Present: All the Justices 

THOMAS M. HELMS, ET AL. 

v. Record No. 072306 OPINION BY 

CHIEF JUSTICE LEROY ROUNTREE HASSELL, SR. 

JAMES L. MANSPILE, ET AL. January 16, 2009 

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY 

Malfourd W. Trumbo, Judge 

I. 

 In this appeal the primary issue we consider is whether 

alleged owners of real estate established as a matter of law 

that they own title to a parcel of land by adverse possession. 

II. 

 James L. Manspile and Sheri N. Graham (the Manspiles) 

filed a complaint against Thomas M. Helms, Barbara S. Helms, 

and others. The Manspiles sought a declaration that they own 

an easement that transverses land owned by the Helms. The 

Helms filed a counterclaim and, among other things, sought an 

adjudication that they own a “102-feet” tract of land, 

described as Parcel 2, by adverse possession. 

 At the conclusion of a bench trial, the circuit court 

held that the Manspiles did not have an easement over the 

Helms’ property and had an easement existed, it had been 

abandoned. The circuit court also ruled that the Helms failed 

to establish their claim of ownership of Parcel 2 by adverse 

possession. 
III. 

 The relevant facts necessary to our resolution of this 

appeal are not in dispute. The Helms and the Manspiles own 

adjoining tracts of land in Botetourt County. The Helms 

purchased their land in 1972. Their expert witness testified 

that the Helms’ property consists of two parcels: Parcel 1 

which is not pertinent to this appeal; and Parcel 2, which is 

a rectangular strip of land 102 feet in length. The actual 

boundary line between the Helms’ property and the Manspiles’ 

property could not be determined because the descriptions in 

the deeds in both the Manspiles’ and the Helms’ chains of 

title are inadequate to permit a surveyor to ascertain the 

property line. 

 When the Helms purchased their property in 1972, the 

property was enclosed within a fence. They considered the 

fence, which extended along the northern border of the 102-

feet parcel, as the boundary for their property. Their land 

was “mostly cleared” and contained “second growth timber.” 

An old barbed wire fence, that extended along the 

northern boundary of Parcel 2, had existed for over 50 years. 

In 1998 or 1999, the Manspiles, with the Helms’ permission, 

replaced the old barbed wire fence with a new fence and the 

Manspiles erected the new fence in the same location where the 

old fence had been located. 

2
 The Helms’ predecessors in title kept cattle that grazed 

on Parcel 2. They also kept a milk cow and a horse on the 

enclosed Parcel 2. The Helms’ predecessors in title had 

erected buildings on Parcel 2, including a “smokehouse” that 

had been built over 65 years ago. 

 Since 1972, Thomas Helms used a tractor to clear “brush 

off” of Parcel 2. He also maintained dog kennels on Parcel 2. 

The Helms constructed a “skid road” and hauled timber on 

Parcel 2. On one occasion, Thomas Helms asked the Manspiles 

for permission to “haul timber” across their property. The 

Manspiles refused to grant permission, so Helms transported 

the timber across Parcel 2. James Manspile testified at trial 

that he did not believe he had any right to prevent Helms from 

hauling timber across Parcel 2. 

 The Helms testified that beginning with their purchase of 

the property in 1972, they treated Parcel 2 as their property. 

James Manspile thought that the Helms owned Parcel 2 because 

“[j]ust over time [Thomas Helms] had cleared brush and had cut 

wood and different things on that property. The fence never 

was no further. So in my knowledge, being 31 years old, I 

didn’t figure it went any further.” The Manspiles did not 

assert any claim of ownership of Parcel 2 until the 

commencement of this litigation. 

IV. 

3
 The Helms contend that they proved by clear and 

convincing evidence that they own the title to Parcel 2 by 

adverse possession. Responding, the Manspiles assert that 

this Court should dismiss the Helms’ appeal because they did 

not object to the circuit court’s rulings. Continuing, the 

Manspiles argue that the Helms failed to establish that they 

had title to Parcel 2 by adverse possession. We disagree with 

the Manspiles’ contentions. 

 At the conclusion of the presentation of evidence at 

trial, the circuit court directed the litigants to submit 

written memoranda of law that included their closing 

arguments. The Helms submitted their memorandum that 

included, among other things, their contention that they owned 

Parcel 2 by adverse possession. After the circuit court 

reviewed the memoranda submitted by counsel for the litigants, 

the circuit court issued a letter opinion that embodied its 

rulings. Subsequently, the circuit court entered an order 

that incorporated its letter opinion by reference. Counsel 

for both litigants endorsed the order as “seen.” 

 We hold that the Helms preserved their right to challenge 

on appeal the circuit court’s ruling on adverse possession. 

