IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_______________

No. 19-0216

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LEONARD D. CARR and GLORIA J. CARR,

Petitioners

v.

LYSLE T. VEACH, JR., WHITNEY SLOANE VEACH, 

SYDNEY MORGAN VEACH, and BAILEY A. VEACH,

Respondents

____________________________________________________________

Appeal from the Circuit Court of Grant County

The Honorable Lynn A. Nelson, Judge

Civil Action No. 16-C-1

AFFIRMED

____________________________________________________________

Submitted: September 16, 2020

Filed: November 17, 2020

Nathan H. Walters, Esq.

Walters & Heishman, PLLC

Moorefield, West Virginia

Counsel for Petitioners

Jason R. Sites, Esq.

Sites Law Firm, PLLC

Keyser, West Virginia

Counsel for Respondents

CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.

FILED

November 17, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “In reviewing challenges to the findings and conclusions of the circuit 

court made after a bench trial, a two-pronged deferential standard of review is applied. The 

final order and the ultimate disposition are reviewed under an abuse of discretion standard, 

and the circuit court’s underlying factual findings are reviewed under a clearly erroneous 

standard. Questions of law are subject to a de novo review.” Syllabus Point 1, Public

Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).

2. “ Although the ruling of a trial court in granting or denying a motion 

for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed 

on appeal when it is clear that the trial court has acted under some misapprehension of the 

law or the evidence.” Syllabus Point 4, Sanders v. Georgia-Pacific Corporation, 159 W. 

Va. 621, 225 S.E.2d 218 (1976).

3. “A person claiming a prescriptive easement must prove each of the 

following elements: (1) the adverse use of another’s land; (2) that the adverse use was 

continuous and uninterrupted for at least ten years; (3) that the adverse use was actually 

known to the owner of the land, or so open, notorious and visible that a reasonable owner 

of the land would have noticed the use; and (4) the reasonably identified starting point, 

ending point, line, and width of the land that was adversely used, and the manner or purpose 
ii

for which the land was adversely used.” Syllabus Point 1, O’Dell v. Stegall, 226 W. Va. 

590, 703 S.E.2d 561 (2010).

4. “A person claiming a prescriptive easement must establish each 

element of prescriptive use as a necessary and independent fact by clear and convincing 

evidence, and the failure to establish any one element is fatal to the claim.” Syllabus Point 

3, O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561 (2010).

5. “[A]ll of the elements of prescriptive use, including the fact that the 

use relied upon is adverse, must appear by clear and convincing proof.” Syllabus Point 

2, in part, Beckley National Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935).

6. “In the context of prescriptive easements, the term “adverse use” does 

not imply that the person claiming a prescriptive easement has animosity, personal 

hostility, or ill will toward the landowner; the uncommunicated mental state of the person 

is irrelevant. Instead, adverse use is measured by the observable actions and statements of 

the person claiming a prescriptive easement and the owner of the land.” Syllabus Point 4, 

O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561 (2010).

7. “In the context of prescriptive easements, an “adverse use” of land is 

a wrongful use, made without the express or implied permission of the owner of the land. 

An “adverse use” is one that creates a cause of action by the owner against the person 
iii

claiming the prescriptive easement; no prescriptive easement may be created unless the 

person claiming the easement proves that the owner could have prevented the wrongful use 

by resorting to the law.” Syllabus Point 5, O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 

561 (2010).

8. “In the context of prescriptive easements, a use of another’s land that 

began as permissive will not become adverse unless the license (created by the granting of 

permission) is repudiated.” Syllabus Point 6, O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 

561 (2010).

9. “The burden of proving adverse use is upon the party who is claiming 

a prescriptive easement against the interests of the true owner of the land.” Syllabus Point 

7, in part, O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561 (2010).
1

Armstead, Chief Justice:

Leonard D. Carr and Gloria J. Carr (“Petitioners”) appeal the Circuit Court 

of Grant County’s order denying their motion for a new trial and their renewed motion for 

a new trial following a bench trial. In that trial, Petitioners sought a finding that they 

maintained a right-of-way over, across, and through real estate owned by Lysle T. Veach, 

Jr., Whitney Sloane Veach, Sydney Morgan Veach, and Bailey A. Veach (“Respondents”). 

