Miller v. Lambert
Annotate this Case
September 1995 term
__________
No. 22727
__________
C. DONALD MILLER AND NANCY M. MILLER,
Plaintiffs Below, Appellees
v.
JUDITH L. LAMBERT,
EXECUTRIX OF THE ESTATE OF
DONALD L. LAMBERT,
Defendants Below, Appellants
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable John Hey, Circuit Judge
Civil Action No. 90-C-928
AFFIRMED
_________________________________________________
Submitted: September 20, 1995
Filed: December 14, 1995
Stephen L. Thompson
Leslie Kiser
Barth, Thompson & George
Charleston, West Virginia
Attorneys for the Appellees
William E. Hamb
Robert W. Kiefer, Jr.
Charleston, West Virginia
Attorneys for the Appellants
The Opinion of the Court was delivered PER CURIAM.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE ALBRIGHT did not participate.
SYLLABUS BY THE COURT
1. "Where a cause of action is based on tort or on a claim of fraud, the statute of
limitations does not begin to run until the injured person knows, or by the exercise of
reasonable diligence should know, of the nature of his injury, and determining that point in
time is a question of fact to be answered by the jury." Syl. Pt. 3, Stemple v. Dobson, 184 W.
Va. 317, 400 S.E.2d 561 (1990).
2. "Ordinarily an employer of a competent independent contractor to perform work
not unlawful or intrinsically dangerous in character, who exercises no supervision or control
over the work contracted for, is not liable for the negligence of such independent contractor
or his servants in the performance of the work; but if such work is intrinsically dangerous in
character or is likely to cause injury to another person if proper care should not be taken,
such employer can not escape liability for the negligent performance of such work by
delegating it to such independent contractor." Syl. Pt. 5, Law v. Phillips, 136 W. Va. 761,
68 S.E.2d 452 (1952).
3. "The general rule is that where one person has contracted with a competent person
to do work, not in itself unlawful or intrinsically dangerous in character, and who exercises
no supervision or control over the work contracted f or, such person is not liable for the negligence of such independent contractor or his servants in the performance of the work."
Syl. Pt. 1, Chenoweth v. Settle Engineers, Inc., 151 W. Va. 830, 156 S.E.2d 297 (1967).
4. "'"In determining whether there is sufficient evidence to support a jury verdict the
court should: (1) consider the evidence most favorable to the prevailing party; (2) assume
that all conflicts in the evidence were resolved by the jury in favor of the prevailing party;
(3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4)
give to the prevailing party the benefit of all favorable inferences which reasonably may be
drawn from the facts proved." Syl. pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593
(1983), cert. denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed. 2d 319 (1984).' Syl. Pt. 6,
McClung v. Marion County Comm'n, 178 W. Va. 444, 360 S.E.2d 221 (1987)." Syl. Pt. 2,
Tanner v. Rite Aid, ___ W. Va. ___, 461 S.E.2d 149 (1995).
5. "'Courts must not set aside jury verdicts as excessive unless they are monstrous,
enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show
jury passion, partiality, prejudice or corruption.' Syl. Pt., Addair v. Majestic Petroleum Co.,
Inc., 160 W. Va. 105, 232 S.E.2d 821 (1977)." Syl. Pt. 5, Roberts v. Stevens Clinic Hosp.
Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986).
6. "'There is authority in equity to award to the prevailing litigant his or her
reasonable attorneys' fees and "costs" without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.' Syl. Pt.
3, Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 S.E.2d 246 (1986)." Syl. Pt. 5,
Muzelak v. King Chevrolet, Inc., 179 W. Va. 340, 368 S.E.2d 710 (1988).
7. "One who seeks to assert title to a tract of land under the doctrine of adverse
possession must prove each of the following elements for the requisite statutory period: (1)
That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3)
That it has been open and notorious (sometimes stated in the cases as visible and notorious);
(4) That possession has been exclusive; (5) That possession has been continuous; (6) That
possession has been under claim of title or color of title." Syl. Pt. 3, Somon v. Murphy
Fabrication & Erection Co., 160 W. Va. 84, 232 S.E.2d 524 (1977).
8. "'"Where, in the trial of an action at law before a jury, the evidence is conflicting,
it is the province of the jury to resolve the conflict, and its verdict thereon will not be
disturbed unless believed to be plainly wrong." Point 2, Syllabus, French v. Sinkford, 132
W. Va. 66 [54 S.E.2d 38].' Syllabus Point 6, Earl T. Browden, Inc. v. County Court, 145 W.
Va. 696, 116 S.E.2d 867 (1960)." Syl. Pt. 2, Rhodes v. National Homes Corp., 163 W. Va.
