IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term
_______________ FILED
November 19, 2019
No. 18-0411 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
TEUBERT FAMILY FARMS, LLC,
Petitioner
V.
KENNETH J. BRAGG and AIMEE S. BRAGG,
Respondents
____________________________________________________________
Appeal from the Circuit Court of Greenbrier County
The Honorable Robert E. Richardson, Judge
Civil Action No. 15-C-195(B)
REVERSED AND REMANDED
____________________________________________________________
Submitted: October 1, 2019
Filed: November 19, 2019
Thomas W. White, Esq. Barry L. Bruce, Esq.
Haley S. Hillen, Esq. Barry L. Bruce & Associates, LC
Dinsmore & Shohl LLP Lewisburg, West Virginia
Lewisburg, West Virginia Counsel for the Respondents
Counsel for the Petitioner
JUSTICE ARMSTEAD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
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.
i
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).
ii
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
1
In 2013, Mr. Bragg conveyed the property to himself and Mrs. Bragg jointly.
1
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 friends and family to also hunt
on the Teubert Property, but Mr. Harris refused this request as to everyone other than Mr.
Bragg’s brother.
On June 11, 2012, Teubert Family Farms purchased 652.69 acres from the
Corporation (“Teubert Property”). The Teubert Property adjoins the Bragg Property, and
2
During his deposition, Mr. Bragg initially testified that he requested permission to
use the road over the Harris property around 2000-2001. However, later in his deposition,
Mr. Bragg testified that he requested permission to use the road across Mr. Harris’ property
in the early spring of 1996, and the conversation in which he requested permission to hunt
on the Teubert Property occurred after the conversation regarding the road. In their motion
for summary judgment, the Braggs state that Mr. Bragg misstated the date of permission
during his deposition, and he corrected those statements on an Errata Sheet advising that
the conversation occurred in 2000-2001. Although Mr. Harris mentioned conversations
about the permission he granted to the Braggs in his Affidavit and his deposition, there is
no mention of the dates on which such permission was granted. Mrs. Bragg testified to only
having one conversation with Mr. Harris when she was introduced to him during the time
frame between 1996-2000. However, she was not present for any conversations regarding
the type of permission Mr. Harris granted to use his property.
2
the Disputed Property was included in the metes and bounds description of the Teubert
Property when it was purchased in 2012. At some point after Teubert Family Farms
purchased the Teubert Property, a dispute arose between the parties as to the ownership of
the Disputed Property. Both parties believed that they owned the Disputed Property. In
2013, the Braggs had their property surveyed, and this survey revealed that the Disputed
Property was not included in their 1995 deed description. In 2014, the Braggs
commissioned another survey of the Disputed Property.
After obtaining the second survey, the Braggs recorded a general warranty
deed dated October 9, 2015, purporting to convey title of the Disputed Property listing
themselves as both grantor and grantee. On November 16, 2015, Teubert Family Farms
filed its Complaint against the Braggs. The Complaint sought to quiet title, requested
injunctive relief, and alleged slander of title. On December 22, 2015, the Braggs filed their
answer and counterclaim. Both Teubert Family Farms and the Braggs filed motions for
summary judgment. A hearing on the parties’ cross-motions for summary judgment was
held on August 7, 2017. By order entered on April 19, 2018, the circuit court granted
summary judgment to the Braggs. The circuit court found:
9. While there was permission granted to use the entirety of
the Teubert Property for a specific purpose (i.e., hunting), the
Defendants used and occupied the Disputed Property for
purposes well beyond any for which permission had been
granted. In posting, clearing, cultivating, seeding, and mowing
the Disputed Property, and in constructing a pond upon the
Disputed Property, the Defendants possessed the Disputed
Property in a manner that was clearly against the right of the
true owner and inconsistent with the title of the true owner.
The use of the Disputed Property for these purposes was not
3
permissive, and such use satisfies the “hostility” element of an
adverse possession claim to the Disputed Property. The
permission granted to the Defendants to hunt upon the entirety
of the Teubert Property does not negate the adverse and hostile
nature of the Defendants’ use and possession of that portion of
the Teubert Property included within the Disputed Property.
12. Based upon the undisputed facts in this action, the
Defendants satisfied every element required of an adverse
possession claim, including the ten-year statutory period, no
later than 2007, while Harris Export Coal Corporation was the
record owner of the Teubert Property. Title to the Disputed
Property was therefore vested in the Defendants not later than
2007, at which time Harris Export Coal Corporation was
disseized of its title to the same.
This appeal by Teubert Family Farms followed.
II. STANDARD OF REVIEW
On appeal, “[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). Pursuant to
Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment should be
awarded “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” It is well
established that “[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). “The circuit court’s function
4
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).
