Filed: July 13, 1995
Fairmont, West Virginia
Attorney for the Appellees
Michael F. Niggemyer
Charleston, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
JUSTICE CLECKLEY and JUDGE FOX, sitting by temporary assignment, deeming themselves disqualified, did not participate in the consideration or decision in this case.
RETIRED JUSTICE MILLER, JUDGE JOLLIFFE, and JUDGE SPAULDING sitting by temporary assignment.
1. "'One of the essentials of res judicata is that the issue raised in the second
action or suit must be identical with the issue raised and determined in the first action or suit.'
Syl. pt. 1, Soto v. Hope Natural Gas Co., 142 W.Va. 373, 95 S.E.2d 769 (1956)." Syllabus
point 2, Cook v. Cook, 172 W.Va. 322, 359 S.E.2d 342 (1987).
2. "'"The open, continuous and uninterrupted use of a road over the land of
another, under bona fide claim of right, and without objection from the owner, for a period
of ten years, creates in the user of such road a right by prescription to the continued use
thereof. In the absence of any one or all of such requisites, the claimant of a private way
does not acquire such way by prescription over the lands of another." Syl. pt. 1, Holland v.
Flanagan. 139 W.Va. 884, 81 S.E.2d 908 (1954).' Syl. pt. 2, Keller v. Hartman,  W.Va.
, 333 S.E.2d 89 (1985)." Syllabus point 1, Shrewsbury v. Humphrey, 183 W.Va. 291,
395 S.E.2d 535 (1990).
3. "In the exercise of its appellate jurisdiction, this Court will not decide
nonjurisdictional questions which have not been decided by the court from which the case
has been appealed." Syllabus point 11, Work v. Rogerson, 149 W.Va. 493, 142 S.E.2d 188
4. "The duty to maintain an easement in such condition that it may be enjoyed is upon those entitled to its use, in the absence of some contractual or prescriptive obligation upon the owner of the servient estate to so maintain it." Syllabus point 2, Carson v. Jackson Land and Mining Company, 90 W.Va. 781, 111 S.E. 846 (1922).
The appellant in this proceeding, Lila M. Edman, claims that the Circuit Court
of Marion County committed several errors in reaching the conclusion that the appellees,
Peter B. Moran and Patricia Moran, had an easement by prescription to use a road across her
property. She also claims that the circuit court erred in requiring her to assist in maintaining
the road. After reviewing the questions presented and the record, this Court concludes that
the circuit court properly found that the Morans had the prescriptive easement, but
improperly directed Lila M. Edman to contribute to the upkeep of the road. The judgment
of the circuit court is, therefore, affirmed in part and reversed in part.
In their complaint instituting this action, the appellees, Peter B. Moran and
Patricia Jean Moran, asserted that for fifty years prior to their purchase of a certain parcel
of real estate, they, and/or their predecessors in title, had used a road which ran across the
appellant's property. They claimed that as a result of the use, they had acquired an easement
by prescription to use the road and that Lila M. Edman had wrongfully interfered with their
easement by placing a locked gate across it.
The Morans prayed for a declaratory judgment officially recognizing their
easement, and they sought a permanent injunction directing Lila M. Edman to provide them
with a key to the gate obstructing the road. They also sought monetary damages sufficient to compensate them for their loss of the use of the easement, attorneys' fees, interest, and
costs. They did not seek an order requiring Lila M. Edman to maintain, or to contribute to
the upkeep of, the road.
In answering the Morans' complaint, Lila M. Edman asserted that the Circuit
Court of Marion County, in a previous civil action, Civil Action No. 78-C-542, had declared
that the road in question was not a public road and that that ruling, under the principles of
res judicata, barred the Morans' claim. She also denied that the Morans or their predecessors
had used the road in such a way as would support the establishment of an easement by
The Circuit Court of Marion County conducted hearings in the case and, on
May 31, 1992, entered the order from which Lila M. Edman now appeals. In that order, the
circuit court initially discussed the prior civil action and its res judicata effect on the Morans'
action. The court said:
In 1978 the West Virginia Department of Highways brought suit against Clarence D. Edman in the Circuit Court of Marion County, Civil Action No. 78-C-542. The results of that action have no bearing upon the matters at issue in this case.
The court then discussed the facts bearing on the Morans' prescriptive easement claim. The
For more than sixty (60) years prior to the purchase by plaintiffs of plaintiffs' real estate and from the time of the purchase of said real estate by plaintiffs, until on or about October __, 1990, plaintiffs' predecessors in title and plaintiffs have used a road upon, across and through defendant's real estate, as a means of ingress and egress, by foot and by motor vehicle, to and from plaintiffs' real estate. Said use occurred during the time that defendant's real estate was owned by defendant's predecessor in title, and also during the time said real estate was owned by her.