669, 263 S.E.2d 84 (1979).
Per Curiam:
This is an appeal by Donald A. LambertSee footnote 1 and Judith L. Lambert (hereinafter "the
Appellants" or "the Lamberts") from a March 28, 1994, order of the Circuit Court of
Kanawha County awarding $40,000 damages and $4,000 attorney fees, pursuant to a jury
verdict, to the Appellees, C. Donald Miller and Nancy M. Miller (hereinafter "the Appellees"
or "the Millers") in an action filed by the Appellees to recover damages for property trespass.
The Appellants contend that the lower court erred by refusing to direct a verdict at the close
of the Appellees' case and by denying the Appellants' motion to set aside the verdict and to
enter judgment notwithstanding the verdict. We affirm the decision of the lower court.
I.
The Millers and the Lamberts own adjacent residential real estate along the Kanawha
River in Charleston, West Virginia. The Lamberts' riverbank property is burdened by a
twenty-foot easement in favor of the West Virginia Water Company, and the water company
maintains a large water distribution line located approximately nine feet inside the Lamberts'
property from the common division line between the Miller property and the Lambert
property. Due to erosion along the riverbank prior to 1982, the Lamberts decided to contract for the placement of fill material, consisting of concrete, stone, and other material, on the
riverbank portion of their property. The Lamberts engaged ABC Construction Company to
restore their riverbank property, and the initial phase of this work, conducted in 1983,
consisted of the placement of large sections of concrete which had been recovered from a
Corps of Engineers' project near Huntington, West Virginia. These large sections of concrete
were then permitted to settle until 1986 when the area was covered with Indiana limestone,
topsoil, and grass. The construction project was supervised by John Scott, Jr., of ABC
Construction and cost the Lamberts approximately $34,000. Attempting to create usable
riverbank land, the Lamberts extended their riverbank approximately thirty feet out into the
river and increased the height of the riverbank by approximately seventeen feet to place the
land above the normal flood level. In order to reach the desired result, Mr. Scott had to
gradually slope the sides of this fill material to meet the adjoining land on each side of the
Lambert property.
While working on the Lamberts' property, Mr. Scott became acquainted with the
Millers and the other riverbank property owners in the neighborhood.See footnote 2 According to the
testimony of Mr. Scott, he and the Millers discussed the possibility that Mr. Scott could
possibly perform similar restoration work on the Millers' property. As the work on the Lambert property progressed, significant amounts of fill material, including broken concrete,
Indiana limestone, and topsoil, were placed on the Millers' property.See footnote 3
In 1986, the Millers undertook restoration of their own riverbank property and
engaged the services of E. L. Porter from the firm of T. G. Kenney & Sons, Inc. As Mr.
Porter prepared to begin such restoration, he observed and informed the Millers that fill
material had already been placed on the Millers' riverbank property such that only eighty feet
of the original one hundred foot width remained.See footnote 4 On December 11, 1986, the Millers hired
Dunn Engineers, Inc. to perform a land survey, to place pins and stakes on the boundary line,
and to prepare a plat of the area in order for them to discuss the problem with the Lamberts.
Dunn Engineers performed the survey and informed the Millers that fill material from both
neighboring properties, the Lamberts and the Ramseys, encroached upon the Millers'
property. The fill material placed on the Millers' property from the Lambert side was
approximately fifteen feet wide, seventeen feet high, and thirty feet long. As a result of the
Lamberts' construction, the eastern fifteen feet of the Millers' property is seventeen feet
higher and extends into the river thirty feet further than their remaining land.
Although new corner pins were set in December 1986, the Millers did not receive a
plat showing the precise extent of the encroachment until early 1989. The Millers testified
that they did not approach the Lamberts prior to their receipt of the plat because they wanted
a completed survey and plat to verify the existence and extent of any encroachment prior to
bringing any action. Some of the grade stakes which were positioned along the boundary by
Dunn Engineers were removed and thrown in the river by Mr. Lambert, according to his own
testimony. On April 19, 1989, the Millers first complained to the Lamberts that their
riverbank restoration had encroached upon the Millers' property, and the Millers demanded
the removal of the fill material and a fence which had been placed on the Millers' property
by the Lamberts in 1984.See footnote 5 The Lamberts responded to the April 1989 request by informing
the Millers that the fence and fill material would remain and that if the Millers desired
removal, they would have to sue the Lamberts.
