### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Eugene M. Wilson, Plaintiff Below, Petitioner 

### May 18, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS vs) No. 17-0539 (Upshur County 16-C-66) OF WEST VIRGINIA

Polino Enterprises, Inc., a West Virginia Corporation, Defendant Below, Respondent



### MEMORANDUM DECISION

Petitioner Eugene M. Wilson, pr o se, appeals the May 22, 2017, order of the Circuit Court of Upshur County granting Respondent Polino Ente rprises, Inc.’s motion for summary judgment. Respondent, by counsel Bridgette R. Wilson, filed a response.

The Court has considered the parties’ briefs and the record on appeal. 1 The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affirm ing the circuit court’s orders is appropriate under Rule 21

of the Rules of A ppellate Procedure.

The parties own adjacent parcels of real property in Upshur County, West Virginia. According to petitioner, his land borders resp ondent’s property on th e latter’s western and southern boundaries. On July 11, 20 16, petitioner filed a complaint in the Circuit C ourt of Upshur County alleging that respondent had created a nu isance on the western boundary of its property that was damaging his farmland and also claiming ownership by adverse possession of a strip of land 40 feet wide and 1,010 feet long along the southern boundary of respondent’s property. With regard to the western boundary, petitioner first alleged that trees on respondent’s side

1 The appellate record consists of the appendix filed by peti tioner. On October 19, 2017, respondent filed a motion to file a supplemental appendix and to be awar ded “costs and expenses incurred in preparing the [s]upplemental [a]ppendix.” The supplemental appendix was not filed with the motion. By order entered November 13, 2017, we granted the motion to file a supplemental appendix and deferred ruling on the motion for costs. No supplemental appendix was subsequently filed. Therefore, we deny the motion for costs.

1of the property line were nuisanc es because of “[d]amage to the production (yield and quality) of crops as a result of invasion by roots and shading.” For this alleged crop damage, petitioner asked for $100 per year for a total of $4,500 from May of 1969 through 2014 when he originally filed an action in the Magistrate Court of Upshur County. 2 Petitioner also sought unspecified “labor and equipment cost[s] of removing branches and li mbs of trees fallen” on his farmland. Finally, petitioner requested that respondent remove deer stands placed in trees near the property line because he had “no way of policing the killing of deer” on his property. 3

With regard to the southern boundary, petitioner claimed that he has possessed the 40 feet wide, 1,010 feet long strip of land along that proper ty line since 1969 to th e present adversely to the ownership interests of respondent and its pr edecessors-in-title, listing the past owners from

1940 to 2010. Petitioner noted that he has harvested wood from the area and has also used it for a gas pipeline pursuant to a right-of-way.

The circuit court entered a scheduling order on Septembe r 15, 2016, which set March 31, 2016, as the date by which discovery must be completed and the pretrial motions filed. The parties engaged in little, if any, discovery. Howeve r, on March 30, 2016, respondent filed a motion for summary judgment on petitioner’s claims and attached an August 1, 2012, le tter from petitioner to respondent’s president. The letter regarded the care of boundary areas “between [o]ur [p]ropeties to [c]orrect [o]wnership of [s]p ace and [l]and of [the] two [p]ropert ies.” In the letter, petitioner noted that respondent previously agreed to his “cutting overhanging limbs and dragging them back to the wooded area of [respondent’s] property,” but th at the proposal would re strict his cutting of tree limbs to those “no higher than 25 to 30 feet from the ground level.” Consequently, petitioner made a counterproposal and requested that resp ondent “clear-cut all th e area 40 feet from our fenced border to remove the encroaching limbs and roots of trees from you[r] forested land.” Petitioner’s letter explained:

In the past[,] the owners of these two properties agreed to the clear cutting and keeping the forested land from overgrowing the cultivated fields involved. I have neglected enforcement of the agreement be tween Mr. Robert W oofter[, a previous owner of respondent’s propert y,] and my father. As a result, [I] have suffered economic loss during the past 50 years and [am] suffering economic loss each year

2 The magistrate court dismissed petitioner’s original action, finding that it lacked the jurisdiction to adjudicate a boundary dispute. Petitioner did not appeal the dismissal.

3 On appeal, petitioner argues that he also cl aimed in his complain t that respondent was responsible for the disappearan ce of two boundary markers along the western border of its property. Based on our review of the complaint and its attachments, we find that petitioner indicated the location of the missing boundary markers on a map that he attach ed as an exhibit, but failed to claim that respondent caused their loss in his complaint. Therefore, we decline to address the issue of the boundary markers as it was not adequately presented to the circuit court for a ruling. See Syl. Pt. 2, Sands v. Sec. Trust Co. , 143 W.Va. 522, 102 S.E.2d 733 (1958).

