PROPERTY

Gary S. Brown and Mitzi M. Brown v. David L. Gobble and Sue Ann Gobble, No. 23173 (W. Va. May 17, 1996) (Cleckley, J.):

Reversing a judgment in an adverse possession case, the Court held (1) the deference accorded a trial court sitting as the trier of fact will not apply where (i) a relevant fact that should have been given significant weight was not considered, (ii) the trial court commits an "error of judgment," or (iii) the trial court failed to exercise any discretion in issuing its findings; (2) the burden is upon the party asserting adverse possession to prove it by "clear and convincing evidence;" and (3) in order to permit "tacking" of successive adverse possession claims, there must have been a transfer of "possession" of the property in question, not merely a transfer of "title" to the property.

Rebecca A. Thomson v. Erma McGinnis; Robert R. Vitello; The Property Centre, Inc.; David R. Stephens; and D&R Builders, No. 22872 (W. Va. December 15, 1995) (Workman, J.): 195 W.Va. 465, 465 S.E.2d 922:

Reversing an award of summary judgment in an action instituted by a home buyer alleging fraud and negligence in conjunction with the purchase of her home, the Court held that although a real estate broker bears no responsibility to conduct an independent investigation of latent defects, when such broker volunteers to secure an inspection of the premises, by retaining on behalf of the buyer a third party to conduct such inspection, then the real estate broker may be held liable if the selection of such inspector is performed negligently and proximately causes harm to the buyer.

County Commission of Boone County v. Lee O. Hill, Trustee; Jerry W. Cook; Mid American National Bank & Trust Company, Trustee; Haddad & Associates II; Boone County Building Commission; Americare Corporation; Boone County Health Care Corporation; and Care Enterprises, Incorporated, No. 22725 (W. Va. July 13, 1995) (Workman, J.): 194 W.Va. 481, 460 S.E.2d 727:

Reversing an award of summary judgment where a county asserted that a property owners' abandonment of a nursing home following a labor dispute triggered reverter and subordination clauses in a deed executed in conjunction with bond financing of its construction, the Court held that mere nonuse is alone insufficient to establish the abandonment required to trigger a reverter clause.

James Albert Strahin; Daniel Ray Strahin, an infant, by Willa Strahin, his guardian; Richard Newman and Freda Newman; and Clovis Newman and Beulah Newman v. Vonda Lee Lantz, No. 22099 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 285, 456 S.E.2d 12:

Despite the existence of a fence, gas line, and trees, for several years, across a disputed driveway, the Court reversed a trial court's finding that the easement had been abandoned, holding that (1) abandonment of a prescriptive easement is a question of intent that may be established by evidence of nonuse combined with circumstances indicated an intention to abandon and (2) abandonment of a prescriptive easement must be demonstrated by clear and convincing evidence.

Roscoe Mills v. Fred Van Kirk, in his official capacity as Commissioner of the West Virginia Division of Highways and Philip Keller and Donna J. Keller, No. 22270 (W. Va. December 21, 1994) (Cleckley, J.): 192 W.Va. 695, 453 S.E.2d 678:

In a case involving the appropriate disposition of abandoned turnpike property, the Court held that abutting landowners must receive preferential treatment when purchasing abandoned turnpike and railway property pursuant to W. Va. Code § 17-2A-19 and, accordingly, the highways commissioner must first offer the property to abutting landowners at fair market value prior to placing the property for public sale.

Donald F. Teter and Charlotte Jean Teter v. Old Colony Company, etc., et al., Nos. 21533 and 21534 (W. Va. February 18, 1994) (McHugh, J.): 190 W.Va. 711, 441 S.E.2d 728:

Affirming a judgment against a civil engineering firm, but reversing it as to a real estate broker, in a case arising from damage to residential property resulting from the collapse of a retaining wall, the Court held that a real estate broker may be liable to the purchaser of residential property if the broker makes material misrepresentations, upon which the purchaser substantially relies, regarding the fitness or habitability of the property or fails to disclose defects or conditions which substantially effect its value or habitability and of which the broker should reasonably know that the purchaser is unaware and would not discover by a reasonably diligent inspection. On an unrelated issue regarding damages, the Court held that W. Va. Code § 37-14-1, governing the testimony of real estate appraisers, does not prevent an expert otherwise qualified under R. Evid. 702 from testifying regarding the value of real property or the damages that may have resulted to it.

Sarah E. Dotson v. Hugh M. Cook, Jr., et al., No. 21503 (W. Va. May 25, 1993) (Miller, J.): 190 W.Va. 54, 435 S.E.2d 910:

In a certification proceeding involving the scope of a trial court's jurisdiction in partition suits, the Court held (1) a partition suit may be filed under W. Va. Code § 37-4-1 in the circuit court of any county in which the property or any part thereof is located, and (2) where the parties to a partition suit own separate tracts of land in different counties, the circuit court in one of the counties has jurisdiction to order a partition by way of sale pursuant to W. Va. Code § 37-4-3 of both tracts of land.

