STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

David Joe Robey, 

Plaintiff Below, Petitioner FILED 

January 5, 2018 

vs) No. 17-0024 (Harrison County 15-C-448-3) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Dominion Transmission, Inc., 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner David Joe Robey, by counsel Stephen A. Wickland, appeals the order of the 

Circuit Court of Harrison County, entered on October 18, 2016, granting summary judgment in 

favor of Respondent Dominion Transmission, Inc. (“Dominion”). Dominion appears by counsel 

W. Henry Lawrence and William J. O’Brien. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the order of the circuit court is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

In 2004, petitioner purchased from Terry and Wanda Nesler acreage that had, for the 

prior one-hundred years, been affected by at least twenty-eight leasing and easement agreements 

between petitioner’s predecessors-in-title and Hope Natural Gas (“Hope”). Pursuant to various of 

these agreements, Hope located a compressor substation on the acreage, together with 

appurtenances necessary to the operation of the substation.1 Under the most recent of the leases, 

executed in 1961, a 45,000 square-foot parcel of the land on which the substation was located 

(“the parcel”) was designated for Hope’s use, and Hope was afforded “the free right of ingress 

and egress to and from said land over existing roads and by extending roads to the property 

herein demised.” The agreement specified that the lease was not to be extended more than fifty 

years, and petitioner emphasizes that the lease agreement therefore terminated by July 20, 2012. 

The Neslers reserved from the 2004 acreage sale to petitioner the 45,000 square-foot 

parcel that was leased by Hope. The aboveground appurtenances placed by Hope were evident 

crossing the property purchased by petitioner at the time of the 2004 sale. In 2010, the Neslers 

sold the 45,000 square-foot parcel to Dominion, and Dominion continued to maintain the 

1 Petitioner represents that there are fifty-five “appurtenances” over his property, 

including a large fire gate, risers, and valves. Otherwise, little detail is offered, and the Court will 

refer generally, as did the parties, to the appurtenances. 

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aboveground appurtenances and roadways over petitioner’s property. Petitioner filed a complaint 

for declaratory judgment in the Circuit Court of Harrison County on November 4, 2015, seeking 

a determination that Dominion continued to enter petitioner’s property under an invalid or 

expired lease agreement. 

At the close of discovery, both parties filed motions for summary judgment. The circuit 

court entered an order, on October 18, 2016, denying petitioner’s motion and granting summary 

judgment to Dominion on alternate theories. First, the circuit court found that “the aboveground 

appurtenances were consistent with the rights of way granted to [Dominion] by [petitioner’s 

predecessors-in-interest]” because “[t]he [twenty-eight] separate right of way agreements 

generally allow the pipeline to be ‘on, over, or through’ the subject property.” This theory is 

buttressed, the court found, because petitioner’s predecessors-in-title allowed Hope and 

Dominion to construct and maintain the appurtenances. Alternatively, the circuit court found, 

Dominion is entitled to a prescriptive easement for its aboveground appurtenances through 

Hope’s and Dominion’s continuous, adverse, open, and notorious possession of the property on 

which the appurtenances were placed. Petitioner later requested amendment of the circuit court’s 

judgment. The circuit court denied that request, and this appeal followed. 

On appeal, petitioner asserts four assignments of error: the circuit court erred when it 

“ignored” the 1961 lease; the circuit court erred when it implied that a right of way for a pipeline 

gave permission for above-ground appurtenances; the circuit court erred when it labeled the 

above-ground appurtenances “prescriptive easements”; and the circuit court erred when it 

permitted respondent to occupy petitioner’s land without permission and compensation. Because 

petitioner raises these assignments of error in response to the grant of summary judgment, our 

review is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 190, 451 S.E.2d 755, 756 

(1994). 

The circuit court’s key findings indicate that petitioner’s property was purchased subject 

to twenty-eight “recorded easements and agreements relating to natural gas pipeline rights to 

Hope or its successor in interest,” though “latent ambiguity,” if any, in the agreements was 

resolved by the custom and usage of the property over the last century. Petitioner asserts, 

without citation to the appendix record on appeal, that the twenty-eight agreements on which the 

circuit court relied do not “specifically mention[] any aboveground appurtenances,” and because 

only the 1961 lease does so, the 1961 lease controls Dominion’s use of petitioner’s property. 

Dominion counters, consistent with the circuit court’s findings, that “[p]ursuant to the [twentyeight] recorded easement or right[-]of[-]way agreements, . . . [Dominion] has the right to lay 

pipelines ‘on, over, and through the [s]ubject [p]roperty. . . .’” 

The twenty-eight agreements, so central to this matter, are not contained in the appendix 

record on appeal. Though the appendix record contains the 1961 lease agreement and a few other 

agreements, in part or whole, petitioner’s citations are to pages of deed books in the Harrison 

County Clerk’s Office and not submitted with the appendix record on appeal. Thus, we are 

unable to determine that the circuit court wrongly assessed the easements or rights-of-way 

related to the pipelines. As such, we find that there is no evidence that the circuit court “ignored” 

the 1961 lease or that the circuit court wrongly found that easement or right-of-way agreements 

permitted the installation of aboveground appurtenances. We will not disturb the circuit court’s 

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finding that petitioner’s property is subject to express easements or rights-of-way that have been 

conveyed over the last hundred years. 

Having addressed petitioner’s first and second assignments of error with the 

determination that Dominion owns easements “on, over, and through the [s]ubject [p]roperty. . . 

,” we find it unnecessary to consider whether Dominion has attained an easement by 

prescription, and there is no question of Dominion’s previously-granted right to enter petitioner’s 

property. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: January 5, 2018 

CONCURRED IN BY: 

Chief Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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