William C. Garrett
Elizabeth G. Farber
Gassaway, West Virginia
Attorneys for the Appellant

Jeffrey A. Kimble
Robinson & McElwee
Clarksburg, West Virginia
and
Toni M. Nesselrotte
Fairmont, West Virginia
Attorneys for the Appellee,
Allegheny Power

Michael Kozakewich, Jr.
Steptoe & Johnson
Clarksburg, West Virginia
Attorney for the Appellee,
State of West Virginia

The Opinion of the Court was delivered PER CURIAM.            

JUSTICE DAVIS and JUSTICE MAYNARD dissent and reserve the right to file dissenting opinions.

        In a February 12, 1925, deed from T. E. West to W. E. Robinson separating the fifteen-acre tract now owned by the Appellant from the Shoulders tract, an express provision was included for “a free right of way in and to said fifteen acres tract of land, which right of way is to extend in the most practical course or direction through the tract of land this day described in deed to the said T. E. West and the tract described in a deed of same date to the said Lillie Smith and to extend from said 15 acre tract of land to the tract of land now owned by David Golden, all of said tracts of land being a part of said Amos R. Shoulders tract of land. . . .” The Appellant contends that such right of way was intended to create access from the fifteen-acre tract to County Road 7, west of the fifteen-acre tract.

        Various other conveyances of the fifteen-acre tract were made from 1925 to the present, all referencing the right of way for ingress and egress to the fifteen-acre tract.   (See footnote 2) 

A 1970 conveyance referenced the right of way “to said 15 acres, more or less, of land, for use as a means of ingress and egress to and from same. . . .”

        On June 16, 1971, DOH entered into a written agreement with APC under which several public roads, including County Road 7 , were to be abandoned and destroyed when Stonecoal Lake was created by APC. As part of this 1971 agreement, APC agreed to construct alternate roads to replace the destroyed public roads. APC purchased the remaining three tracts that were originally part of the Shoulders tract. Thus, of the original Shoulders property, only the Appellant's fifteen-acre tract is not currently owned by APC.

        APC constructed Stonecoal Lake in 1972. By lease dated October 1, 1972, APC leased the certain properties surrounding the lake to the DNR. The Stonecoal Lake Wildlife Management Area (hereinafter “WMA”) is managed by the DNR, “subject to all leases, liens, easement, rights of way, or other encumbrances, whether or not of record, now outstanding or created hereafter with respect to the premises.” While the record is not entirely clear regarding what additional roads were constructed by APC, the DOH did eventually formally abandon County Road 7.

        On September 26, 1996, the Appellant purchased the fifteen-acre tract of property in question. The deed included, verbatim, the reference to the 1925 deed and the right of way. The Appellant also purchased four other bordering tracts not originally part of the Shoulders tract, totaling 150 acres. A twenty-five-acre tract purchased by the Appellant lies between the fifteen-acre tract and County Road 14/3.   (See footnote 3) 

        The Appellant contends that a road constructed by APC, known as the “North Lake Road,” is the alternate road contemplated by the 1971 agreement between DOH and APC. North Lake Road, which runs essentially parallel to the abandoned and submerged County Road 7, is gated and locked beyond a public access boat landing on Stonecoal Lake, and APC contends that North Lake Road is a private maintenance road rather than a replacement for County Road 7. Based upon information obtained from his predecessor in title, the Appellant requested a key to the gate at the French Creek Game Farm, and his request was denied.   (See footnote 4)  The Appellant then requested a key from APC. APC allegedly informed the Appellant that it would obtain a key for him, but the Appellant never received the key.

        On November 14, 1997, the Appellant filed a complaint in the lower court, seeking an easement and right of way on North Lake Road in order to gain access to his fifteen-acre tract. In the alternative, the Appellant sought damages for loss of his right of way and enjoyment of his property. The Appellant contends that his fifteen-acre tract is now, for all practical purposes, landlocked. The Appellees questions that assertion, emphasizing that a portion of the total 150 acres owned by the Appellant borders County Road 14/3, which could also provide access to the adjoining fifteen-acre tract from the east.
    
