of

easement or servitude. Because these uses are essentially authorized by the property

owner, the use is not adverse.”25

When we apply O’Dell to the facts in this case, we find no error in the circuit

court’s determination that Petitioners did not establish a prescriptive easement. In its

findings of fact, the circuit court found that (1) Petitioners testified that “numerous persons

routinely traversed Lots 84 through 87 by using the alleged easement for ingress and egress

between Varney Street and the Old Property for as long as they could remember[;]” (2)

Respondents testified that “numerous people routinely accessed the Old Property with their

vehicles either by White Street or Second Avenue” and that “Mother and Father never

accessed the old home by crossing the New Property[;]” and (3) Respondents also testified

24
Id. See also Restatement (Third) of Property (Servitudes), § 2.16 cmt. g (such
implied permission “rests on the perceptions that Americans are both neighborly and
litigious, so that an unauthorized use would have been objected to”).
25
Id. (footnote omitted) (emphasis added).

16
that “to the extent that [Michael] traversed the New Property after June 1999, it was solely

with their permission. Michael testified that David ‘knew when he bought my property

that I used it. We had an agreement there.’”

The Circuit Court denied the Petitioners’ prescriptive easement claim on two

grounds: (1) the Petitioners’ use was not adverse but rather permissive and, alternatively,

(2) the Petitioners’ use was not sufficiently open and notorious. Concluding that the first

and third elements of a prescriptive easement had not been met, the court stated:

to the extent that the Petitioners traversed the New Property for
purposes of accessing the Old Property, the Petitioners did so
with the Respondents’ permission. Therefore [sic], even if the
Petitioners’ use of the Respondents’ land was not permissible,
because such use was not sufficiently open and notorious, the
Petitioners’ alleged prescriptive easement nevertheless fails.

While Petitioners assert that the circuit court improperly considered the

alleged false testimony and sworn statements of Respondents regarding historical use of

the easement, this Court has made it clear that a trial court’s determinations regarding

witness credibility are accorded great deference.26 Although the circuit court’s findings of

26
In re Faith C., 226 W. Va. 188, 195, 699 S.E.2d 730, 737 (2010) (“[W]hen
findings are based on determinations regarding the credibility of witnesses, Rule 52(a)
demands even greater deference to the trial court’s findings. . . . Deference is appropriate
because the trial judge was on the spot and is better able than an appellate court to decide
whether the error affected substantial rights of the parties.”); State v. Guthrie, 194 W. Va.
657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (“An appellate court may not decide the
credibility of witnesses or weigh evidence as that is the exclusive function and task of the
trier of fact. It is for the jury to decide which witnesses to believe or disbelieve. Once the
17
fact observe that “Michael testified that David ‘knew when he bought my property that I

used it. We had an agreement there[,]’” we are unable to locate this specific statement in

the record. Nonetheless, when we observe the familial relationship of the parties coupled

with Michael’s testimony that David knew when he bought the property that Michael “was

going to use it and continued to use it and never said a thing in the world about it,” it is

evident that implied permission existed. Because there is a reasonable basis in the record

to find that the Petitioners crossed the Respondents’ land with the Petitioners’ implied

permission, we cannot say that the circuit court abused its discretion in finding that

Petitioners failed to establish a prescriptive easement.27

B. Implied Easement

Petitioners alternatively assert that even if this Court determines that they

had not established a prescriptive easement over the New Property, the circuit court erred

in failing to conclude that they had proven that an implied easement existed.

jury has spoken, this Court may not review the credibility of the witnesses.” (citation
omitted)).
27
Because we affirm the circuit court’s ruling on this element and conclude that
Petitioners failed to establish a prescriptive easement, we need not address their arguments
regarding the remaining elements. See O’Dell at Syl. Pt. 3 (“the failure to establish any one
element is fatal to the claim.”).