On March 8, 1990, the Millers filed a civil action against the Lamberts, alleging that
the Lamberts trespassed and encroached upon the Millers' property by the placement of fill material on the riverbank portion of the property during 1983, by constructing a fence on the
Millers' property in 1984, and by placing additional fill material on the property in 1986.
The Millers, through their Complaint, sought monetary damages, an adjudication of the
proper boundary between the properties, and an injunction forcing the removal of the
encroachments. The Lamberts maintained in their answer and statement of affirmative
defenses that they had acquired the land upon which the fence was built by adverse
possession and that the Millers' claims regarding the placement of fill material on the
riverbank were barred by the two-year statute of limitations.
This case was tried before a jury on July 30, 1993, and the jury returned a verdict in
favor of the Millers in the amount of $40,000 compensatory damages for expenses in
restoring the riverbank and $4,000 attorney fees. The jury also established the correct
boundary between the Millers' and Lamberts' properties. The Appellants' motion for
judgment notwithstanding the verdict was denied,See footnote 6 and they now appeal to this Court.
The Appellants allege the following assignments of error: that they cannot be held
liable for the actions of their independent contractor, ABC Construction; that the portion of
the verdict awarding damages to the Millers for riverbank encroachment is not supported by
competent evidence; that the Millers' claim for damage is barred by the statute of limitations;
that equitable considerations require that the Millers not recover for the placement of fill
material on their riverbank; that the award of attorney's fees to the Millers was improper; and
that the Lamberts had acquired the land upon which the fence was placed by adverse
possession.
The Millers assert two cross-assignments of error: (1)the lower court erred by failing
to quiet title consistent with the determination of the jury, and (2) the lower court erred in
granting the Lamberts' motion in limine to exclude evidence that the placement of the fill
material was unlawful and in violation of the requirements of the United States Army Corps
of Engineers due to its extension of the natural riverbank and its nonconformity with the
neighboring property.
II.
We first address the Lamberts' allegation that West Virginia Code § 55-2-12 (1994),
imposing a two-year statute of limitations, bars the claim advanced by the Millers. The
Lamberts allege that the Millers discovered the encroachment in 1986 and failed to file the action within the two-year statute of limitations. The Millers respond by advancing a two-
fold theory; first, they contend that the trespass is of the nature of a continuing trespass and
therefore gives rise to successive causes of action; second, they maintain that even if the
fixed two-year statute of limitations applies, it was within the province of the jury to
determine when, for purposes of the statute of limitations, the Millers "discovered" the
trespass. See Stemple v. Dobson, 184 W. Va. 317, 400 S.E.2d 561 (1990) (discussing
applicability of "discovery rule" concerning accrual of right of action).
We have stated that the continuing tort theory is inapposite where the plaintiff claims
fixed acts by the defendant which do not involve a continuing wrong. Ricottilli v.
Summersville Memorial Hosp., 188 W. Va. 674, 425 S.E.2d 629 (1992). In the present case,
the trespass occurred first in 1983 and subsequently in 1986. Even where a tort involves a
continuing or repeated injury, the cause of action accrues at the date of the last injury.
Handley v. Town of Shinnston, 169 W. Va. 617, 289 S.E.2d 201 (1992). In the present case,
a continuing trespass theory, even if applied, would only extend the accrual of the cause of
action to 1986 and would not excuse the Millers' failure to file this civil action from 1986
to the date of its actual filing on March 8, 1990.
However, the Millers also assert that the determination of the date upon which the
statute begins to run is properly within the province of the jury. The jury heard testimony
regarding the delay between the Millers' first suspicions of trespass and the filing of their civil action. The jury also heard the Millers' evidence indicating that they did not receive the
engineers' plat depicting the trespass until 1989 and the Millers' argument that any valid
cause of action could not have accrued until the Millers had tangible evidence of the trespass
in the form of the engineers' plat.
In syllabus point three of Stemple, we explained the following:
Where a cause of action is based on tort or on a claim of
fraud, the statute of limitations does not begin to run until the
injured person knows, or by the exercise of reasonable diligence
should know, of the nature of his injury, and determining that
point in time is a question of fact to be answered by the jury.
184 W. Va. at 318, 400 S.E.2d at 562; see also Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988); Pauley v. Combustion Eng'g, Inc., 528 F. Supp. 759 (S.D. W. Va. 1981).
In our recent decision in Bullman v. D & R Lumber Co., No. 22729, ___ W. Va. ___, ___
S.E.2d ___ (W. Va. filed October 27, 1995), we explained the following with regard to a
statute of limitations claim raised in that matter:
The statute of limitations issue was properly before the jury,
sufficient evidence was presented, and the jury, after weighing the
evidence, found the plaintiff did not learn the defendant entered upon
and cut timber from her property until she received the report from the
surveyor. This Court accords deference to the jury's finding, and in the
absence of evidence to show the jury was clearly wrong, we decline to
reverse its decision.