After hearing the evidence below, the circuit court found that Petitioners had neither an 

express easement nor a prescriptive easement across Respondents’ property.

Having fully reviewed this matter, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this matter were fully developed during a two-day bench trial 

and are as follows:

In 2013, Petitioners purchased an approximate 204-acre tract of land in Grant 

County, West Virginia, near Knobley Road. This tract does not directly abut any public 

road. Respondents own property to the east of Petitioners’ property, which sits between 

Petitioners’ property and Knobley Road. Respondents’ property has an internal private 

road stretching from Knobley Road to Petitioners’ property.
2

At the time of the trial, Petitioners had access to their property in two ways. 

First, following construction of Appalachian Development Corridor H through their 

property, the West Virginia Division of Highways provided access to Petitioners’ property 

from the newly-constructed four-lane highway. This access was referred to as a “pig path,”

because once the public access point became a private road where it left the controlled 

access right of way owned by the West Virginia Division of Highways, the private road 

extending to Petitioners’ property was in deplorable condition. This access enters 

Petitioners’ property on its western side.

Petitioners’ other access point was through the use of the existing private 

road which crosses Respondents’ property to Knobley Road. This is the most direct access 

to Petitioners’ property. For many years, Respondents’ predecessors in title allowed 

Petitioners’ predecessors in title to enter Respondents’ property from Knobley Road, 

crossing Respondents’ property along the private road to access what is now Petitioners’

property. Petitioners argued that their predecessors had the right to use this private road 

and that such use was not permissive. Respondents argued the use was permissive and was 

demonstrated by: 1) Respondents or their predecessors providing keys to gates along the 

route that were in place for extended periods of time; 2) Respondents providing a remotecontrol device which opened an electronic gate on the private road; and, 3) Petitioners 

seeking – and receiving – Respondents’ permission to allow contractors to use the road 

during construction of a home on Petitioners’ property.
3

In 1939, a chancery proceeding was filed that affected what is now 

Petitioners’ property. The purpose of the proceeding was to divide and sell portions of a 

larger 380-acre parcel of which Petitioners’ property is a part. Land Commissioners were 

appointed and they reported to the circuit court that the 380-acre parcel should be divided 

into two tracts of 230 acres and 150 acres. They further recommended that a right of way 

“for the benefit of either of said tracts when they are laid off,” be established within the 

380 acres. This proceeding affected no interest in Respondents’ property. 

Through various mesne conveyances, Petitioners are the successors in title 

to a portion of the property that was subject to the 1939 chancery proceeding. Respondents 

are the owners of the adjacent property to the east and are not successors in title to any 

person or property that was subject to the 1939 chancery proceedings. During the trial, 

both Petitioners and Respondents offered expert testimony from lawyers who had 

examined the title to both properties and opined as to the existence of an express easement 

allowing Petitioners to use Respondents’ road. Both experts agreed1 and the circuit court 

specifically found that “[n]o evidence of any Grant or Reservation of an express easement 

in a Deed within the [Respondents’] chain of title was introduced.” In fact, the only 

1 Petitioners’ expert nonetheless maintained that it was necessary to search 

for information outside the chain of title to determine if an express easement existed. This 

flies in the face of our law which provides, “[i]t is well settled, of course, that parol 

evidence is inadmissible to vary, contradict, add to or explain the terms of a valid 

unambiguous written instrument.” Wellman v. Tomblin, 140 W. Va. 342, 348, 84 S.E.2d 

617, 621 (1954).
4

mention in the chain of title of an easement to Petitioners’ property from Knobley Road is 

in deeds solely in Petitioners’ chain of title and which are not found in Respondents’ chain 

of title.

Petitioners did not demonstrate below that any instrument of record in the 

Office of the Clerk of the County Commission of Grant County contained an easement for 

their use across Respondents’ property. Instead, the first mention of an easement in an 

instrument of record was in a 1989 out-conveyance of the real estate now owned by 

Petitioners which purported to grant the right to use Respondents’ private road. The second 

mention of this easement was Petitioners’ source deed in 2013. This deed purports to 

further delineate a right in Petitioners to use Respondents’ private road. No one in 

Respondents’ chain of title is a party to either of these instruments.