“[W]e must draw any permissible inference from the underlying facts in the
most favorable light to the party opposing the motion.” Williams v. Precision Coil, Inc.
194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995). In assessing the factual record, we must
grant the nonmoving party the benefit of inferences, as
“[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge … [s]ummary judgment should
be denied even where there is no dispute as to the evidentiary
facts in the case but only as to the conclusions to be drawn
therefrom.”
Id. (internal quotations and citations omitted).
As this Court has previously noted, “the party opposing summary judgment
must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and
must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s
favor.” Williams v. Precision Coil, 194 W.Va. at 60 459 S.E.2d at 337. We will now
examine whether the circuit court erred in granting summary judgment to the Braggs.
III. ANALYSIS
This matter involves our law on adverse possession. By way of background,
we note that “[t]he doctrine of adverse possession is firmly established in our property law
and accompanies W.Va. Code 55-2-1 [1923] in settling land disputes equitably and
efficiently.” Naab v. Nolan, 174 W.Va. 390, 392, 327 S.E.2d 151, 153 (1985).
5
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)). “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). “This doctrine enables one who has been
in possession of a piece of real property for more than ten years to bring an action asserting
that he is now the owner of that piece of property even when title rests in another.” Naab,
174 W.Va. at 392, 327 at 153-154.
Cross-motions for summary judgment were filed in this case. Teubert
Family Farms argued that the Braggs did not possess the Disputed Property “adversely” or
“hostilely.”3 The Braggs argued that they met all of the elements of adverse possession
because the permission that had been given by Mr. Harris was not for the specific activities
that they performed on the Disputed Property.
3
In its motion for summary judgment, Teubert Family Farms also argued that the
Braggs did not have exclusive possession of the Disputed Property. This argument was
not included by Teubert Family Farms in its assignments of error, and thus will not be
addressed.
6
For the element of “hostile” or “adverse” possession, the party claiming
adverse possession must show that their possession of the property was against the right of
the true owner and was inconsistent with the title of the true owner. “The word ‘hostile’ is
synonymous with the word ‘adverse’ and need not and does not import that the disseisor
must show ill will or malevolence to the true owner.” Somon, 160 W.Va. at 90, 232 S.E.2d
at 528. This Court has recognized that permission, in the context of both adverse
possession and prescriptive easements, can be express or implied. See Fantasia v.
Schmuck, 183 W.Va. 361, 395 S.E.2d 784 (1990) and O’Dell v. Stegall, 226 W.Va. 590,
703 S.E.2d 561 (2010). In Fantasia, this Court noted “[I]f the use of the land in dispute is
permissive, the element of hostility or adversity is negated.” 183 W.Va. at 363, 395 S.E.2d
at 786. In the context of prescriptive easements, this Court noted “[p]remission may be
inferred ‘from the neighborly relation of the parties, or from other circumstances.’” O’Dell,
226 W.Va. at 613, 703 S.E.2d at 584 (quoting 4 Powell on Real Estate, § 34.10[2] [a]). In
the context of prescriptive easements, this Court has previously stated:
Easements by prescription are not favored in the law, because
they essentially reward a trespasser and allow the taking of
another’s property without compensation. It this modern age,
it does little to encourage civility between neighbors to have a
rule whereby a landowner, who allows his neighbor to use
some part of his land, runs the risk that the use may
transmogrify into a legally-binding prescriptive use merely by
the passage of time. Such a rule, as this case demonstrates,
encourages expensive litigation between neighbors to either
obtain some legal injunction to stop the use of the land, or
obtain a legal ruling definitely establishing an easement.
Worse, such a rule might impel neighbors to resort to
aggressive, extra-legal acts in defense of their property.
7
O’Dell, 226 W.Va. at 614-615, 703 S.E.2d at 585-586.
It is undisputed that Mr. Bragg had been given express permission by Mr.
Harris to perform various activities on the Tuber Property. Mr. Harris admitted to giving
Mr. Bragg permission to use the roads and to hunt on the Tuber Property.4 In addition, Mr.
Harris gave Mr. Bragg permission to install a combination lock for his use on the access
gate to the Tuber Property. Mr. Harris also stated that “Mr. Bragg had permission to use
that portion of the Tuber Property that he now asserts to own via adverse possession.” It
is also undisputed that the Braggs used the Disputed Property for purposes other than those
for which express permission had been given. In granting summary judgment to the
Braggs, the circuit court found that the Braggs posted, cleared, cultivated, seeded and
mowed the Disputed Property, and also constructed ponds on the Disputed Property. The
circuit court found that these additional uses were not permissive and as such, those
additional uses satisfied the “hostility” element of the adverse possession claim. The
circuit court’s order referred to “permission,” but it did not differentiate between express
and implied permission.
