Richard E. Ford, Jr.
Barry L. Bruce
The Ford Law Firm Barry L. Bruce & Associates
Lewisburg, West Virginia Lewisburg, West Virginia
The Opinion of the Court was delivered PER CURIAM.
Justice Maynard dissents and reserves the right to file a dissenting opinion.
1. The character and purpose of the easement acquired by prescription is
determined by the use made of it during the prescriptive period.
Syl. Pt. 3, Burns v. Goff,
164 W. Va. 301, 262 S.E.2d 772 (1980).
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,
v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996).
The open, continuous and uninterrupted use of a road over the lands 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
Syl. Pt. 1, in part, Holland
v. Flanagan, 139 W. Va. 884, 81 S.E.2d 908 (1954)
4. The burden of proving an easement rests on the party claiming such right
and must be established by clear and convincing proof.
Syl. Pt. 1, Berkeley Development
Corp. v. Hutzler, 159 W. Va. 844, 229 S.E.2d 732 (1976).
5. To establish an easement by prescription there must be continuous and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use. Syl. Pt. 1 Town of Paden City v. Felton, 136 W. Va. 127, 66 S.E.2d 280 (1951).
This is an appeal by Mr. Paul R. Brown, Jr., (hereinafter Appellant) from a
July 9, 1999, order of the Circuit Court of Greenbrier County finding that Grist Lumber, Inc.,
(hereinafter Appellee or Grist Lumber) was entitled to a prescriptive easement for
timbering purposes across property owned by the Appellant and an April 12, 2000, order
setting forth the width of such easement. The Appellant contends that the lower court erred
in granting the prescriptive easement for timbering purposes because Grist Lumber failed to
establish the use of the easement for timbering purposes during any ten-year period. The
Appellant further contends that the use of the easement for timbering purposes with the
express permission of the Appellant's predecessor in title cannot provide the basis for a
prescriptive easement for timbering purposes. The Appellant also maintains that the lower
court erred in its determination of the width of the prescriptive easement.
Upon review of the briefs, arguments of counsel, and the record, we reverse
the lower court's conclusion that the easement may be used for timbering purposes, affirm
the lower court's conclusion regarding the width of the easement, and remand for entry of
an order consistent with this opinion.
On September 4, 1998, Grist Lumber filed an action in the lower court seeking
damages and injunctive relief against the Appellant. Grist Lumber asserted that the Coiner
family had used the easement in an open, notorious, and continuous manner for more than
ten years, establishing a prescriptive easement. Grist Lumber further asserted that the
easement had been used to transport lumber during the prescriptive period, thus justifying
a finding by the lower court that Grist Lumber was entitled to use the easement for that
Grist Lumber specifically relied upon two documents, dated 1982 and 1985,
signed by the Appellant's father, also his predecessor in title. These documents were both
entitled Right of Way Understanding. The 1982 document, signed by Paul Brown, Sr., the
Appellant's father and predecessor in title, provided that Plum Creek, Inc., could make
permanent improvements to the easement for the purpose of removing timber products
from the Coiner property from October 28, 1982, through November 1, 1984, or sooner if
the operation is completed prior to November 1, 1984. The 1985 document, again signed
by Mr. Brown, Sr., provided that TODCO Wood Products could make permanent
improvements to the easement for the purpose of removing timber products from the
Coiner property from April 26, 1985, through December 1, 1986. Both instances of upgrades
to the easement for the purpose of timber removal were completed at the expense of Paul
Brown, Sr., the Appellant's predecessor in title.
The lower court granted temporary injunctive relief on October 28, 1998, and
held that Grist Lumber enjoyed a prescriptive easement for timbering purposes. The lower
court explained as follows:
[Grist Lumber] has shown by clear and convincing evidence that there has been open, continuous and uninterrupted use of the roadway over [Brown's] lands, under a bona fide claim of title . . . for a period in excess of ten years. That the use aforesaid created an easement by prescription along the aforesaid roadway.
. . . .
That during that period, on at least two occasions, the property had been timbered and the roadway had been used for removing timber. Additionally, the Court finds that at one time, there was a sawmill on the real estate of [Grist Lumber].