Petitioners’ predecessors in title co-existed as neighbors with Respondents’

predecessors in title for seventy years, engaging in business dealings, visiting one another

and interacting as friends. In fact, Petitioners’ predecessors did not believe they were 

trespassing when they used the private road. This use continued unencumbered until 

Respondents revoked permission to use the road and began locking gates, which effectively 

blocked Petitioners’ access across the private road. Petitioners then sought and were 

granted a temporary injunction prohibiting Respondents from depriving them of access 

until the issue of whether an easement existed across Respondents’ property was resolved.
5

Following the bench trial, the circuit court determined that Petitioners had 

neither an express easement nor a prescriptive easement across Respondents’ property, 

dissolved the temporary injunction, and granted a motion to alter or amend the judgment

giving Petitioners the right to use the private road for the duration of their lives.2

Petitioners then appealed the circuit court’s rulings.

II. STANDARD OF REVIEW

The two issues raised in this appeal involve the denial of a motion for a new 

trial following the circuit court’s verdict in a bench trial and the subsequent denial of a 

renewed motion for a new trial. 

In reviewing challenges to the findings and conclusions 

of the circuit court made after a bench trial, a two-pronged 

deferential standard of review is applied. The final order and 

the ultimate disposition are reviewed under an abuse of 

discretion standard, and the circuit court’s underlying factual 

findings are reviewed under a clearly erroneous standard. 

Questions of law are subject to a de novo review.

Syllabus Point 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W.Va. 329, 480 

S.E.2d 538 (1996). Likewise, 

[I]t is well-established that “‘[a]lthough the ruling of a trial 

court in granting or denying a motion for a new trial is entitled 

to great respect and weight, the trial court’s ruling will be 

reversed on appeal when it is clear that the trial court has acted 

under some misapprehension of the law or the evidence.’

2 On the cover page of Petitioners’ brief, it notes that Petitioner Leonard D. 

Carr died on March 8, 2019. No suggestion of death was filed in the record and no party 

has been substituted for Mr. Carr. See W. Va. R. Civ. P., Rule 25. 
6

Syllabus [P]oint 4, Sanders v. Georgia–Pacific Corp., 159 

W.Va. 621, 225 S.E.2d 218 (1976).” Syllabus Point 

3, Carpenter v. Luke, 225 W.Va. 35, 689 S.E.2d 247 (2009). 

In other words, our standard of review for a trial court’s 

decision regarding a motion for a new trial is abuse of 

discretion. Marsch v. American Elec. Power Co., 207 W.Va. 

174, 180, 530 S.E.2d 173, 179 (1999). 

MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715, 715 S.E.2d 405, 413 (2011). We are 

further guided by the deference an appellate court affords a trial judge’s factual findings 

following a bench trial:

Following a bench trial, the circuit court’s findings, based on 

oral or documentary evidence, shall not be overturned unless 

clearly erroneous, and due regard shall be given to the 

opportunity of the circuit judge to evaluate the credibility of 

the witnesses. W. Va. R. Civ. P[.] 52(a). Under this standard, if 

the circuit court’s account of the evidence is plausible in light 

of the record viewed in its entirety, we may not reverse it, even 

though convinced that had we been sitting as the trier of fact, 

we would have weighed the evidence differently. We will 

disturb only those factual findings that strike us wrong with the 

“force of a five-week-old, unrefrigerated dead fish.” United 

States v. Markling, 7 F.3d 1309, 1319 (7th Cir. 1993), cert. 

denied, 514 U.S. 1010, 115 S.Ct. 1327, 131 L.Ed.2d 206 

(1995).

Brown v. Gobble, 196 W.Va. 559, 563, 474 S.E.2d 489, 493 (1996). 

Thus, we review the circuit court’s decisions under an abuse of discretion 

standard. The assignments of error presented in this case will now be considered.
7

III. ANALYSIS

 This case requires us to examine long-established rules governing easements. 

Generally, “[a]n easement is a right that one person has to use the land of another person, 

for a specific purpose.” Cobb v. Daugherty, 225 W.Va. 435, 441, 693 S.E.2d 800, 806 

(2010). “The general rule ... is that an easement can be created in three ways: by 

prescription—the easement equivalent of adverse possession; by an express grant or 

reservation; or ... by implication from the particular set of facts and circumstances.” Id.