Ruth Geibel v. Charles A. Clark and Juanita Clark, No. 19743 (W. Va. July 19, 1991) (McHugh, J.): 185 W.Va. 505, 408 S.E.2d 84:

Where former landowners challenged a 1965 sale of their property for delinquent taxes, the Court held that because retroactive application of the due process notice provisions of Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983), would severely disrupt land titles in West Virginia, all sheriff tax sales of real property, with mere constructive notice, which were conducted before June 22, 1983, may not be challenged under Mennonite, which was decided on that date.

State of West Virginia ex rel. Dennis W. Watson and Crystal E. Watson v. Honorable Sam White, Judge of the Circuit Court of Doddridge County; Andrew J. Long; and Paul M. Cowgill, Jr., No. 20217 (W. Va. July 18, 1991) (Brotherton, J.): 185 W.Va. 487, 408 S.E.2d 66:

Where a deed of trust provided for acceleration of the remaining balance and foreclosure if the grantees cut timber on the trust property without the written permission of grantor, who held the deed of trust, the Court found improper the filing of a notice of lis pendens against the property in connection with a suit brought by the grantor for the value of timber alleged cut in violation of the deed of trust, holding that (1) a notice of lis pendens may be filed only when a person seeks "to enforce any lien upon, right to, or interest in the designated real estate," under W. Va. Code § 55-11-2; (2) the filing of a notice of lis pendens is not property where the primary purpose of an action is to recover money damages, rather than title to or possession of the property; and (3) it is the duty of a trial court to expunge any notice of lis pendens which is improperly filed under W. Va. Code § 55-11-2.

Greg Prince Distributor, Inc., a West Virginia corporation, d/b/a Prince Heating and Air Conditioning v. Robert W. Burk, Jr., and H. F. Salsbery, Jr., Trustees for Opal Brown, et al., No. 19645 (W. Va. March 15, 1991) (Neely, J.): 184 W.Va. 617, 403 S.E.2d 19:

Rejecting a creditor's challenge to the validity of a deed of trust improperly acknowledged by a trustee eleven years earlier, the Court held that such challenge was time barred by the ten-year statute of limitations found in W. Va. Code § 37-11-2, which cures defects in the acknowledgment of any deed or other writing "if a period of ten years has elapsed from the date of recordation."

Wheeling Stamping Company, a corporation v. Warwood Land Company, a corporation, and its successors in interest, and Sol N. Gross, No. 20082 (W. Va. December 11, 1991) (Workman, J.): 186 W.Va. 255, 412 S.E.2d 253:

Invalidating the purchase of a railroad easement executed after the easement had been formally abandoned, the Court held that (1) where there is no recorded document to the contrary, a railroad acquires only a prescriptive easement, rather than a fee, through the use of its tracks, and (2) where property acquired by prescriptive easement for railroad purposes is abandoned by the railroad, the property returns to the freehold to which it previously belonged and there is a rebuttable presumption that it is owned in fee simple by the owners of the abutting land, one-half of the railroad easement to each landowner on his or her respective side of the easement.

Jack R. Ours, G. R. Ours, Jr., and Addie M. Ours v. Grace Property, Inc., a West Virginia corporation, No. 20157 (W. Va. December 11, 1991) (Workman, J.): 186 W.Va. 296, 412 S.E.2d 490:

Terrence L. Joy, Sheila Rae Joy, and Brooks A. Joy v. Chessie Employees Federal Credit Union, No. 20121 (W. Va. November 1, 1991) (Neely, J.): 186 W.Va. 118, 411 S.E.2d 261:

Holding that statutory changes to the procedures for foreclosure on a deed of trust could be applied retroactively, the Court rejected a contention that a former 20-day notice provision applied, holding that, under the new statutory scheme, W. Va. Code § 38-1-4, notice to the grantor of a deed of trust regarding a foreclosure sale must only be given within "a reasonable time before the sale."

Cheryl Lutz, individually and as representative of the beneficiaries designated in paragraph sixth of the Will and Testament of Clara Folio v. Linda May Orinick, No. 19480 (W. Va. December 14, 1990) (McHugh, J.): 184 W.Va. 531, 401 S.E.2d 464:

Reversing a verdict in favor of beneficiaries who had challenged the validity of certain joint bank accounts created to benefit their decedent's caretaker, the Court held that a party must prove fraud or mistake by clear and convincing evidence in order to overcome the conclusive presumption created by W. Va. Code § 31A-4-33 that a donor-depositor of a joint and survivorship account intends to create a causa mortis gift of the balance after his or her death to the surviving joint tenant.