Code § 8.01-384(A) states: 

“No party, after having made an objection or motion 

known to the court, shall be required to make such 

objection or motion again in order to preserve his 

4
right to appeal, challenge, or move for 

reconsideration of, a ruling, order, or action of 

the court. No party shall be deemed to have agreed 

to, or acquiesced in, any written order of a trial 

court so as to forfeit his right to contest such 

order on appeal except by express written agreement 

in his endorsement of the order. Arguments made at 

trial via written pleading, memorandum, recital of 

objections in a final order, oral argument reduced 

to transcript, or agreed written statements of facts 

shall, unless expressly withdrawn or waived, be 

deemed preserved therein for assertion on appeal.” 

 Once a litigant informs the circuit court of his or her 

legal argument, “[i]n order for a waiver to occur within the 

meaning of Code § 8.01-384(A), the record must affirmatively 

show that the party who has asserted an objection has 

abandoned the objection or has demonstrated by his conduct the 

intent to abandon that objection.” Shelton v. Commonwealth, 

274 Va. 121, 127-28, 645 S.E.2d 914, 917 (2007); see King v. 

Commonwealth, 264 Va. 576, 581, 570 S.E.2d 863, 865-66 (2002); 

Chawla v. BurgerBusters, Inc., 255 Va. 616, 623, 499 S.E.2d 

829, 833 (1998). 

Clearly, pursuant to Code § 8.01-384(A), the Helms 

preserved their right to challenge on appeal the ruling of the 

circuit court. As agreed upon by the circuit court, the Helms 

submitted a written memorandum and argued that they owned the 

title to Parcel 2 by adverse possession. The trial court was 

well aware of the Helms’ legal positions and the Helms did not 

expressly withdraw or waive their arguments. 

5
 We recognize that Rule 5:25 states: “Error will not be 

sustained to any ruling of the trial court or the commission 

before which the case was initially tried unless the objection 

was stated with reasonable certainty at the time of the 

ruling, except for good cause shown or to enable this Court to 

attain the ends of justice.” However, Code § 8.01-384(A), 

which the Manspiles cite but do not discuss in its entirety, 

is controlling over Rule 5:25, and we must apply the statutory 

provision. Va. Const. Art. VI, § 5; Dorn v. Dorn, 222 Va. 

288, 291, 279 S.E.2d 393, 394-95 (1981); Turner v. 

Commonwealth, 221 Va. 513, 519-20, 273 S.E.2d 36, 40 (1980).

 We now consider the Helms’ contention that they 

established title to Parcel 2 by adverse possession. Upon our 

determination of the proper application of the law of adverse 

possession to the facts of this case, we review the circuit 

court’s judgment de novo. Quatannens v. Tyrrell, 268 Va. 360, 

365, 601 S.E.2d 616, 618 (2004); Turner v. Caplan, 268 Va. 

122, 125, 596 S.E.2d 525, 527 (2004); The Barter Foundation v. 

Widener, 267 Va. 80, 90, 592 S.E.2d 56, 60-61 (2004). 

 We stated in Grappo v. Blanks, 241 Va. 58, 61-62, 400 

S.E.2d 168, 170-71 (1991): 

“To establish title to real property by adverse 

possession, a claimant must prove actual, hostile, 

exclusive, visible, and continuous possession, under 

a claim of right, for the statutory period of 15 

years. A claimant has the burden of proving all the 

6
elements of adverse possession by clear and 

convincing evidence. 

“Use and occupation of property, evidenced by 

fencing the property, constitutes proof of actual

possession. One is in hostile possession if his 

possession is under a claim of right and adverse to 

the right of the true owner. One’s possession is 

exclusive when it is not in common with others. 

Possession is visible when it is so obvious that the 

true owner may be presumed to know about it. 

Possession is continuous only if it exists without 

interruption for the statutory period.” 

 We held in Grappo that the terms claim of title, claim of 

right, and claim of ownership are synonymous and mean 

“a possessor’s intention to appropriate and use the 

land as his own to the exclusion of all others. 

That intention need not be expressed but may be 

implied by a claimant’s conduct. Actual occupation, 

use, and improvement of the property by the 

claimant, as if he were in fact the owner, is 

conduct that can prove a claim of right.” 

Id. at 62, 400 S.E.2d at 171. In Grappo, we concluded that 

when a landowner enclosed approximately four acres of his 

neighbor’s land in addition to his own in a fence and 

“zealously examined his boundary fence for damage,” the 

landowner had acquired title to the fenced land by adverse 

possession. Id. at 62-63, 400 S.E.2d at 171 (citations 

omitted). 

 Upon application of the aforementioned principles to the 

record before this Court, we hold that the Helms established 

that they own title to Parcel 2 by adverse possession. The 

Helms established each element necessary to support a claim 

7
for adverse possession. Their possession was actual because 

the property was within their fence; Thomas Helms mowed the 

grass on Parcel 2 and maintained dog kennels on it; and his 

predecessors in title kept cattle, a milk cow, and a horse on 

the parcel. The Helms' predecessors in title had also erected 

a "smokehouse" on the parcel. 