2in the form of forage corps harvested from the cultivated fields involved. We must now address the problem, which could be solved by the requ ested action. If you wish to discuss this matter on[-]site[, I] shall make it a point of my next visit there[.] 4

In its motion for summary judgment, responde nt argued that, “assumi ng all allegations of [petitioner] are true,” it was entitled to judgm ent as a matter of law on his nuisance claim. 5 With regard to the adverse possession claim, respondent argued that the August 1, 2012, letter showed that petitioner recognized the ownership interests of both it and its predece ssors-in-title regarding the strip of land along the southern boundary of its property that petitioner was claiming to hold adversely. On April 10, 2016, pe titioner filed a response to the summary judgment motion. Following a May 4, 2016, hearing on the motion, the ci rcuit court found that “ no genuine issues of material fact exist” regarding petitioner’s nu isance and adverse possession claims and awarded respondent judgment as a matter of law by order entered May 22, 2017. 6 Petitioner now appeals

this order.

“A circuit court’s entry of summary judgment is reviewed de novo .” Syl. Pt. 1, Painter v. Peavy , 192 W.Va. 189, 451 S.E.2d 755 (1994) . Rule 56(c) of the West Virginia Rules of Civil Procedure provides that summary j udgment shall be granted where “t here is no genuine issue as to any material fact and that the movi ng party is entitled to a judgment as a matter of law.” In syllabus point four of Painter , we held that “[s]ummary judgment is appropriate where the record taken as a

whole could not lead a rational tr ier of fact to find for the no nmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” 192 W.Va. at 190, 451 S.E.2d at 756.

On appeal, petitioner argues that the circuit court erred in awarding respondent summary judgment on his nuisance and adverse possession clai ms. We first address th e nuisance claim. In syllabus point two of Bansbach v. Harbin , 229 W.Va. 287, 728 S.E.2d 533 (2012), we reiterated that “[a] private nuisance is a substantial and unreasonable interference with the private use and enjoyment of another’s land.” (quoting Syl. Pt. 1, Hendricks v. Stalnaker , 181 W.Va. 31, 380 S.E.2d 198 (1989)) (emphasis added).

Respondent argues that none of petitioner’s complaints alleging the existence of a

4 Petitioner is a resident of the State of New York.

5 Respondent further argued that petitioner’ s nuisance claim was barred by the two-year

statute of limitations set forth in West Virginia Code § 55-2-12(a).

6 The circuit court further f ound that the nuisance claim was time-barred under West Virginia Code § 55-2-12(a). However, having f ound that the circuit cour t appropriately granted respondent’s motion for summary judgment on the merits of the nuisance claim, see infra , we decline to address the issue of the statute of limitations.

3nuisance on the western boundary of its property amount to a substantial and unreasonable

interference with the use of petitioner’s land. Respondent further contends that petitioner’s argument that it is interfering with the enjoym ent of his property is somewhat unclear given petitioner’s verbatim recital of ma ny of the circuit court’s findings in respondent’s favor. Based on our review of petitioner’s brief, we find that, in the two instances wh ere he cites to a legal authority regarding his nuisance claim, he is simply citing part of the ci rcuit court’s findings. “Although we liberally construe briefs in determining issues presented for review, issu es which are not raised, and those mentioned only in passing but are not supported with pertin ent authority, are not considered on appeal.” State v. LaRock , 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) (citing State v. Lilly , 194 W.Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995)). Therefore, we decline to address fallen tree limbs and an alleged invasion by roots as petitioner has failed to present an adequate argument rega rding those issues.

Petitioner does state that the circuit court fa iled to specifically rule on his claim that respondent must remove deer stands from trees near the western bounda ry line of its property because he does not allow hunting on his farmla nd. Respondent counters th at the circuit court found that all of petitioner’s “all egations [were] not a substan tial and unreasonable interference with” the use and enjoyment of his property. We note that, in petitioner’s complaint, he stated that he could not adequately police the area to ensure that no hunters shoot on to his property. We find that the claim has proven to be no more than spec ulation because petitioner does not state that he could produce evidence at tr ial that respondent allows persons using the deer stands on its property to shoot onto petitioner’s property. 7 We note that “conclusory speculation” does not create a genuine issue of material fact su fficient to necessitate a trial. See Gibson v. Little General Stores,

Inc. , 221 W.Va. 360, 364, 655 S.E.2d 106, 110 (2007).