18
 (1) Easement Implied by Necessity

“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’).”28

We have repeatedly stated that “[t]he law does not favor the creation of easements by

implied grant or reservation.”29 So, “[c]ourts must be very careful before decreeing upon

one man’s land in favor of another without compensation such an encumbrance as a way,

permanently impairing that man’s dominion and ownership, which next to life and liberty,

is the most valuable of rights inhering in the citizen.”30 With these concerns in mind, we

have held that “[t]he burden of proving an easement rests on the party claiming such right

and must be established by clear and convincing proof.”31

As we explained in Cobb v. Daugherty,32

An easement implied by necessity arises when the owner of a
unified tract of land severs the tract into two (or more) smaller

28
Syl. Pt. 2, Wilson v. Staats, 232 W. Va. 227, 751 S.E.2d 747 (2013) (quoting Syl.
Pt. 3, Cobb v. Daugherty, 225 W. Va. 435, 693 S.E.2d 800 (2010)).
29
Cobb at Syl. Pt. 1 (quoting Syl. Pt. 1, Stuart v. Lake Washington Realty, 141
W.Va. 627, 92 S.E.2d 891 (1956)).
30
Wilson at 231, 751 S.E.2d at 751 (quoting Cobb, 225 W. Va. at 442, 693 S.E.2d
at 807).
31
Cobb at Syl. Pt. 2 (quoting Syl. Pt. 1, Berkeley Development Corp. v. Hutzler,
159 W.Va. 844, 229 S.E.2d 732 (1976)).
32
225 W. Va. 435, 693 S.E.2d 800.

19
 parcels, and then conveys one of those parcels that is of such a
nature and extent that either the parcel conveyed or the parcel
retained is landlocked, and either entirely surrounded by the
land from which it is severed, or by this land and the land of
strangers. Our law is clear that, in such cases, the owner of the
landlocked parcel implicitly receives a right of way—a way of
necessity—across the other tract of land.[33]

In Cobb, we articulated the following requirements for proving an easement

by necessity:

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
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.[34]

In observing that the last two elements of whether the easement was “strictly

necessary” at the time of severance and whether the necessity continues to exist had

produced confusion and uncertainty in our prior case law, we clarified this issue by holding

that

for a party to establish an easement implied by necessity (that
is, to establish a way of necessity), the party must show that the
easement across the servient estate is strictly necessary to the
productive, beneficial, economical or physical use of the
dominant estate. Mere convenience, or even reasonable
necessity are insufficient. If there is an alternate route, even if
more difficult or more expensive to use, then no easement is
33
Id. at 443, 693 S.E.2d at 808.
34
Id. at Syl. Pt. 4.

20
 implied by necessity. An easement by necessity is implied only
where any other route would be practicably or economically
impossible.[35]

We stated that one reason courts have required parties to show an easement

is implied by strict necessity is to prohibit “the imposition of a burden upon an estate for

the mere convenience of another estate. Stated otherwise, it may be said that the necessity

required is one of economical or physical use of the land and not merely an advantageous

use of the land.”36 But, the more important reason that courts have required a showing of

strict necessity for an easement is that, in many cases, “it is the grantor or seller of the

disputed servient estate who is seeking to impose the easement, to the detriment of the

grantee or buyer.”37 So, “a grantor should only rarely be allowed to derogate from his or

her explicit deed and, by implication, take back from the grantee a way of ingress or

egress.”38 And, “[i]f one has a reasonable outlet over his own property, he cannot exact a

more convenient way as of necessity over the premises of another.”39

35
Id. at 446, 693 S.E.2d at 811 (emphasis added).
36
Id. at 445, 693 S.E.2d at 810 (citing Payne v. Edmonson, 712 S.W.2d 793, 796
(Tex.App. 1986)).
37
Id.
38
Id.
39
Id. at Syl. Pt. 5 (quoting Syl. Pt. 2, Dorsey v. Dorsey, 109 W.Va. 111, 153 S.E.
146 (1930)).