The Braggs filed fourteen affidavits which they argue contradict the affidavit
of Mr. Harris.5 However, the affidavits filed on behalf of the Braggs do not directly address
4
These admissions were made in Mr. Harris’ affidavit, which was executed on May
9, 2016.
5
Mr. Bragg testified that his attorney prepared the affidavits, and they were
executed at two meetings (one in Bingham and one in Ansted). All of the affidavits contain
8
the issue of permission. Despite the fact that all of the affiants attest to having witnessed
Mr. Bragg performing certain tasks on the Disputed Property such as building a pond6 and
fencing the property, they do not provide any specific information about these tasks. For
example, each of the affiants attest to having witnessed Mr. Bragg “fence the property,”
but it is not clear what is meant by fencing. According to the deposition testimony of Mrs.
Bragg, she believed that her husband fenced the property sometime in the 1990s, and she
thought that the fencing material was wire or rails. She further testified that the purpose of
this fence was to establish a boundary, and she was emphatic in her recollection that the
fence encompassed the ponds. However, according to the deposition testimony of Mr.
Bragg, he did not install any type of fencing (metal or otherwise) until at least 2013.7
Further, at least one affiant attested in one paragraph to witnessing Mr. Bragg maintain
“exclusive control of said property for at least ten years.” However, the same affiant
marked through another paragraph that stated that there is “no question that Mr. Bragg has
had exclusive control over the property for at least ten years prior to June 11, 2012.” The
the same nine numbered paragraphs, and all of the affidavits have the same handwritten
changes to paragraph numbers 5 and 7.
6
In paragraph number 5 of the affidavits, the affiants state that they “have known”
that Mr. Bragg built “ponds,” but in the following paragraph most affiants state that they
witnessed Mr. Bragg build “a pond.”
7
Mr. Bragg testified that he posted signs in 1996, and he considered the posted signs
a fence.
9
affidavits filed by the Braggs do not provide any information about when or how often
each of the affiants visited the Disputed Property.8
The circuit court found that the Braggs had satisfied “every element required
of an adverse possession claim, including the ten-year statutory period, no later than 2007.”
This finding implies that the statutory period ran from 1997 – 2007. The circuit court
addressed the issue of permission by noting that the Braggs had been granted permission
to use the entirety of the Tuber Property for hunting, but then found that the Braggs “used
and occupied the Disputed Property for purposes well beyond any for which permission
had been granted.”9
We find that the circuit court erred by finding no material question of fact
was in dispute as to whether the Braggs satisfied every element required of an adverse
possession claim. Numerous material factual disputes are present in this case, including 1)
8
Mrs. Bragg testified that she has not personally visited the Disputed Property since
2009. Many of the affiants are family members of Mrs. Bragg, either by blood or marriage,
including her mother, sister, brother in law, aunt, and uncle, and it is unclear when these
affiants visited the property to witness these acts and obtain the information contained in
their affidavits.
9
At least one of the uses that the circuit court relied upon in concluding that the
Braggs had satisfied the “hostility” element of the adverse possession claim remains a
question of fact. The circuit court ruled that the Braggs had posted the Disputed Property,
but the testimony regarding what was meant by “posting” or “fencing” is unclear. As has
previously been noted, Mr. Bragg considered posted signs a fence. None of the Braggs’
affidavits refer to posted signs, but all of the affidavits refer to fencing the property.
Further, Mrs. Bragg testified about fencing, and it was clear that she was referring to the
common use of the word fencing as she thought the fencing was constructed of wire or
rails. Mrs. Bragg did not testify as to whether the Disputed Property had been posted.
Although it may be a typographical error, in their motion for summary judgment, the
Braggs state “It is contradicted that Defendants posted the property from 1996 on.”
10
the type and extent of permission granted to the Braggs to use the entirety of the Tuber
Property versus the Disputed Property, 2) the years that the Braggs used the Disputed
Property, and 3) the types of activities/uses that the Braggs exercised on the Disputed
Property. These disputes must be resolved by a trier of fact. “In assessing the factual
record, we must grant the nonmoving party the benefit of inferences, as ‘credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.’” Williams v. Precision Coil, Inc.,
194 W.Va. at 59, 459 S.E.2d at 336 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at
255, 106 Sc.D. at 2513). Such factual determinations are material to the determination as
to whether the Braggs’ use of the Disputed Property was adverse or hostile, an essential
element of a claim of adverse possession. Accordingly, summary judgment was not
appropriate in this case.
IV. CONCLUSION
For the reasons stated above, we reverse the circuit court’s order granting
summary judgment to the Braggs and remand this matter to the circuit court for further
proceedings.
Reversed and Remanded.
11