Furthermore, based on our review of the reco rd, we agree with res pondent’s position that the essence of petitioner’s nuisance claim is his contention that insufficient sunlight caused by overhanging trees on respondent’s property has resu lted in his farmland yielding fewer crops. We

find that this claim fails as a matter of law. As respondent notes, th e common law doctrine of ancient lights has been abolished in West Virginia. Syl. Pt. 2, Powell v. Sims , 5 W.Va. 1 (1871); W.Va. Code § 2-1-2. Though an adjoining property owner may still establis h an easement implied by necessity to light and air, such an easemen t does not exist here because there is no prior common ownership of the partie s’ properties. Syl. Pt. 4, Cobb v. Dougherty , 225 W.Va. 435, 693 S.E.2d 800 (2010) (setting forth th e elements required for establ ishing an easement implied by necessity). So, while Cobb recognized that a certain type of an easement to li ght and air still exists in West Virginia, see id. at 444 n.10, 693 S.E.2d at 809 n.10, the legal requirements are not met in this case. Therefore, we concl ude that the circuit court did not err in awarding respondent judgment as a matter of law with regard to petitioner’s nu isance claim.

We now address petitioner’s adverse possession claim. In Somon v. Murphy Fabrication &

Erection Co. , 160 W.Va. 84, 89, 232 S.E.2d 524, 528 (1977), we noted that the period for holding

7 Petitioner is not clear as to whether a fence presently exists along the western boundary of respondent’s property as he indicate s that the fence needs to be eith er repaired or “restore[d].”

4property under the doctrine of adve rse possession “is co-equal to th e statute of limitations barring suits for recovery of real property which . . . is ten years.” See W.Va. Code § 55-2-1. “The law

should not allow the land of one to be taken by another, without a conveyance or consideration, merely upon slight presumption or probabilities.” Brown v. Gobble , 196 W.Va. 559, 564-65, 474 S.E.2d 489, 494-95 (1996). Accordingl y, in syllabus point two of Brown , we held that “[t]he burden is upon the party who claims title by adve rse possession to prove by clear and convincing

evidence all elements essential to such title.” Id. at 561, 474 S.E.2d at 491. Those elements are:

One who seeks to assert title to a tr act of land under the doctrine of adverse possession must prove each of the followi ng elements for the requisite statutory period: (1) That he has held the tract a dversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That po ssession has been under claim of title or

color of title.

Somon , 160 W.Va. at 85, 232 S.E.2d at 525, syl. pt. 3.

Petitioner restates his allegations that he has used a 40 feet wide, 1,010 feet long strip of land along the southern property line for the harves ting of wood and a gas pipeline pursuant to a right-of-way. Respondent counters that petitione r’s allegations do not constitute clear and convincing evidence that all the required elemen ts for establishing adverse possession would be proven at trial. With specific regard to the second allegation, we find that the use of the strip of land pursuant to a right-of-way does not satisfy th e first element necessary to prove petitioner’s

claim—that of “hostile” or “advers e” possession—as such use would not be inconsistent with the

title of the servient estate’s owner. See id. at 90, 232 S.E.2d at 528. Finally, to the motion for summary judgment, respondent atta ched petitioner’s August 1, 2012, lett er to its president for the purpose of showing that petitioner recognized the ownership interests of both it and its predecessors-in-title re garding the strip of land in question.

In petitioner’s response to the motion for su mmary judgment, he failed to do any of the things that a nonmoving party should do to respond to a well-supported motion for summary judgment. In syllabus point three of Williams v. Precision Coil, Inc. , 194 W.Va. 52, 459 S.E.2d 329 (1995), we held:

If the moving party makes a prop erly supported motion for summary judgment and can show by affirmative eviden ce that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate th e evidence attacked by th e moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why fu rther discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.

Accordingly, we find that th e circuit court properly found th at there was no genuine issue of a material fact rega rding petitioner’s adverse possession cl aim and that respondent was entitled

5to judgment as a matter of law. Therefore, we concl ude that the circuit court did not err in awarding respondent summary j udgment on both of petitioner’s claims.

For the foregoing reasons, we affirm the circuit court’s May 22, 2017, order granting respondent’s motion for summary judgment.

Affirmed.

ISSUED: May 18, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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