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Strahin v. Lantz
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1995 Term
NO. 22099 _________
JAMES ALBERT STRAHIN; DANIEL RAY STRAHIN, AN INFANT, BY WILLA STRAHIN, HIS GUARDIAN; RICHARD NEWMAN AND FREDA NEWMAN; AND CLOVIS NEWMAN AND BEULAH NEWMAN, Plaintiffs Below, Appellants
V.
VONDA LEE LANTZ, Defendant Below, Appellee
Appeal from the Circuit Court of Barbour County Honorable John L. Waters, Judge Civil Action No. 93-C-26
REVERSED AND REMANDED
Submitted: January 24, 1995                 Filed: February 17, 1995
Robert J. Shostak Sowash, Carson & Shostak Athens, Ohio Patrick C. McGinley Morgantown, West Virginia Attorneys for Appellants
G. W. Morris II Morris & Morris Philippi, West Virginia Attorney for Appellee
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment. SYLLABUS BY THE COURT

1. "'"The finding of a trial court upon the facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding." Syl. pt. 7, Bluefield Supply Company v. Frankels [Frankel's] Appliances, Inc., 149
W. Va. 622, 142 S.E.2d 898 (1965).' Syl. pt. 1, Burns v. Goff, 164 W. Va. 301, 262 S.E.2d 772 (1980)." Syllabus Point 2, Shrewsbury v. Humphrey, 183 W. Va. 291, 395 S.E.2d 535 (1990).
2. Abandonment of an easement of prescription is a question of intention that may be proved by nonuse combined with circumstances which evidence an intent to abandon the right. It is the burden of the party asserting the absence of an easement by prescription to prove abandonment by clear and convincing evidence. Cleckley, Justice:
        In this property case involving the use of an easement by prescription, the appellants and plaintiffs below, James Strahin, et al., brought suit to enjoin the appellee and defendant below, Vonda Lee Lantz, from locking a gate to the road which accesses their property. They appeal an order of the Circuit Court of Barbour County entered June 30, 1993, which held the prescriptive easement was extinguished due to abandonment.See footnote 1 The plaintiffs argue this Court should adopt the majority view and hold abandonment must be shown by clear and convincing evidence of nonuse coupled with evidence of intent to abandon. They contend no evidence of such intent was introduced below and request this Court to reverse the judgment.
I.
        The defendant owns approximately sixty acres of land in Barbour County, a portion of which is adjacent to County Route 5/10. The plaintiff James Strahin purchased a 5.75 acre tract of land from the plaintiff Richard Newman in August of 1992.See footnote 2 To access the property, it is necessary to take Miner Road which is a dirt roadway off Route 5/10 that travels over the defendant's property and leads to Miner Hollow.
        In the early 1900s, when the local coal mine was in operation, many houses were located up Miner Hollow. Persons living up the hollow would travel Miner Road across the defendant's property without her permission. The evidence is undisputed that a prescriptive easement was created across Miner Road.See footnote 3 When the coal mine closed, the families moved away and the houses deteriorated. In 1985, the defendant placed a gate across the road. The owners of the property up Miner Hollow continued to pass through the gate on occasion to access their property to cut grass, care for gardens, and hunt game.
        From the middle 1940s to the middle 1950s, the defendant's cousin, Mr. Sandridge, owned a home on the 5.75 acre tract now owned by James Strahin. The home was abandoned in the early 1960s and was later destroyed by fire. The issue in this case is whether the prescriptive easement created by the driveway leading from Miner Road to the homesite was extinguished by abandonment.
        James Strahin plans to construct a home on the tract. The defendant maintains she suffered property damage when a gas line leading to her home was broken and certain trees were cut down from her side of the property line as a result of bulldozing the road in preparation for construction of the home. This lawsuit was initiated after she placed a lock on the gate and would not allow persons to travel on Miner Road.
        The case was tried upon the facts without a jury. After hearing arguments, testimony from the parties and witnesses who had lived up Miner Hollow, and a view of the area, the circuit court issued specific findings of fact and conclusions of law. The circuit court found the prescriptive easement over the defendant's land from Miner Road to the
5.75 acre tract was extinguished by abandonment. Accordingly, it held that James Strahin was not entitled to travel over the driveway in question to access the land. This appeal ensued.
II.        In this case we follow the standard of review articulated in Syllabus Point 2 of Shrewsbury v. Humphrey, 183

W.
Va. 291, 395 S.E.2d 535 (1990):


                "'"The finding of a trial court upon the facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding." Syl. pt. 7, Bluefield Supply Company v. Frankels [Frankel's] Appliances, Inc., 149
W. Va. 622, 142 S.E.2d 898 (1965).' Syl. pt. 1, Burns v. Goff, 164 W. Va. 301, 262 S.E.2d 772 (1980)."
When an action is tried upon the facts without a jury, the circuit court "shall find the facts specially and state separately its conclusions of law thereon . . . [and these] [f]indings . . . shall not be set aside unless clearly erroneous[.]" W. Va. R. Civ. P. 52(a). See Lewis v. Dils Motors Co., 148 W. Va. 515, 135 S.E.2d 597 (1964). A reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm "[i]f the [circuit] court's account of the evidence is plausible in light of the record viewed in its entirety[.]" Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S. Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985). However, "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L.Ed. 746, 766 (1948). Finally, "[i]f the trial court makes no findings or applies the wrong legal standard . . . no deference attaches to such an application." State v. Farley, ___ W. Va. ___, ___, ___ S.E.2d ___, ___ (No. 22139 11/18/94) (Slip op. at 8). Applying these principles to the facts of this case, we are of the opinion that the circuit court's findings were clearly erroneous and the final judgment constitutes an abuse of discretion.
        This Court has never directly addressed the factors necessary to show termination of a prescriptive easement by abandonment.See footnote 4 In an analogous situation addressed in Moyer v. Martin, 101 W. Va. 19, 24, 131 S.E. 859, 861 (1926), we set forth the situations in which an owner of an easement by grant may lose his rightsSee footnote 5:
        "Having once been granted to him, he cannot lose it by mere non-user. . . . He may lose it by adverse possession by the owner of the servient estate for the proper length of time . . . , or by abandonment, not by mere non- user, but by proofs of an intention to abandon; or, of course, by deed or other instrument in writing." (Citations omitted).
Section 504 (Easements) of the Restatement of Property states the majority rule that abandonment must be shown by evidence of intent to discontinue the use and that evidence of nonuse, without more, is insufficient to extinguish the right. "Abandonment is a question of intention and may be proved by a cessation of use coupled with circumstances clearly showing an intention to abandon the right." 6B Michie's Jurisprudence, Easements

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