        Subsequent to discovery, the Appellees filed a joint motion for summary judgment on November 24, 1999. The Appellant filed a December 16, 1999, memorandum in opposition to the motion for summary judgment, alleging that genuine issues of material fact existed and outlining those issues. The lower court conducted a hearing on the motion for summary judgment on December 21, 1999, and granted summary judgment against the Appellant by order dated January 5, 2000. The lower court held that the applicable two-year statute of limitations had expired and that even if the statute did not render the Appellant's case moot, he had been divested of the easement by adverse possession since APC had used the properties for ten years adversely to the Appellant's interests.

        On January 26, 2000, the Appellant filed a “Motion to Reconsider and/or Clarify” the January 5, 2000, order. There is disagreement among the parties regarding whether this motion should be characterized as a Rule 60(b) motion, thereby failing to toll the running of the appeal period to this Court, or a Rule 59(e) motion, tolling the running of the appeal period.   (See footnote 5)  The Appellant contends that he intended his motion for reconsideration as a Rule 59(e) motion and filed it within ten business days of his receipt of the January 5, 2000, order. The lower court denied the motion to reconsider by order entered September 18, 2000, and the Appellant filed his petition for appeal of that denial with this Court on January 16, 2001.

        This Court articulated the distinction between a Rule 59(e) and a Rule 60(b) motion in syllabus point three of Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992), as follows: “A motion which would otherwise qualify as a Rule 59(e) motion that is not filed and served within ten days of the entry of judgment is a Rule 60(b) motion regardless of how styled and does not toll the four month appeal period for appeal to this court.” See also Rose v. Thomas Memorial Hosp. Foundation, Inc., 208 W.Va. 406, 541 S.E.2d 1 (2000); State ex rel. McDowell County Sheriff's Dep't v. Stephens, 192 W.Va. 341, 452 S.E.2d 432 (1994). Likewise, this Court explained as follows in syllabus point two of Powderidge Unit Owners Association v. Highland Properties, Ltd.,196 W.Va. 692, 474 S.E.2d 872 (1996):

            When a party filing a motion for reconsideration does not indicate under which West Virginia Rule of Civil Procedure it is filing the motion, the motion will be considered to be either a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from a judgment order. If the motion is filed within ten days of the circuit court's entry of judgment, the motion is treated as a motion to alter or amend under Rule 59(e). If the motion is filed outside the ten-day limit, it can only be addressed under Rule 60(b).

        The Appellant contends that the filing of his January 26, 2000, motion should be considered a Rule 59(e) motion tolling the running of the statute of limitations and permitting full appellate review of the underlying summary judgment action.   (See footnote 7)  The Appellant cannot prevail in that argument, however, because the January 26, 2000, motion was not filed within ten days of the January 5, 2000, entry of the lower court's summary judgment order. The Appellant attempts to escape this conclusion by arguing that the ten-day time limitation did not begin to run until he received the order in the mail. This is not the correct standard, and the Appellant's argument in that regard fails. Applying the computation of time periods set forth in Rule 6(a) of the West Virginia Rules of Civil Procedure, the tenth day after the entry of the judgment, excluding weekends and holidays as the rule requires, was January 20, 2000. The motion was not filed until January 26, 2000. Consequently, the January 26, 2000, motion must be considered a Rule 60(b) motion and managed accordingly.   (See footnote 8) 

        Further, in syllabus point five of Toler, this Court explained that “[a] motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.” In assessing the issue of whether a lower court abused its discretion in denying Rule 60(b) relief, this Court explained as follows in syllabus point six of Toler: “A court, in the exercise of discretion given it by the remedial provisions of Rule 60(b), W.Va.R.C.P., should recognize that the rule is to be liberally construed for the purpose of accomplishing justice and that it was designed to facilitate the desirable legal objective that cases are to be decided on the merits.”   (See footnote 9) 

        In Powderidge, this Court explained that while Rule 60(b) is not an invitation for relitigation, it may be used to encourage a court to reconsider a prior determination. Specifically, this Court stated:

            Although Rule 60(b) does not explicitly allow a party to file a motion for clarification and reconsideration, it is well established that a proper Rule 60(b) motion may urge a court to reconsider or vacate a prior judgment. Syl. pt. 3, Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992); Bego v. Bego, 177 W.Va. 74, 78, 350 S.E.2d 701, 705 (1986); CNF Constructors, Inc. v. Donohoe Construction Co., 57 F.3d 395, 400-401 (4th Cir.1995) (per curiam); 11 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2857 at 254-64 (2nd ed. 1995).