By order dated July 9, 1999, the lower court granted permanent injunctive relief after an evidentiary hearing. The lower court explained as follows in its very thorough findings of fact:
[Brown's] father, also his predecessor in title, acknowledged the existence of a right-of-way across his lands in agreements executed in 1982 and 1985 which provided, among other things, that the roadway would be improved at the expense of [Grist Lumber's] predecessors in title, and that the improvements to the roadway would be permanent in nature.
. . . .
That in the period of the ownership of [Grist Lumber's] predecessors in title, there is evidence that the dominant tenancy, which the prescriptive easement serves, was used for farming, residential, recreational, agricultural purposes, and, at least on two occasions, for commercial timber harvest.
In the conclusions of law in the July 9, 1999, order, the lower court held, in pertinent part, as follows:
[Grist Lumber] has demonstrated by clear and convincing evidence that from a period at least as early as the 1930's, and perhaps as far back as 1909, [Grist Lumber's] predecessors in title used the roadway crossing the lands of the [Appellant], or his predecessors in title, as the sole means of ingress to and egress from their property.
The Court finds that [Grist Lumber] has shown by clear and convincing evidence that there has been open, continuous and uninterrupted use of the roadway over [the Appellant's] lands, under a bona fide claim of title, for a period in excess of ten years
[T]he character and purpose of the easement acquired by prescription as determined by the use made of it during the prescriptive period is sufficient to establish the following uses: farming, vehicular travel, residential, recreation, and timber harvesting and removal, as long as it does not interfere with the Brown property and it does not unduly burden it.
By order dated April 12, 2000, the lower court established that the easement would, generally, be twelve feet wide, together with such additional space on either side as is necessary for [out-grading,] regular repair and maintenance. The turns would be fourteen feet wide, except for two turns which would be twenty feet wide each. The width of the right of way would be thirty feet at its point of intersection with Rader Valley Road. The lower court based its conclusions regarding the appropriate width of the easement upon aerial photographs of the easement, taken both before and after the 1982 and 1985 permanent improvements effected at the expense of the owner of the servient estate, Paul Brown, Sr.
The Appellant appealed to this Court, contending that the prescriptive easement
cannot be used for removal of timber since the character and purpose of the easement
acquired by prescription is determined by the use made of it during the prescriptive period.
Syl. Pt. 3, Burns v. Goff, 164 W. Va. 301, 262 S.E.2d 772 (1980);
Thompson, 199 W. Va. 255, 258, 412 S.E.2d 253, ___ (1991). The Appellant's allegations
of error, discussed in detail below, center upon the contention that the record reflects that the
road was not used for the purpose of transporting timber, except during the confines of the
express agreements of 1982 and 1985, with the express permission of the Appellant's
predecessor in title. The Appellant argues that these two instances, permissive in nature, are
insufficient to justify the lower court's legal conclusion that Grist Lumber is entitled to a
prescriptive easement for timbering purposes. The Appellant further contends that the
existence of a sawmill on the Coiner property in the 1920's is insufficient to justify the lower
The principal point of error alleged by the Appellant is the lower court's ruling
regarding the nature of the use of the easement to which the dominant estate is entitled.
Specifically, the Appellant contends that Grist Lumber failed to establish that it was entitled
to use the prescriptive easement for timbering purposes.
The Appellant asserts that the use
made of the easement during the prescriptive periodSee footnote 4
did not include timbering, with the
exception of the two limited instances, discussed above, in which timber was removed from
the Coiner property with the permission of the Appellant's predecessor in title and under
express agreements with precise termination dates. The Appellant contends that permission
to use the easement for timbering was rescinded at the conclusion of each of the two
The Appellant further asserts that the record indicates that the Coiner family
maintained a sawmill on the dominant estate only for a limited time in the 1920's. There is
scant evidence regarding the degree to which the easement was utilized to haul timber or the
degree to which the sawmill was used for commercial sales of timber. Mr. Marshall Bryant
testified that he helped his father deliver a sawmill to the Coiner property by a team of horses
via another road, Burns Creek Road, in the early 1920's.See footnote 5
Based upon the two instances of timber removal pursuant to the agreements of 1982 and 1985, as well as evidence concerning the existence of a sawmill on the Coiner property in the 1920's, the lower court arrived at the legal conclusion that such evidence justified a determination that the prescriptive easement should include use of the easement for timbering purposes. Upon appellate review, we regard that determination as a legal conclusion based upon the essentially undisputed facts. Our review of that legal conclusion is therefore de novo.
