Tice v. Veach

904 S.E.2d 484

Phillip D. TICE, Defendant Below, Petitioner,

v.John S. VEACH, Plaintiff Below, Respondent.

No. 23-ICA-217

West Virginia Intermediate Court of Appeals.

Submitted: May 21, 2024

Filed: June 25, 2024

Appeal from the Circuit Court of Randolph County, Honorable David H. Wilmoth, Judge, Civil Action No. CC-42-2017-C-125

Braun Hamstead, Esq., Hamstead & Associates, L.C., Charles Town, West Virginia, Counsel for Petitioner

Harry A. Smith, III, Esq., Jory & Smith, L.C., Elkins, West Virginia, Counsel for Respondent

SCARR, CHIEF JUDGE:

Petitioner Phillip D. Tice appeals two orders, the Final Order Establishing Location of Granted Easement which was entered by the Circuit Court of Randolph County on October 18, 2022, and the April 28, 2023, Final Order Following Hearing of February 13, 2023, which denied Mr. Tice’s motion to alter or amend the circuit court’s earlier order pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure.

The orders on appeal stem from further proceedings held by the circuit court in response to the mandate issued by the Supreme Court of Appeals of West Virginia in Tice v. Veach, No. 19-1117, 2021 WL 816141 (W. Va. March 3, 2021) (memorandum decision) ("Veach I"), which affirmed the jury’s finding of an express, deeded right-of-way, reversed the jury’s finding of a prescriptive easement, and remanded the matter for entry of an order consistent with its decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

In April 1960, Owen Lutz, grantor to Mr. Veach, and Eunice McLaughlin, predecessor-in-title to Mr. Tice, entered into a Right of Way Agreement which restated and defined a right-of-way reserved in an earlier deed. Veach I, at *2. Under this agreement, Mr. Veach holds an express, deeded right-of-way across what is now Mr. Tice’s land. Id. at *1. There is no dispute concerning the existence of this right-of-way, but the parties have disagreed as to its location.

When Mr. Veach purchased his parcel in 1990, his grantor, Mr. Lutz, walked and drove with him across the right-of-way. Id. at *3. According to Mr. Veach, there was a gravel driveway that provided access from Secondary Route 24. Id. The driveway went uphill to a small, flat, graveled space, then straight through a gate. Id. After passing through the gate, the right-of-way made a left turn, then a right turn, then went straight to a gate at what is now Mr. Veach’s property. Id.

The parties to the 1960 agreement did not have the right-of-way surveyed at the time of their agreement, Id. at *1, but Mr. Veach subsequently had a survey done by Donald L. Teter ("Surveyor Teter") resulting in a 1992 Plat of Survey ("1992 Plat."). Id. at *4. "For approximately twenty-six years, Mr. Veach and his employee crossed Mr. Tice’s property along what they thought was the right-of-way—a route that cuts through Mr. Tice’s hayfield and close to a combined garage/apartment constructed around 2000." Id. at *1. However, in approximately 2016, Mr. Tice disputed the location of this route, telling one of Mr. Veach’s employees that he was not using the designated right-of-way. See Id. at *4.

Mr. Veach filed suit against Mr. Tice in October of 2017, seeking a declaration that he held a right-of-way pursuant to express and prescriptive easements over Mr. Tice’s property in the location depicted on the 1992 Plat. Mr. Tice did not deny the existence of a deeded right-of-way, but he did contest where it was located. In addition, he challenged Mr. Veach’s allegation that there was a prescriptive easement in the same location.

A jury heard the matter in July of 2019 and returned two verdicts. First, it found that Mr. Veach had established a deeded right-of-way as represented on the 1992 Plat, and that it was fourteen-feet wide.¹ The Jury also found that Mr. Veach had proven a prescriptive easement by clear and convincing evidence. The circuit court entered its original Judgment Order on August 30, 2019, reflecting the jury’s verdicts. Consistent with the jury’s verdict form, the Order stated:

1. That Plaintiff, John S. Veach, has an express, deeded, right-of-way across a tract of real estate owned by Defendant, Phillip D. Tice, said real estate being a 17-acre tract situate in Beverly District, Randolph County, West Virginia, conveyed to Defendant by Denzil R. Rice [sic.] and Margaret R. Tice, by deed dated February 7, 1994, of record in the Office of the Clerk of the County Commission of Randolph County, West Virginia, in deed Book 431 at page 57.

2. That said express, deeded, right-of-way has a width of 14 feet, the centerline of which is as surveyed and platted by Donald L. Teter, licensed land surveyor, and as described as "R/W" (being approximately 1,032.4 feet in length) on a plat of survey, entitled Plat of Survey for John S. Veach, admitted as evidence (Exhibit M) in the trial herein; a copy of said plat of survey, reduced in size, is attached hereto and incorporated herein as part of this Judgment Order.