The court concluded:
The use of said road by plaintiffs' predecessors in title and by plaintiffs, for approximately eighty (80) years, has been actual, adverse, under a claim of right, exclusive, open, notorious, continuous, uninterrupted, and with the knowledge and acquiescence of defendant and her predecessors in title. Plaintiffs therefore have an easement upon, across and through defendant's real estate by prescription.
The court ordered Lila M. Edman to allow the Morans to use the road and to provide them
with a key to any gate or barrier across the it. The court denied the Morans' prayer for
damages, but proceeded to rule that:
Plaintiffs [the Morans] and defendant [Lila M. Edman] shall jointly bear the cost of maintenance from the beginning of said road to the place on said road near which defendant's home was previously located.
Plaintiffs shall maintain said road from the place on said road
near which defendant's home was previously located to
On appeal, Lila M. Edman's first assignment of error is that the circuit court
erred in not holding that the prior decision of the Circuit Court of Marion County in Civil
Action No. 78-C-542, "West Virginia Department of Highways v. Edman," was res judicata to the issues in the present case. Essentially, she claims that the earlier ruling held that the
road in question was not a public road and that, consequently, the circuit court erred in
holding that the Morans had a prescriptive easement over the road.
An examination of the record shows that the earlier action, Civil Action No. 78-C-542, was instituted by the West Virginia Department of Highways against Lila M. Edman's now-deceased husband, Clarence D. Edman. In the complaint in that action, the West Virginia Department of Highways apparently prayed that the road in question in the present case be declared a public road and that Clarence D. Edman be enjoined from preventing the public's use of it by obstructing it with a gate, or gates.
After development of Civil Action No. 78-C-542, the Circuit Court of Marion
County ruled that a public authority had never accepted the road as a public road and that it,
consequently, was not a public road under the law of this State. The court also concluded
that since the road was not a public road, the placing of a gate or gates across it did not constitute an illegal obstruction of or interference with the public's rights.See footnote 1 The court's order
It is ADJUDGED and ORDERED that the road is a private and not a public road, the prayer for an injunction and for damages is denied, and this action is dismissed at the cost of the plaintiff.
In addressing the question of whether the circuit court in the present case
should have held that the earlier decision in Civil Action No. 78-C-542 was res judicata as
to the Morans' claims, the Court notes that in Cook v. Cook, 172 W.Va. 322, 359 S.E.2d 342
(1987), this Court held that for a ruling in one action to bar a demand for relief in a second
action under res judicata, the issue raised in the second action or suit must be identical with
the issue raised and determined in the first action. Essentially, res judicata applies only if there is an identity between the issues in the two actions. Syllabus point 2 of Cook v. Cook,
Id., states the rule in the following way:
"One of the essentials of res judicata is that the issue raised in the second action or suit must be identical with the issue raised and determined in the first action or suit." Syl. pt. 1, Soto v. Hope Natural Gas Co., 142 W.Va. 373, 95 S.E.2d 769 (1956).
In the present situation, it is apparent that in the first case, Civil Action No. 78-
C-542, the issue was whether the road in question, which admittedly is the same road as is
in issue in the present case, was a public road. On the other hand, it is also apparent that the
issue in the present case is not whether the road is a public road, but whether the Morans
have a private, prescriptive easement in it.
In syllabus point 2 of Reger v. Wiest, 172 W.Va. 738, 310 S.E.2d 499 (1983),
the Court explained the circumstances under which a public road can be established. The
"Generally there are but three methods by which the public may acquire a valid right to use land owned by another as and for a public road or highway: (1) By condemnation proceeding, with compensation to the property owner for the damage resulting from such forceful taking; (2) by continuous and adverse user by the public during the statutory period, accompanied by some official recognition thereof as a public road by the county court, as by work done on it by a supervisor acting by appointment of that tribunal; (3) by the owner's dedication of the land to the public use, or by his consent to such use given in writing, and acceptance of the dedication by the proper authorities." Syl. pt. 4, Ryan v. The County Court of Monongalia County, 86 W.Va. 40, 102 S.E. 731 (1920).
To establish a private right to use a road by prescription, as opposed to
establishing a public right to use the road, different factors must be shown. Those factors
were summarized by this Court in syllabus point 1 of Shrewsbury v. Humphrey, 183 W.Va.