196 W.Va. at 704-05, 474 S.E.2d at 884-85 (footnote omitted).

        The liberal construction of Rule 60(b), particularly within the context of a summary judgment determination, is evident in this Court's resolution in Wolford v. Landmark American Ins. Co., 196 W.Va. 528, 474 S.E.2d 458 (1996). In Wolford, this Court encountered a situation in which a Rule 60(b) motion for relief from a summary judgment determination had been denied. Based upon this Court's determination that a genuine issue of material fact existed, the Court concluded that “the denial of the appellant's Rule 60(b) motion concerning Landmark constituted an abuse of discretion.” Id. at 529, 474 S.E.2d at 459. The Court consequently remanded for further proceedings. Id.

        Similarly, in Foster v. Good Shepherd Interfaith Volunteer Caregivers, Inc., 202 W.Va. 81, 502 S.E.2d 178 (1998), this Court held, based upon the existence of genuine issues of material fact, that the lower court erred in granting summary judgment   (See footnote 10)  and abused its discretion in denying the appellant's Rule 60(b) motion to vacate its order of dismissal. Id. at 85, 502 S.E.2d at 182.

        In State ex rel. Consolidation Coal Co. v. Clawges, 206 W.Va. 222, 523 S.E.2d 282 (1999), this Court again emphasized the liberal construction afforded a Rule 60(b) inquiry and utilized a Rule 60(b)(6) motion to permit an order to be vacated.

        There existed a very good “reason justifying relief from the operation of the judgment.” W.Va. R. Civ. P. 60(b)(6). That reason was that the circuit court entered the order granting the Petitioner an additional $1,000,000 in insurance coverage without first determining whether the settlement agreement under which the Petitioner was to receive the additional money even existed.

Id. at 230, 523 S.E.2d at 290. Thus, this Court has repeatedly employed a Rule 60(b)(6) analysis to explore elements of the underlying judgment in the legitimate effort to determine whether a trial court abused its discretion in denying relief.

        In the present case, although the Appellant has not succeeded in his attempt to persuade this Court that he has perfected a Rule 59(e) challenge to the underlying order of summary judgment, our liberal construction of Rule 60(b) and the attendant appellate review of a Rule 60(b) denial permits this Court to review this issue under an abuse of discretion standard. Our review for abuse of discretion necessarily entails some degree of consideration of the underlying claims presented to the lower court to determine whether the lower court abused its discretion in denying the Appellant's motion for reconsideration.
    

        This Court has also emphasized that, “[i]n determining on review whether there is a genuine issue of material fact between the parties, this Court will construe the facts 'in a light most favorable to the losing party.'” Alpine Property Owners Association, Inc., v. Mountaintop Development Company, 179 W.Va. 12, 17, 365 S.E.2d 57, 62 (1987) (quoting Masinter v. Webco Co., 164 W.Va. 241, 242, 262 S.E.2d 433, 435 (1980)). The nonmoving party is entitled to “the benefit of all inferences, as '[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]'” Williams v. Precision Coil, 194 W.Va. 52, 59, 459 S.E.2d 329, 336, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Likewise, we have concluded that “[t]he inferences to be drawn from the underlying affidavits, exhibits, answers to interrogatories, and depositions must be viewed in the light most favorable to the party opposing the motion.” Hanlon v. Chambers, 195 W.Va. 99, 105, 464 S.E.2d 741, 747 (1995). “On a motion for summary judgment, neither a trial nor appellate court can try issues of fact; a determination can only be made as to whether there are issues to be tried. To be specific, if there is any evidence in the record from any source from which a reasonable inference can be drawn in favor of the nonmoving party, summary judgment is improper.” Id. at 105, 464 S.E.2d at 747.

