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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.
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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.
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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
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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.
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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
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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
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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
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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.”
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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.
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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
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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.
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