(quotations and footnotes omitted). The two questions arising in this matter are: 1) whether 

an express easement exists; and, 2) whether there is a prescriptive easement across 

Respondents’ land for the benefit of Petitioners.3

 We will examine each of these issues in 

turn.

3 We note that Petitioners assert as an assignment of error that the circuit 

court lacked the authority to grant them the right to use Respondents’ road for their natural 

lifetimes. 

As we stated in State, Dept. of Health v. Robert Morris 

N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995), 

“‘[a] skeletal ”argument,” really nothing more than an 

assertion, does not preserve a claim.... Judges are not like pigs, 

hunting for truffles buried in briefs.’” (quoting United States v. 

Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). Furthermore, this 

Court has adhered to the rule that “[a]lthough we liberally 

construe briefs in determining issues presented for review, 

issues ... mentioned only in passing but are not supported with 

pertinent authority, are not considered on appeal.” State v. 

LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996).

(continued . . .)
8

1. Express Easement

The circuit court found, and our review of the record confirms, that no 

express easement exists that grants Petitioners the right to use the private road crossing 

Respondents’ property. The record further shows that a purported easement is contained 

in two instruments in Petitioners’ chain of title – one a deed from 2013 that is the source 

of Petitioners’ title to their land and the other a prior deed from 1989. Both instruments 

purport to convey a right to use a road from Knobley Road to Petitioners’ property. As 

noted above, Petitioners do not own property abutting Knobley Road and Respondents’

property is located between that road and Petitioners’ property. Thus, the road noted in 

Petitioners’ chain documents necessarily must be on Respondents’ property. The problem 

is, no one in Respondents’ chain of title is a party to either of these two instruments. Both 

of these instruments are wholly within Petitioners’ chain of title and are attempts by the 

grantors in each to convey to someone a right that they did not possess.

West Virginia Code § 36-1-10 (1923) provides, in pertinent part, “[a] deed 

which purports to convey a greater right or interest in real property than the person making 

it may lawfully convey shall operate as an alienation of such right or interest in such real 

State v. Kaufman, 227 W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011). Because 

Petitioners do not cite to any authority and fail to carry this assignment of error over into 

the argument section of their brief, we decline to address this issue. 

We also find it telling that even though Petitioners attempted to appeal the 

circuit court’s grant of the lifetime use of Respondents’ road, Respondents did not. Thus, 

Respondents have either implicitly agreed to the circuit court’s finding or have waived the 

right to challenge it.
9

property as such person might lawfully convey.” In other words, a person cannot convey 

a greater interest in land than that person owns. This maxim is a bedrock of real property 

law because “a grantee acquires nothing more than the grantor owns and can convey, 

particularly where the title of grantor appears in deeds of record, and grantor’s intentions 

are expressed in his deed.” Wellman v. Tomblin, 140 W. Va. 342, 344, 84 S.E.2d 617, 619 

(1954). Here, language purporting to establish an easement is contained in both the 2013 

and 1989 deeds. However, this language attempts to convey an interest binding 

Respondents’ land that, in each case, the granting party did not have the lawful ability to 

grant.

Further, the prior 1939 chancery proceeding only pertained to Petitioners’

property. That matter was a partition of a larger tract into two smaller tracts – neither of 

which encompass any of the property now owned by Respondents. The references to an 

easement in that matter pertain only to access between the two subdivided parcels and do 

not provide any right to use any private road crossing Respondents’ property. Thus, the 

1939 proceeding is not helpful to Petitioners’ argument that there is an express easement 

across Respondents’ property. 

We conclude that the circuit court did not abuse its discretion in finding that 

“[t]here was no proof offered that the lawful owners of the real estate now owned by 

[Respondents] [g]ranted an express easement to any of the owners in the chain of title of 

the [Petitioners].”
10

2. Prescriptive Easement

We now turn to the question of whether an easement across Respondents’

land was established by prescription. We have recently clarified the elements necessary to 

establish a prescriptive easement, finding:

A person claiming a prescriptive easement must prove 

each of the following elements: (1) the adverse use of another’s 

land; (2) that the adverse use was continuous and uninterrupted 

for at least ten years; (3) that the adverse use was actually 

known to the owner of the land, or so open, notorious and 

visible that a reasonable owner of the land would have noticed 

the use; and (4) the reasonably identified starting point, ending 

point, line, and width of the land that was adversely used, and 

the manner or purpose for which the land was adversely used.