Jeffrey W. Stemple and Judith E. Stemple v. Lewis M. Dobson, Carol Y. Dobson, and Ace Exterminators, Inc., a West Virginia corporation, No. 19559 (W. Va. December 12, 1990) (Miller, J.): 184 W.Va. 317, 400 S.E.2d 561:

Where former homeowners raised an "as is" clause in their real estate contract as a defense to a claim that they had concealed termite damage, the Court held that an "as is" clause will not relieve a vendor of the obligation to disclose a known condition which substantially affects the value or habitability of the property, and which would not be disclosed to the purchaser by a reasonable and diligent inspection, because a failure to disclose such condition constitutes fraud.

E. Shepherdstown Developers, Inc. v. J. Russell Fritts, Inc., No. 19604 (W. Va. October 18, 1990) (Neely, C.J.): 183 W.Va. 691, 398 S.E.2d 517:

Affirming a trial court's rejection of an action for specific performance on an option to purchase certain real estate where the plaintiff waited forty months before attempting to exercise the option, the Court affirmed the general rule that where an option is not limited by the agreement, such option must be acted upon within a reasonable time. The Court also rejected the plaintiff's challenge to the trial court's dismissal of an advisory jury and award of a directed verdict, noting that a suit for specific performance is grounded in equity, and that all of the findings of fact, therefore, were for the trial court to make.

Paul Satterfield and Roy Weese, Trustees of Trinity Assembly of God v. McWhorter Advertising II, Inc., a corporation, No. 19036 (W.Va. July 20, 1990) (Brotherton, J.): 183 W.Va. 634, 398 S.E.2d 116:

Where an advertising company sought to relocate its billboard to within 500 feet of a church in violation of W.Va. Code § 17-22-4(10), the Court held that an outdoor advertising permit granted by the Department of Highways may not be revised in manner which would cause the permit to violate any other statute regulating outdoor advertising.

Mary M. Welch, et al. v. Don B. Cayton, et al., No. 19144 (W. Va. June 26, 1990) (Neely, C.J.): 183 W.Va. 252, 395 S.E.2d 496:

In a dispute over the ownership of a mineral estate severed at the turn of the century, the Court held that where a fee estate in the "surface only" is listed in the tax books and taxed as if the mineral estate has not been severed, but the mineral estate is still separately held and taxed, the erroneous taxation of the mineral estate does not transfer ownership of the minerals to the owner of the surface.

Shirley A. Meade v. Stephen W. Slonaker, Alfred K. Landis, and Alton E. Wolfe, Jr., No. 19302 (W. Va. May 17, 1990) (Neely, C.J.): 183 W.Va. 66, 394 S.E.2d 50:

In affirming a directed verdict in favor of defendants accused of fraud in connection with an alleged promise to plaintiff that if she convinced her friend to sell her 118 acre farm to a third party, plaintiff would receive 10 acres of the farm surrounding her trailer, in which she was living rent-free, the Court held that such agreement is too vague and is therefore not enforceable.

George W. Keyes, Jr., individually and as Administrator of the Estate of George W. Keyes, Deceased v. Robert J. Keyes, Annalaura Keyes, and Maude Keyes, No. 19126 (W. Va. April 16, 1990) (Neely, C.J.): 182 W.Va. 802, 392 S.E.2d 693:

In reversing a trial court's determination that a motor vehicle was a part of decedent's estate, the Court held that when one family member (1) provides the purchase price for a motor vehicle and (2) is listed as a lienholder on the certificate of title in the name of another family member, the person furnishing the cash holds a purchase money resulting trust in the vehicle, which is tantamount to ownership, thereby defeating an assertion that a gift was intended.

Ralph J. Keister and Ruby Keister v. William W. Talbott and Charles F. Herold, Webster County Clerk, No. 19081 (W. Va. April 2, 1990) (Miller, J.): 182 W.Va. 745, 391 S.E.2d 895:

In an attorney malpractice action arising from the failure to uncover a prior conveyance of the mineral estate in a title examination allegedly due to improper indexing by the county clerk, the Court held that an attorney who fails to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession in similar circumstances is liable for damages to his or her client that are the direct and proximate result of such negligence. Moreover, the Court held that the client bears the burden of proving both his or her loss and its causal connection to the attorney's negligence. The Court further held that where a client has been injured by a negligent title certification or examination, the exact nature of damages depends upon the nature of the property, the character of the negligence, and other appropriate factors. Finally, the Court held that damages for the negligent failure to uncover an outconveyance are ordinarily the difference between the value of the property actually received and the purchase price. Because the evidence was conflicting regarding whether the property in question was worth less than the purchase price, even without the mineral estate, the Court affirmed the jury's verdict awarding no damages.