The Helms’ possession of the property was adverse to the 

Manspiles. Parcel 2 was enclosed within a fence. When the 

Manspiles desired to rebuild the fence, which they considered 

to be the boundary line, they sought and obtained permission 

from the Helms. Additionally, on one occasion that we have 

already mentioned, Mr. Helms asked the Manspiles for 

permission to use a portion of the Manspiles’ property 

adjacent to Parcel 2 to load timber that had been cut. The 

Manspiles refused to give Mr. Helms permission to load timber 

on the Manspiles’ property. Nonetheless, Mr. Helms made a 

“skid road” on Parcel 2 and used the skid road to transport 

the timber. James Manspile testified that he did not take any 

action to stop Mr. Helms from using Parcel 2 to transport the 

timber because he did not think he had a right to stop him. 

Parcel 2 was used exclusively by the Helms and their 

predecessors in title and such use was open and notorious and 

8
continuous well in excess of fifteen years.* For example, the 

Helms cleared brush and cut wood on the property, and they 

treated Parcel 2 as their property and used all of it since 

they acquired the property in 1972. The Helms also asserted a 

claim of right to the property as demonstrated by their use 

and conduct. 

V. 

 The Manspiles, relying in part upon a document dated 

March 1915, claim that they have an easement to use a wagon 

road that extends from their property to a public road, Indian 

Rock Road. The circuit court held in its letter opinion and 

order that if the March 1915 document created a valid 

easement, the easement was in gross and did not run with the 

land, that the Helms’ property could not be burdened by the 

easement because the March 1915 document was never recorded 

and the Helms are bona fide purchasers of value without 

notice; and that the easement had been abandoned. The 

Manspiles argue that the circuit court erred in its rulings. 

 Assuming, without deciding, that the March 1915 document 

created a legally valid easement, we hold that the circuit 

 *

 We note that Code § 8.01-236 states in relevant part: 

“No person shall make an entry on, or bring an action to 

recover, any land unless within fifteen years next after the 

time at which the right to make such entry or bring such 

action shall have first accrued to such person or to some 

other person through whom he claims.” 

9
court correctly held that the easement had been abandoned. 

The principles controlling the abandonment of an easement are 

well established. The litigant claiming abandonment of an 

easement must establish such abandonment by clear and 

convincing evidence. Hudson v. Pillow, 261 Va. 296, 302, 541 

S.E.2d 556, 560 (2001); Pizzarelle v. Dempsey, 259 Va. 521, 

528, 526 S.E.2d 260, 264 (2000); Robertson v. Robertson, 214 

Va. 76, 82, 197 S.E.2d 183, 188 (1973). “Nonuse of an 

easement coupled with acts which evidence an intent to abandon 

or which evidence adverse use by the owner of the servient 

estate, acquiesced in by the owner of the dominant estate, 

constitutes abandonment.” Robertson, 214 Va. at 81-82, 197 

S.E.2d at 188; accord Hudson, 261 Va. at 302, 541 S.E.2d at 

560; Pizzarelle, 259 Va. at 528, 526 S.E.2d at 264. If the 

litigant asserting abandonment relies upon the non-use of the 

easement coupled with an adverse use by the owner of the 

servient estate, that adverse use must continue for a period 

of time sufficient to establish a prescriptive right. Hudson, 

261 Va. at 302, 541 S.E.2d at 560; Lindsey v. Clark, 193 Va. 

522, 525, 69 S.E.2d 342, 344 (1952). Mere non-use is not 

sufficient to establish an abandonment. Hudson, 261 Va. at 

302, 541 S.E.2d at 560; Lindsey, 193 Va. at 525, 69 S.E.2d at 

344. 

10
 Applying the aforementioned principles to the evidence in 

this case, it is clear that the Manspiles abandoned the 

easement, if it ever existed. When the Helms acquired their 

property in 1972, the property was improved with a house that 

contained a carport and a retaining wall that had blocked the 

easement for more than 30 years. The Helms have barred the 

Manspiles from using the easement for more than 20 years, 

except when the Helms gave the Manspiles permission to use the 

easement. Brush had grown in portions of the easement and 

“deadfall [trees]” blocked portions of the easement. The 

Manspiles never made a claim of right to use the easement with 

the Helms and the Manspiles’ claims of vehicular use of the 

easement all occurred with permission of the Helms. The Helms 

told the Manspiles’ predecessors in title, on several 

occasions, that they could not use the easement and the 

uncontradicted testimony is that the easement had not been 

used since 1959. Therefore, we hold that the circuit court 

did not err in concluding that if an easement did exist, the 

easement had been abandoned. 

VI. 

In conclusion, we hold that the Manspiles do not have an 

easement to use the southern portion of the Helms’ property 

and we will affirm that portion of the circuit court’s 

judgment. We also hold that as a matter of law, the Helms 

11
12

established title ownership, by adverse possession, of Parcel 

2 and we will reverse that portion of the circuit court’s 

judgment that holds otherwise. We will remand this case to 

the circuit court for the entry of a judgment, which shall be 

recorded among the land records, that the Helms own title to 

Parcel 2. 

Affirmed in part,

reversed in part,

 and remanded.