21
 Petitioners contend that the conveyance of Lots 88–93 to Respondents in

2006, along with their purchase of the New Property in 1999, effectively landlocked Lots

127–129 from vehicular access, as the only possible vehicular access to Lots 127–129 is

from First Street and/or Varney Street. Petitioners argue that prior to the 2006 conveyance

of Lots 88–93, Mother still owned a means of access to Lots 127–129 from First Street

through Lot 88, having allowed Respondents to construct a residence on Lots 89–91 and

part of Lot 88. Petitioners admit that Mother never owned the New Property and “could

not claim a right to an easement over said lots since she had an alternate means of access

through the lots conveyed to [David] in 2006.” Rather, they contend that after conveying

Lots 88–93 to her son in 2006, Mother (and now her heirs) required an easement through

those lots conveyed in 2006, in order to access the retained Lots 127–129 and use and enjoy

them.40

40
It is apparent from the briefing and the circuit court’s order that both the
Respondents and the circuit court may have confused the Petitioners’ intention to seek an
alternative implied easement across Lot 88, as both reference the New Property (Lots 84–
87 and 130–133) when discussing the Petitioners’ claim for an implied easement. In its
order, the circuit court made the following factual finding: “In March 2015, the instant
lawsuit ensued, wherein the Petitioners seek to establish an easement for vehicular ingress
and egress across the New Property for the benefit of the Old Property, either by
prescription or implication.” (emphasis added). Because the New Property was never
owned by Mother and Father, there was no unity of ownership of the dominant estate (the
Old Property) and the servient estate (the New Property). See Derifield v. Maynard, 126
W. Va. 750, 754, 30 S.E.2d 10, 12 (1944). (“A way of necessity usually arises where there
is a conveyance of a part of a tract of land of such nature and extent that either the part
conveyed or the part retained is entirely surrounded by the land from which it is severed or
by this land and the land of strangers.”) So, Petitioners may only seek an implied easement
by necessity over the lots previously owned by Mother and Father, Lots 88–93.
22
 Petitioners assert that the testimony was that Craig Cantrell intended to

construct a residence upon Lots 128–129. They argue that while Respondents assert that

they could access Lots 127–129 (former location of the old home place) through the front

yard of Lots 124–126 (location of the new home place), without an easement for access,

the supplies and equipment necessary for construction cannot be moved there, as there is

no means of access from Second Avenue (the area above Lots 128–129 is too steep and

rocky for vehicle access) nor through the yard of Lots 124–127 from White Street (the

septic systems are located on these lots, and there is no space available to relocate them).41

Petitioners assert that the circuit court made no finding that Lots 128–129 could be

accessed from Second Avenue or White Street, and that it was evident from the circuit

court’s site view that there was no access from either. Petitioners contend that all elements

necessary to establish an easement by implication through reasonable necessity were

proven by clear and convincing evidence, as the 2006 transfer of real property by Mother

to David left her no means of vehicular access to Lots 127–129 and therefore no ability to

construct a new residence upon the same (its intended purpose at purchase and prior use).

While the circuit court discussed the requisite legal standards for proving

both an implied easement by “necessity,” and an implied easement “by prior use,” it did

Nonetheless, this has no bearing on the circuit court’s determination that Petitioners failed
to offer credible evidence that a reasonable necessity for any implied easement existed.
41
Petitioners allege that the septic systems pre-existed the deed to Respondents of
Lots 88–93 in 2006 and the construction of their residence in 1985.

23
not make any factual or legal conclusions regarding the specific issue of whether

Petitioners established that an implied easement by necessity existed. The only finding the

circuit court made regarding Petitioners’ claim for implied easement was for that of

“easement by prior use,” where the circuit court summarily concluded that “[t]here has

been no credible evidence of establishment of the easement by prior use or a showing of

reasonable necessity, as opposed to establishment by [sic] for convenience.”

Petitioners argue that, in denying that an implied easement existed, the court

should have made findings “establishing that Petitioners have a means of access other than

across the real property of the Respondents[.]” Conversely, Respondents argue that if the

court were required to make a finding regarding alternative access, it implicitly did so by

finding that there was no credible evidence of reasonable necessity. Although the circuit

court’s order lacks factual and legal findings on the issue of strict necessity, “[t]his Court

has, on prior occasions, recognized that when we are able to resolve issues before the Court

without a detailed order, it is not necessary to remand for the circuit court to provide

24
findings of fact and conclusions of law.”42 We conclude that the record in this particular

case is sufficient for purposes of appellate review.43

In this case, Petitioners have not proven that a strict necessity for the alleged

implied easement exists. The evidence indicates that the Old Property is bordered on the

north by Second Avenue, a public road, which allows for vehicular access, and there are

stairs to allow for pedestrian access from the road to the land. And, the Old Property is

bordered on the east by White Street, another public road, which allows for both vehicular

and pedestrian access to the Old Property. The Petitioners’ testimony repeatedly

acknowledged that there were alternate routes of ingress to and egress from the Old