291, 395 S.E.2d 535 (1990):
"'The open, continuous and uninterrupted use of a road over the land of another, under bona fide claim of right, and without objection from the owner, for a period of ten years, creates in the user of such road a right by prescription to the continued use thereof. In the absence of any one or all of such requisites, the claimant of a private way does not acquire such way by prescription over the lands of another.' Syl. pt. 1, Holland v. Flanagan. 139 W.Va. 884, 81 S.E.2d 908 (1954)." Syl. pt. 2, Keller v. Hartman,  W.Va. , 333 S.E.2d 89 (1985).
From a comparison of the quoted syllabus points from the Reger and
Shrewsbury cases, it is obvious that in a prescriptive easement case, what must be proven is
essentially different, from a legal point of view, from what must be proven in a public road
case. In a public road case, the public's right to use the road may be proven by a showing
of condemnation. Condemnation may not be used to establish a prescriptive right. In a
public road case, the public's right to use a road may be shown by showing that the owner
of the property has dedicated the road to public use. A prescriptive easement cannot be
created by dedication. Lastly, a public road may be established by the showing of adverse use for the statutory period, accompanied by an official act of recognition of the road as a
public road. To establish an easement by prescription, no public recognition is required. All
that is required is that the claimant of the prescriptive right show continuous and
uninterrupted use of the road under a bona fide claim of right, without objection from the
landowner, for the period of ten years.
In this Court's view, fundamentally different legal issues are involved in public
road and prescriptive easement cases. The Court also believes that the legal issue in West
Virginia Department of Highways v. Edman, Marion County, Civil Action No. 78-C-542,
a public road case, was fundamentally different from that involved in the present prescriptive
Since under syllabus point 2 of Cook v. Cook, supra, res judicata does not
apply unless the legal issue in the second action is identical to the legal issue in the first, the
circuit court did not err in the present case by failing to hold that the Morans' action was
barred under the doctrine of res judicata.See footnote 2
Lila M. Edman's second contention is that the lower court erred by finding that
the Morans had established each of the elements necessary for creation of an easement by
Before discussing this issue, the Court believes that it is important to note that
the circuit court ruled that the Morans had an easement by prescription and did not rule that
they had an interest in the property by adverse possession, as is claimed and argued by Lila
M. Edman throughout this proceeding.See footnote 3
As previously indicated in syllabus point 1 of Shrewsbury v. Humphrey, supra,
a prescriptive easement can be established by the showing of open, continuous, and uninterrupted use of a road over the land of another, under bona fide claim of right and
without objection of the owner, for a period of ten years.
In reviewing the record in the present case, the Court notes that although the
evidence was somewhat conflicting,See footnote 4 the Morans introduced evidence showing that they,
their predecessors, and parties acting in their behalf had openly and uninterruptedly used the
road in question for many years and that the road was generally perceived as providing
access to the property which the appellees acquired. They also introduced evidence
indicating that the predecessors of the Edmans had not objected to the use and that certain
of the use had been relatively continuous. For instance, one witness, Stella Moran, testified
that she had used the road on multiple occasions between 1915 and the mid-1920's and that
she had also walked over it in the 1930's and 1940's. Another witness, Loren Morgan
testified that he had driven a coal truck over the road and that it was always open and that
no permission was necessary for its use. Lastly, Mr. Moran himself indicated that he had
used the road to obtain access to his property for a number of purposes from 1971 until 1990.
Although Lila M. Edman introduced evidence suggesting that the use of the
road had been merely sporadic, the trial court resolved the conflicts in the evidence in favor
of the Morans and found that the requirements of an easement by prescription had been met.
It has been rather consistently recognized that the findings of a trial court upon
facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury
and will not be disturbed on appeal unless the evidence plainly and decidedly preponderates
against such findings. Fraley v. Family Dollar Stores of Marlington, West Virginia, 188
W.Va. 35, 422 S.E.2d 512 (1992); Foster v. Sumner, 180 W.Va. 617, 378 S.E.2d 659 (1989);
Lotz v. Atamaniuk, 172 W.Va. 116, 304 S.E.2d 20 (1983); and Teter v. Teter, 163 W.Va.
770, 260 S.E.2d 270 (1979).
In light of the evidence in the instant case of the long, continuous,
uninterrupted use of the road in question by the Morans and their predecessors without
protest from the owner of the Edman property for a period exceeding that necessary to
establish a prescriptive right, this Court cannot conclude that the trial court's ruling was
erroneous, even though the use evidence was somewhat contradicted.
The Court notes that Lila M. Edman also claims that even if the Morans had
an easement by prescription, the evidence adduced showed that they waived or abandoned
it. In examining this, the Court can find nothing in the record to indicate that the issue was raised before the trial court or that that court addressed or decided it. Similarly, Lila M.