        As we observed in Armor v. Lantz, 207 W.Va. 672, 535 S.E.2d 737 (2000), “[c]ourts must strenuously avoid assuming the role of trier of fact in ruling on motions for summary judgment:” Id. at 677, 535 S.E.2d at 742. “[W]here varying inferences may be drawn from the same evidence, we must view the underlying facts in a light most favorable to the non-moving party.” Id. at 677, 535 S.E.2d at 742.

        The Appellant also contends that the lower court erred in finding that the Appellant had failed to establish a right of way from the Golden tract, now owned by APC, to County Road 7. The express easement granted by title used the phrase “to the Golden tract,” but the Appellant contends that such reference could be properly interpreted as intending a method of access to County Road 7 at or near the Golden tract. The Appellant asserts that subsequent use of such access route created a prescriptive easement, even if the express language of the deed failed to create an easement through the Golden tract to County Road 7.

        The Appellant also asserts that the lower court erred in ruling that the doctrine of adverse possession divested the Appellant of any rights to the easement. The Appellees maintain that any easement, whether by express language in the deed or by prescription, was extinguished through adverse possession since the maintenance road had been barricaded since 1972. The Appellant also contends that the lower court erred in finding that County Road 14/3 can be used as access to the fifteen-acre tract. The Appellant contends that it is not economically feasible to enter the fifteen-acre tract from County Road 14/3 and across the twenty-five-acre tract also owned by the Appellant. Thus, the Appellant maintains that the lower court erred in concluding that no easement by prescription or by necessity was supported by the facts.

        The Appellant also maintains that the lower court erred in ruling that the statute of limitations barred any action filed afer 1976 regarding the Appellees' closure of North Lake Road. The Appellant contends that North Lake Road is a public road, to which no statute of limitations applies where an individual is challenging his right to access. In the alternative, the Appellant contends that even if North Lake Road is a private road, he did not “discover” his cause of action against APC until he was denied access. He consequently maintains that the discovery rule tolled the statute of limitations. The Appellees assert that the discovery rule does not apply to toll the statute since no action was taken which prevented the predecessors in title from discovering that the road was barricaded.

        In the present case, the lower court was presented with numerous factual assertions by all litigants. From the evidence presented, the following essential facts can be gleaned. County Road 7 was initially a public highway providing access to both the general public and any property owners who accessed their private property by traveling County Road 7. The fifteen-acre tract now owned by the Appellant became landlocked when it was divided from the Shoulders tract, and access to the public road was obtained by traveling west to County Road 7 across two other tracts of land. That access was set forth by express easement in 1925, as quoted above, and similar language was used to create an easement in the Appellant's deed.

        The Appellees contend that the express easement provided access only to the Golden tract, rather than through the Golden tract to County Road 7. The Appellant counters that argument by asserting that the easement was created either through the express language of the deeds, by necessity,   (See footnote 12)  or by prescription.   (See footnote 13)  There is evidence in the record that the express language of the deeds created an easement at least to the Golden property, and the Appellant presented evidence that residents had consistently used that easement to access County Road 7. The consistency of use is also relevant to a determination of whether adverse possession by APC would have deprived the Appellant of use of his alleged easement. These issues were not developed sufficiently at the lower court level. The Appellant's assertions in this matter, as well as the refutations of the Appellees, created undetermined and material issues of fact with regard to the Appellant's current rights to use the easement for access to his property.

        With regard to the Appellant's right to utilize North Lake Road, the 1971 agreement between APC and DOH is implicated. That agreement, in essence, provided that APC would relocate County Road 7 to provide access to property owners who utilized County Road 7 as access to their properties.   (See footnote 14)  We find that further development is essential to determine whether the Appellant's rights have been violated by the abandonment and relocation procedures chosen by APC and DOH. When the State elected to abandon County Road 7, several concerns should have been identified, including relocation of roads for use by the general public and entitlement to alternate access or compensation for removal of access by certain property owners using County Road 7. It was incumbent upon the lower court to determine the manner in which the 1971 agreement affected the rights of the Appellant, with all inferences at the summary judgment stage being drawn in favor of the Appellant, as the non-movant.   (See footnote 15) 