Property. For example, there was testimony by multiple witnesses that Petitioners and

Mother and Father would drive a motor vehicle up to the edge of the patio of the new home

place by way of a public road in order to unload groceries. As for pedestrian traffic, Karen

testified that persons used stairs along the sloped terrain. Although there was evidence

42
River Riders, Inc. v. Steptoe, 223 W.Va. 240, 250, 672 S.E.2d 376, 386 (2009)
(citing Pruitt v. West Virginia Dept. of Public Safety, 222 W.Va. 290, 295, 664 S.E.2d 175,
180 (2008) (this Court is able to resolve the issues before us without a detailed order and
thus have no reason to remand for the circuit court to provide findings of fact and
conclusions of law)); Fayette County National Bank v. Lilly, 199 W.Va. 349, 353–54, 484
S.E.2d 232, 236–37 (1997)) (same); Toth v. Board of Parks and Recreation Com’rs, 215
W.Va. 51, 55, 593 S.E.2d 576, 580 (2003) (same); Ward v. Cliver, 212 W.Va. 653, 656,
575 S.E.2d 263, 266 (2002) (same).
43
Because the court found that petitioners failed to establish the lesser standard of
reasonable necessity in assessing the issue of easement by prior use, for purposes of our
review, we determine that the court implicitly determined that petitioners failed to establish
the greater standard of strict necessity.

25
presented that the stairs are no longer in good repair, Respondents contend, and we agree,

that the Petitioners’ subsequent actions created and/or permitted this access point to be lost.

It is well-established that “[t]he necessity on which the claimant relies cannot be self-

created[.]”44 Because Petitioners created their own hardship, any claim for an easement by

necessity is precluded.45

More importantly, although Petitioners assert that the easement is necessary

to build or construct a dwelling, our law clearly requires that a strict necessity must have

existed “at the time of the severance.”46 So, the Petitioners’ future plans to build a

residence are irrelevant to a determination of whether a necessity existed when they

inherited Lots 128–129. Further, regardless of the degree of necessity that is shown, our

cases are clear that once the necessity ceases to exist, the way of necessity likewise ceases

44
See Bruce & Ely, The Law of Easements and Licenses in Land § 4:22 (2019 ed.)
(citing O’Hara v. Chicago Title & Trust Co., 450 N.E.2d 1183, 1189–90 (Ill. App. Ct.
1983)).
45
Further, Respondents correctly contend that although the Petitioners assert that
the alternative means of access are too steep and rocky for vehicular access, “the fact that
the existing way is steep or narrow, or can be made available only by the expenditure of
money or labor, . . . has been held not to justify a finding of a way of necessity.” 3 Tiffany
Real Prop. § 794 (3d ed.) (footnotes omitted). See Dorsey v. Dorsey, 109 W. Va. 111, 112–
13, 153 S.E. 146, 147 (1930) (holding that landowner failed to establish reasonable
necessity where a tract of land bordered on a public road, but landowner’s access to the
public road was “precipitous” and owner sought to use a path across adjoining lot to haul
timber on the basis that building his own access would entail expense.).
46
See Cobb at Syl. Pt. 4 (“at the time of the severance, the easement was strictly
necessary for the benefit of either the parcel transferred or the parcel retained”).

26
to exist.47 Although Petitioners claim a necessity to access the site of the old home place

on Lots 128–129, any such necessity no longer exists because any necessity to access the

old home place ceased when it was razed. Accordingly, Petitioners failed to establish an

implied easement by necessity.