3. That Plaintiff, John S. Veach, has a prescriptive easement across said 17-acre tract of real estate owned by Defendant, Philip [sic] D. Tice, the centerline of said prescriptive easement being as surveyed and platted by Donald L. Teter and as specifically described in the preceding paragraph of this Judgment Order.

Veach I, at *5

Also included in this Order was the following paragraph:

That if this Judgment Order is not appealed, or if it is affirmed on appeal, the Court will conduct further proceedings, as initiated by either of the parties, as may be necessary, including: (1) designation of a permanent location of the right-of-way on the ground, and (2) such documentation as may be required to index the verdict herein in the land records of Randolph County, West Virginia, so as to provide proper and effective notice in the parties’ chain of title.

Mr. Tice filed a post-trial motion to set aside the verdicts. The motion was denied by the circuit court and Mr. Tice appealed. In Veach I, the Supreme Court of Appeals of West Virginia affirmed the jury’s finding of an express, deeded right-of-way as located on the 1992 Plat, noting that "[a]t trial, the jury found that the right-of-way was located as Mr. Veach claimed: through Mr. Tice’s hayfield and near his garage." Veach I, at *1. It reversed that part of the judgment finding a prescriptive easement with the same location and width as the deeded easement because Mr. Veach’s passage across Mr. Tice’s property could not be adverse to Mr. Tice’s interest if it followed a deeded right-of-way. A portion of the 1992 Plat showing the right-of-way was incorporated in the court’s opinion. See Figure 1.

Figure 1

904 S.E.2d 489.bmp

On remand, the circuit court entered an amended judgment order on July 6, 2021, vacating the jury’s verdict regarding the prescriptive easement. In that order, the circuit court observed that "the Supreme Court found no fault with the substance of this Court’s Judgment Order insofar as it was determined that Plaintiff John Veach is vested with a granted easement over the lands of Defendant Philip Tice and that said granted easement is bounded and described on a plat rendered by surveyor Donald Teter adopted in the Memorandum Decision as ‘Figure 1.’ "

Also on July 6, 2021, the circuit court entered its Procedural Order for Establishing Location of Granted Easement. This Procedural Order noted that the court had provided for these subsequent proceedings in its original Judgment Order, and that the parties had agreed on the procedure for permanently designating the right-of-way. According to this agreement, Donald L. Teter, the surveyor who had prepared the 1992 Plat, was to mark the center line of the entire granted right-of-way based upon the 1992 Plat admitted at trial, the relevant portion of which was made part of the opinion in Veach I. Surveyor Teter would place temporary stakes on the center line at such distances as might be reasonably necessary to identify the right-of-way, including all points set forth on the 1992 Plat, and permanent markers would be placed to mark the right-of-way once any disputes concerning the location of the center line were resolved.

Under the parties’ agreement, Mr. Tice and/or a surveyor of his choosing could be present when Surveyor Teter performed his survey work. According to the Procedural Order, "[i]t [wa]s understood by the parties that these procedures [we]re designed to ensure that there [would] be no dispute regarding the outcome of the survey work." However, under the parties’ agreement, Mr. Tice had the right to file written objections to dispute the results of Surveyor Teter’s survey.

Surveyor Teter completed a Plat of Survey on September 19, 2021 ("2021 Plat"). See Figure 2.

Figure 2

904 S.E.2d 490.bmp

On November 8, 2021, Mr. Tice filed his written objection to Surveyor Teter’s findings. On December 7, 2021, Mr. Tice filed a supplement to that objection, and on February 28, 2022, he filed a second supplemental objection.

[1] In his second supplemental objection, Mr. Tice argued that according to Dale Bennett ("Surveyor Bennett"), who had been retained by Mr. Tice, Surveyor Teter’s depiction of the right-of-way incorporated in the Veach I opinion was inadequate for identifying the deeded right-of-way and did not comport with surveying standards; the 2021 Plat materially deviated from the 1992 Plat that Surveyor Teter was required to use to mark the property; Surveyor Teter’s 1992 and 2021 Plats were not "proper" surveys because they were solely based on evidence of alleged usage relevant to a prescriptive, rather than a granted, easement (" ‘tire tracks’ in Mr. Tice’s field" and "light colored areas depicted in historic photos"),² and the 1960 grant was inconsistent with Surveyor Teter’s surveys.

According to Mr. Tice, the 2021 Plat conflicted with the express language of the deeded right-of-way found in Deed Book 219 at page 515, dated April 25, 1960, which stated that:

[T]he private road right of way leading from State Secondary

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