Syllabus Point 1, O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561 (2010). “A person 

claiming a prescriptive easement must establish each element of prescriptive use as a 

necessary and independent fact by clear and convincing evidence, and the failure to 

establish any one element is fatal to the claim.” Syllabus Point 3, O’Dell. Finally, in order 

to prevail, Petitioners have a heavy burden, namely, “all of the elements of prescriptive 

use, including the fact that the use relied upon is adverse, must appear by clear and 

convincing proof.” Syllabus Point 2, in part, Beckley Nat. Exchange Bank v. Lilly, 116 

W.Va. 608, 182 S.E. 767 (1935).

O’Dell clarified over one hundred years of this Court’s precedents on 

prescriptive easements and in so doing, provided clear guidance in a series of Syllabus 

Points as to what the term “adverse use” means and what evidence is required to establish 

it:
11

In the context of prescriptive easements, the term 

“adverse use” does not imply that the person claiming a 

prescriptive easement has animosity, personal hostility, or ill 

will toward the landowner; the uncommunicated mental state 

of the person is irrelevant. Instead, adverse use is measured by 

the observable actions and statements of the person claiming a 

prescriptive easement and the owner of the land.

In the context of prescriptive easements, an “adverse 

use” of land is a wrongful use, made without the express or 

implied permission of the owner of the land. An “adverse use”

is one that creates a cause of action by the owner against the 

person claiming the prescriptive easement; no prescriptive 

easement may be created unless the person claiming the 

easement proves that the owner could have prevented the 

wrongful use by resorting to the law.

In the context of prescriptive easements, a use of 

another’s land that began as permissive will not become 

adverse unless the license (created by the granting of 

permission) is repudiated.

The burden of proving adverse use is upon the party 

who is claiming a prescriptive easement against the interests of 

the true owner of the land. . . .

Syllabus Points 4 - 6 and Syllabus Point 7, in part, O’Dell v. Stegall, 226 W. Va. 590, 703 

S.E.2d 561 (2010).

Applying O’Dell to the facts of this case, we see that the circuit court did not 

abuse its discretion when it found that Petitioners had not satisfied the first element of a 

prescriptive easement: adverse use. The circuit court found on the evidence adduced 

during the bench trial that Petitioners’ predecessors’ use of the road was permissive. We 

agree. First, “[p]ermission 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. Here, 
12

Respondents and Petitioners’ predecessors maintained neighborly relations. They lent and 

borrowed the proverbial cup of sugar, a strong indication of permissive, rather than 

adverse, use.

Second, and fundamentally, Respondents gave Petitioners keys and remote 

controls so that Petitioners could open gates that otherwise barred access to the road across 

Respondents’ property. We cannot imagine a more obvious manifestation of permission. 

We note that Respondents also specifically allowed contractors constructing a home on 

Petitioners’ property to use the road as a means of access.4 Petitioners had the burden to 

demonstrate that their use of Respondents’ road was adverse and they did not make that 

showing.

5

 Therefore, the circuit court did not abuse its discretion in reaching the

conclusion that no prescriptive easement existed across Respondents’ property.

4 Petitioners argue that their predecessors used the road believing it to be their 

legal right and that Respondents knew of that belief but did not contest it. See Syllabus 

Point 2, Faulkner v. Thorn, 122 W. Va. 323, 9 S.E.2d 140 (1940) (permissive use continues 

until “licensee, to the knowledge of the licensor, renounces the permission and claims the 

use as his own right, and thereafter uses the way under his adverse claim openly, 

continuously, and uninterruptedly, for the prescriptive period”). Having reviewed the 

record, we do not see that clear and convincing evidence supports that position. 

5 Because Petitioners failed to establish that their use of the private road 

across Respondents’ property was adverse, we do not address the remaining O’Dell factors. 

See Syllabus Point 3, O’Dell (“failure to establish any one element is fatal to the claim” for 

a prescriptive easement).
13

IV. CONCLUSION

For the foregoing reasons, we affirm the circuit court.

Affirmed.