In Burns, for instance, a driveway had been used during the prescriptive period
for ingress and egress. Subsequent use of the driveway for commercial purposes was
precluded based upon the concept that commercial usage would constitute a change in the
character of [its] use. 164 W. Va. at 305, 262 S.E.2d at 775. In Staggers v. Hines, 87 W.
Va. 65, 104 S.E. 768 (1920), this Court ruled that despite occasional use of the easement for
timbering during the prescriptive period, the timbering usage had not been sufficient to
establish a prescriptive easement for timbering purposes. The Court explained: It is well
settled that a way acquired by prescription has its limitations. If acquired for one purpose,
it cannot be broadened or diverted to another; and its character and extent are ascertainable
and determinable by the use made of it during the period of prescription. Id. at ___, 104
S.E.2d at ___.
In the present case, the record reflects very infrequent incidents of use of the road for timbering from 1911 to the placement of the gate across the easement in 1998 . There is no evidence that the usage of the road for timber removal continued in an uninterrupted fashion for any ten-year period. The only well-documented instances of usage for timber removal occurred in 1982 and 1985 where express permission by the Appellant's predecessor in title was granted for timbering use for a limited period of time. This concept of permission is significant in examination of issues relating to prescriptive easements because established precedent dictates that a grant of permission by the owner of the servient estate defeats the concept of a prescriptive easement. As this Court noted in syllabus point one of Town of Paden City v. Felton, 136 W. Va. 127, 66 S.E.2d 280 (1951), [t]o establish an easement by prescription there must be continuous and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use. See also Conley v. Conley, 168 W. Va. 500, 285 S.E.2d 140 (1981) . Thus, a prescriptive easement does not arise when the owner of the servient estate has granted permission for such use. Syl. Pt. 4, Carr v. Constable, 196 W. Va. 276, 470 S.E.2d 408 (1996). In Jamison v. Waldeck United Methodist Church, 191 W. Va. 288, 45 S.E.2d 229 (1994), this Court encountered a situation in which property owners brought suit claiming a prescriptive easement over a church's neighboring property, and the Court explained: We agree with the Church that it is well established that if a property owner grants someone permission to use a piece of land for a particular purpose, a prescriptive easement cannot be created during the time the land is so used. 191 W. Va. at ___, 45 S.E.2d at 233.
Based upon the foregoing analysis, we reverse the lower court's legal
conclusion that Grist Lumber is entitled to utilize the easement for timbering purposes. On
the contrary, we hold that the sporadic use of the easement for removal of timber, particularly
in light of the fact that such use was with the express permission of the Appellant's
predecessor in title as the owner of the servient estate, does not justify the conclusion that the
easement should be utilized for purposes other than ingress and egress.See footnote 6
prospective use of the easement by the owner of the dominant estate shall be limited to such
The Appellant also challenges the lower court's establishment of the width of
the road, contending that the historical use of the roadway does not support such a
conclusion. The lower court performed extensive analysis regarding the width of the road,
and we do not reverse the lower court's findings of fact as clearly erroneous. During the
history of usage, the road was permanently widened and improved twice at the expense of
the owner of the servient estate. While the use for timbering purposes was limited to two
temporary periods, as discussed above, the improvements to the road were designated as
permanent in nature. The timbering usage was to cease at the conclusion of the terms of the
agreements; the improvements were to remain. Therefore, we agree with the legal
conclusions of the lower court regarding the width of the easement and do not disturb the
lower court's determinations in that regard.
Affirmed in part; reversed in part, and remanded with directions.