Ronald K. Smith and Sharon D. Smith, Elaine Mauck and Jesse Mauck, Jr., and Willis and Karen Smallwood v. Donald L. Bayer, Fred L. Blair, Robert S. Butler, Bill Cauffman, Bruce Dehaven, G. Ronald Dunham, Fred D. Gantt, Paul Gregory, Hugh B. Newbraugh, Michael W. Orr, Paul E. Payne, Jr., and Donald Sperow, as members of an unincorporated association known as the Berkeley County Planning Commission, No. 18684 (W. Va. December 21, 1989) (Workman, J.): 182 W.Va. 495, 388 S.E.2d 851:

Where landowners appealed the refusal of a circuit court to grant a writ of mandamus to compel a county planning commission to rescind a permit for the operation of a salvage yard, the Court held that, despite statutory authority for certiorari review of the decision to grant the permit, because the planning commission failed to follow the notice provisions of the applicable ordinance and the period for application for certiorari had expired, mandamus was an appropriate remedy.

Grover Russell and Etta Russell v. Island Creek Coal Company and Kenneth Faerber, Commissioner of the West Virginia Department of Energy, No. 19104 (W. Va. December 20, 1989) (McHugh, J.): 182 W.Va. 506, 389 S.E.2d 194:

The Court affirmed an award of summary judgment to a coal company based upon the surface owners' waiver of liability for damages to groundwater in the severance deed, holding that although W. Va. Code § 22A-3-24(b) requires a coal operator to replace the water supply of a surface owner whose water supply is affected by contamination, diminution or interruption proximately caused by surface mining, such statutory right of the surface owner may be waived.

William M. Wilson and O. Glenn Lockhart v. R. Dennis Xander; Alamco, Inc., a Delaware corporation; Anthony Joseph LaCotti, Jr.; Lisa LaCotti; Willie Eugene Coffey and Gertraud Coffey; and NRM Petroleum Corp. (Natural Resources Management Corp.), No. 18954 (W. Va. December 14, 1989) (Neely, J.): 182 W.Va. 342, 387 S.E.2d 809:

Where lessees alleged that efforts to commence mineral production were wrongfully impeded by lessors' failure to convey clear title, the Court held that although lease termination upon nonproduction will ordinarily be upheld, where (1) the lessor hinders production, precipitating defeasance of the lessee's estate, and (2) the lessee has used due diligence, which is a question of fact, toward such production, the doctrine of equitable estoppel will operate to extend such lease for a reasonable time to allow the lessee to commence production.

Angus E. Peyton and James F.B. Peyton v. City Council of the City of Lewisburg; Joseph C. Turley, Michael McClung, William Goodwin, Paul Cooley and Thomas Campbell, Members of the City Council of Lewisburg, No. 19203 (W. Va. November 30, 1989) (Miller, J.): 182 W.Va. 297, 387 S.E.2d 532:

Where landowners requested city to annex property in effort to block construction of a shopping mall, the Court held that the "one-hundred-inhabitant" requirement in W. Va. Code § 8-2-1 is mandatory for annexation of territory of less than one square mile under W. Va. Code § 8-6-4.

Kingmill Valley Public Service District v. Riverview Estates Mobile Home Park, Inc., etc., and R.E.S., Inc., No. 19018 (W. Va. October 27, 1989) (Miller, J.): 182 W.Va. 116, 386 S.E.2d 483:

In an appeal of an action by the owner of a private sewage treatment facility who was compelled to connect to a public service district system, the Court held (1) private property is held subject to the proper exercise of the police power for the common good, and any diminution of property value associated with an exercise of such power is not recoverable, and (2) where a PSD, pursuant to W. Va. Code § 16-13A-9, requires connection onto its sewer system and abandonment of a private sewer system, there can be no recovery on the ground that such action constitutes a taking of private property without just compensation.

Eagle Gas Co. v. Doran & Associates, Inc., No. 18744 (W. Va. October 19, 1989) (Neely, J.): 182 W.Va. 194, 387 S.E.2d 99:

In a case involving the validity of an oil and gas lease, the Court held that when there is a reason to believe that an interest in real property has been previously conveyed in an instrument not of record, a prospective purchaser must use reasonable diligence to ascertain the existence of such earlier conveyance. Where a party held an undivided one-half interest in oil and gas, the Court held that it could not trespass against the other tenant-in-common, but was obligated to account for revenues and expenses related to wells drilled prior to commencement of the action challenging the validity of the driller's lease.