(2) Easement Implied by Prior Use

Petitioners also contend that the circuit court erred in concluding that there

was no credible evidence to establish an implied easement by a showing of reasonable

necessity.48 Under West Virginia law:

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

47
See Berkeley Dev’t Corp. v. Hutzler, 159 W.Va. 844, 851, 229 S.E.2d 732, 736
(1976) (“A way of necessity having been created by implication for the benefit of the
grantee of the dominant estate or his successors, thereafter, it cannot be extinguished so
long as the necessity continues to exist.”)
48
Petitioners’ fourth assignment of error mistakenly asserts that “the circuit court
erred in concluding that there was no credible evidence to establish a prescriptive easement
by a showing of reasonable necessity.” (emphasis added). Giving Petitioners the benefit
of the doubt, we interpret this assignment of error to read that “the circuit court erred in
concluding that there was no credible evidence to establish an implied easement by
reasonable necessity.” So, we will discuss the circuit court’s conclusion that there was “no
credible evidence of establishment of the easement by prior use or a showing of reasonable
necessity, as opposed to establishment by [sic] for convenience.”

27
 easement was necessary at the time of the severance for the proper and
reasonable enjoyment of the dominant estate.[49]

Clearing up the meaning of the term “necessary” in our definitions of

easements implied by prior use, we stated that “the requisite degree of necessity is

‘reasonable necessity,’ that is, the easement is ‘necessary for the convenient and

comfortable enjoyment of the property as it existed when the severance was made[.]’”50

So, we held that

[W]hen a party seeks to establish the existence of an easement
implied by a prior use, the party must show the easement was
not merely convenient to the enjoyment of the dominant estate,
but (1) was important and reasonably necessary to the use of
the dominant estate at the time the dominant and servient
estates were severed; (2) that another access could not have
been substituted at a reasonable expense; and (3) that without
the easement there can be no other reasonable means of using
the dominant estate.[51]

Here, Petitioners presented no clear and convincing evidence that there was

an apparent and obvious pre-existing use of Lots 88–93. As discussed above, the Old

Property is adjacent to public roads that allow for both vehicular and pedestrian access and

there were stairs that allowed for pedestrian access along sloped terrain. Accordingly, we

49
Cobb at Syl. Pt. 6.
50
Id. at 448, 693 S.E.2d at 813 (citation omitted).
51
Id. at 449, 693 S.E.2d at 814.

28
cannot state that the circuit court abused its discretion in determining that Petitioners failed

to establish an implied easement by prior use.52

C. Attorney’s Fees

Respondents assert that Petitioners’ appeal is wholly without merit,

especially in view of the applicable standard of review on appeal, and must be deemed

vexatious, oppressive, and otherwise brought in bad faith. So, Respondents urge this Court

to order the Petitioners to pay the Respondents’ costs and expenses incurred in this appeal,

including, but not limited to, reasonable attorney’s fees.53 We decline to find that

Petitioners have acted in bad faith, vexatiously, wantonly or for oppressive reasons in the

filing of this appeal. So, Respondents’ request for attorney’s fees is denied.

52
Petitioners make numerous contentions that the circuit court failed to mention
and/or consider various pieces of evidence and testimony, including the site view it
conducted of the property. However, we accord these assertions scant merit. The circuit
court is under no obligation to discuss each and every piece of evidence presented at trial.
This Court has held that “if the record does not reveal an error, a court will conclude that
one does not exist: ‘It will be presumed, where the record is silent, that a court of competent
jurisdiction performed its duty in all respects as required by law.’” State ex rel. Kaufman
v. Zakaib, 207 W. Va. 662, 671, 535 S.E.2d 727, 736 (2000) ((citations omitted)).
53
“As a general rule each litigant bears his or her own attorney’s fees absent a
contrary rule of court or express statutory or contractual authority for reimbursement.” Syl.
Pt. 1, Corp. of Harpers Ferry v. Taylor, 227 W. Va. 501, 711 S.E.2d 571 (2011) (quoting
Syl. Pt. 2, Sally-Mike Props. v. Yokum, 179 W. Va. 48, 365 S.E.2d 246 (1986)). However,
“[t]here is authority in equity to award to the prevailing litigant his or her reasonable
attorney’s fees as ‘costs’ without express statutory authorization, when the losing party has
acted in bad faith, vexatiously, wantonly or for oppressive reasons.” Id. at Syl. Pt. 2
(quoting Sally-Mike Props. at Syl. Pt. 3).

29
 IV. CONCLUSION

For these reasons, we affirm the circuit court’s January 29, 2018 order

refusing Petitioners’ request for injunctive relief.

Affirmed.

30