Edman claims the trial court erred in failing to specify, sua sponte, the purposes for which
the Morans might legally use the road across her property. As with the waiver issue, it does
not appear that this question was raised or that the trial court addressed it.
In syllabus point 11 of Work v. Rogerson, 149 W.Va. 493, 142 S.E.2d 188
(1965), this Court stated:
In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which have not been decided by the court from which the case has been appealed.
See also, State ex rel. Stateline Sparkler of WV, Ltd. v. Teach, 187 W.Va. 271, 418 S.E.2d
585 (1992); Charlton v. Charlton, 186 W.Va. 670, 413 S.E.2d 911 (1991); Northwestern
Disposal Company, Inc. v. West Virginia Public Service Commission, 182 W.Va. 423, 388
S.E.2d 297 (1989); and Randolph v. Koury Corporation, 173 W.Va. 96, 312 S.E.2d 759
Lastly, Lila M. Edman claims that the lower court erred in requiring her to
contribute to the upkeep of the road.
In syllabus point 2 of Carson v. Jackson Land and Mining Company, 90 W.Va.
781, 111 S.E. 846 (1922), the Court rather plainly indicated that in an easement situation the duty to maintain an easement is ordinarily upon those entitled to use the easement and not
upon the landowner. The Court said:
The duty to maintain an easement in such condition that it may be enjoyed is upon those entitled to its use, in the absence of some contractual or prescriptive obligation upon the owner of the servient estate to so maintain it.
So far as this Court can determine from the reconstructed record in the present
case, no evidence was introduced on who previously maintained the road subjected to the
prescriptive easement, and no evidence was introduced suggesting a contractual undertaking
by Lila M. Edman or her predecessors to maintain it. Further, the Morans' complaint
contains no prayer for relief by way of an upkeep order. As a consequence, given the rule
in syllabus point 2 of Carson v. Jackson Land and Mining Company, Id., the Court cannot
say that the record, as developed, formed an adequate basis for the trial court to order Lila
M. Edman to contribute to the upkeep of the road in question.
For the reasons stated, the judgment of the Circuit Court of Marion County,
insofar as it relates to the existence of the Morans' easement by prescription, is affirmed.
The judgment is reversed insofar as it directs Lila M. Edman to contribute to the upkeep of
Footnote: 1 The court actually stated:
The Court concludes as a matter of law that the road, referred to as Marion County Route 73/2, prior to the construction of Interstate 79, and now referred to as Marion County Route 78/4 in the Complaint, is a private but not a public road; that public authority has never accepted the road as a public road; that the decisions of the Supreme Court of Appeals of West Virginia of Baker v. Hamilton, 144 W.Va. 575, 109 S.E.2d 27 (1959), and State Road Commission v. Oakes, 150 W.Va. 709, 149 S.E.2d 293 (1966) are controlling that the chain placed across the road by the defendant, Clarence D. Edman, is not an obstruction within the meaning of Code 17-16- 1, and the plaintiff is not entitled to the injunction or damages demanded in the complaint.
Footnote: 2 During a part of the proceedings in this case, Lila M. Edman acted pro se, and the Court believes that in raising the res judicata issue, she has acted under a bona fide misunderstanding of the legal issues and effect of the court's judgment in the first action, Civil Action No. 78-C-542. The papers filed suggest that she has perceived the first action as being a "black and white" case with the issue being whether she (and her husband) "owned" the road or whether someone else "owned" it. The court ruled that it was a private road rather than a public way and that the public had no interest in it. Lila M. Edman
apparently has interpreted this to mean that she (and her husband) "owned" the road to the exclusion of everyone else.
The circuit court's ruling in the first action was not that no other party other than the Edmans had an interest in the road, but that the public, as a body, did not have an interest in the road. The circuit court's ruling was not so broad as to exclude the possibility that a private individual might share private ownership of the road with the Edmans by way of an easement (which, of course, is what the circuit court ruled in the present case).
Footnote: 3 Adverse possession, of course, involves the adverse taking of title to real estate. Its effect is to deprive the prior owner of all his interest in the real estate. The acquisition of a prescriptive easement affords the person who acquires the easement the use of another's property in a limited way. It does not deprive the owner of the property of all his interest in it. He still owns the property, subject only to the requirement that he not use it so as to deprive, or interfere with, the easement owner's enjoyment of the easement. A greater showing must be made to establish adverse possession than is necessary to establish a prescriptive easement.
Footnote: 4 A portion of the trial notes was lost and the record had to be reconstructed pursuant to Rule 80(e) of the West Virginia Rules of Civil Procedure. In making this statement regarding the record, the Court relies upon that reconstruction.