        The agreement required APC to acquire fee title to all properties abutting the portions of the roads to be destroyed. The Appellant raised a genuine issue of material fact regarding whether APC properly obtained fee title, free of encumbrances. The title APC was obligated to obtain included whatever public or private rights-of-way historically served adjoining properties, whether arising before or after this State assumed responsibility for some public roads in 1933 and thereafter.   (See footnote 16)  The extent to which APC obtained fee title, free of liens and encumbrances, is the very gravamen of this civil action. DOH relied upon APC's certification of title at its own peril. If, in fact, the lower court finds that the Appellant had a right of access to County Road 7, then DOH and APC may have effected a taking of an extremely valuable right of access for which the Appellant has not been compensated.   (See footnote 17)  While the statutes governing the authority of DOH permit it to abandon public rights of way, the right of the public and abutting landowners to have a continued means of ingress and egress or just compensation is ignored where the abandonment powers are regarded as plenary.

        A genuine issue of material fact also exists with regard to the Appellant's access to his property through County Road 14/3. The Appellees maintain that the Appellant does not need to use North Lake Road to access his property since County Road 14/3 borders another tract owned by the Appellant on the eastern border of the fifteen-acre tract in question. The Appellant, however, introduced evidence indicating that it was not economically feasible to utilize County Road 14/3 to access the fifteen-acre tract due to the difficult terrain. Again, in granting summary judgment, the lower court is obliged to draw inferences in favor of the non-movant. The issue of whether County Road 14/3 is a possible entrance for the fifteen-acre tract and whether access via North Lake Road is by necessity is another issue of material fact which has not been resolved.   (See footnote 18) 

        Application of the two-year statute of limitations and the discovery rule create additional issues of fact based upon the Appellant's contention that the discovery rule applies and tolls the statute of limitations. The Appellant contends that the 1971 agreement did not adequately address his property rights, alternate roads were not properly constructed, and his property became landlocked. The Appellant further contends that he did not discover this violation until he was denied access to the road leading to his property. Further development of the facts is necessary to determine the Appellant's entitlement to relief under his discovery rule argument. As this Court stated in Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990), also involving a statute of limitations challenge based upon West Virginia Code 55-2-12 (19 ), “[b]ecause there is a material question of fact with regard to when the plaintiffs' right of action accrued so as to commence the running of the statute of limitations, the matter was clearly a question for the jury.” Id. at 322, 400 S.E.2d at 566.   (See footnote 19) 

        We also feel constrained to mention the issue of the burden to North Lake Road. Although the issue has not been squarely placed before this Court, there has been some indication that the Appellant seeks to construct a residential subdivision on his property and utilize North Lake Road as access. If this issue surfaces on remand, obvious questions of burden to the easement will be raised, and additional issues of fact may arise.

    Conclusion

        Upon review of the issues in the present matter, the January 5, 2000, summary judgment order, and the Appellant's January 26, 2000, motion for reconsideration, we conclude that the lower court abused its discretion in denying the Rule 60(b) relief. We find that the Appellant demonstrated “sufficient grounds for disturbing the finality of the judgment.” Syl. Pt. 4, Toler, 157 W.Va. at 778, 204 S.E.2d at 86. This conclusion is particularly inescapable in light of the admonitions of syllabus point six of Toler cautioning a trial court to “recognize that the rule [Rule 60(b)] is to be liberally construed for the purpose of accomplishing justice and that it was designed to facilitate the desirable legal objective that cases are to be decided on the merits.”

            We continue to caution trial counsel that a “motion for reconsideration” is not explicitly sanctioned by the West Virginia Rules of Civil Procedure. There are good reasons to avoid the label. As a title, it is meaningless and, more significantly, when a motion is designated merely as a “motion for reconsideration,” the party employing the term gives the court nearly unfettered discretion to determine its meaning and scope. These problems can be avoided by counsel labeling the motion according to the rule he or she believes is applicable.

196 W.Va. at 705 n.22, 474 S.E.2d at 885 n.22. A direct appeal from a summary judgment order is the more appropriate means through which to challenge the legal sufficiency of the

ruling.

        Where one owns and conveys a portion of his land which is completely surrounded by the retained land or partially by the land of the grantor and the land of others, without expressly providing a means of ingress and egress, and where there is no other reasonable means of access to the granted land, the law implies an easement in favor of the grantee over the retained portion of the original land of the grantor.