___ W. Va. at ___, ___ S.E.2d at ___ (slip op. at 3 n.2).
In the present case, however, the statute of limitations defense was insufficiently
presented by the Lamberts. Although the Lamberts did include a statute of limitations
defense within their answer, they never attempted to raise the issue again prior to trial. They
never proposed a jury instruction on the statute of limitations. In fact, according to the
record before us, they did nothing to effectively raise the issue again until this appeal. Great
emphasis was place upon the alleged estoppel and laches defenses, but the precise issue of
the statute of limitations was never crystallized below. Having failed to make an adequate
record below, the Lamberts cannot now remedy that deficiency.
III.
The Lamberts also assert that they cannot be held liable for the actions of their
independent contractor in placing the fill material on the Millers' property.See footnote 7 This Court
enunciated the general rule for immunity from liability for negligent acts of an independent
contractor in Law v. Phillips, 136 W. Va. 761, 68 S.E.2d 452 (1952). We explained that the
employer will not be liable for the negligence of his independent contractor where the work
is "not in itself unlawful or of such a nature that it is likely to become a nuisance or to
subject third persons to unusual damage . . . ." 136 W. Va. at 771, 68 S.E.2d at 458.
In the present case, the Millers attempted to introduce evidence that the work which
was requested by the Lamberts was in itself unlawful, thereby eliminating the immunity
typically granted to an employer of an independent contractor. The lower court, however,
would not permit the introduction of such evidence, reasoning that such matters constituted
a separate dispute not involving the Millers and were therefore irrelevant. The Millers have
appealed that ruling as a cross-assignment of error in this case. The evidence would have
demonstrated that the work was in violation of the requirements of the United States Army
Corps of Engineers due to the extension of the natural riverbank and its nonconformity with
the neighboring property. The evidence would also have indicated a violation of the Clean
Water Act, as administered by the West Virginia Department of Natural Resources.
Although the Lamberts obtained permits to conduct their work, the evidence sought to be
introduced would have shown that the permits were violated by the placement of excessive
fill material on the riverbank and by the extension of the fill material too far into the
Kanawha River.
In reversing a lower court's ruling on the relevancy issue, abuse of discretion must be
shown. State v. Bass, 189 W. Va. 416, 432 S.E.2d 86 (1993); accord State v. Farmer, 185
W. Va. 232, 406 S.E.2d 458 (1991). We find that the lower court abused its discretion in
excluding evidence which was specifically relevant to two issues: (1) the nature of the
relationship between the Lamberts and their independent contractor; and (2) damage to the
Millers in the form of the establishment of a potential dispute between the Millers and the Army Corps of Engineers and/or the Department of Natural Resources based upon illegal
encroachment of fill material from their property into the river. Once that evidence of
illegality of the Lamberts' construction is considered, the argument that the Lamberts are not
entitled to immunity from liability for the negligence of their independent contractor is
tenable, based upon our holding in Law. See 136 W. Va. at 771, 68 S.E.2d at 458.
In addition to their argument that the work was in itself unlawful, the Millers also
assert that the Lamberts retained sufficient control of the project to subject them to liability
for the acts of their independent contractor. In syllabus point five of Law, we explained:
Ordinarily an employer of a competent independent
contractor to perform work not unlawful or intrinsically
dangerous in character, who exercises no supervision or control
over the work contracted for, is not liable for the negligence of
such independent contractor or his servants in the performance
of the work; but if such work is intrinsically dangerous in
character or is likely to cause injury to another person if proper
care should not be taken, such employer can not escape liability
for the negligent performance of such work by delegating it to
such independent contractor.
136 W. Va. at 762, 68 S.E.2d at 454. We have also explained as follows:
The general rule is that where one person has contracted
with a competent person to do work, not in itself unlawful or
intrinsically dangerous in character, and who exercises no
supervision or control over the work contracted for, such person
is not liable for the negligence of such independent contractor
or his servants in the performance of the work.
Syl. Pt. 1, Chenoweth v. Settle Engineers, Inc., 151 W. Va. 830, 156 S.E.2d 297 (1967). The
jury was in the instant case properly instructed on this issue, as follows:
The Court instructs the jury that to maintain the present
action against the defendants for the property alleged to have
been damaged as a result of the defendants' trespass upon the
property of the plaintiffs, Don and Nancy Miller, the plaintiffs
must show that the defendant actually participated in the
trespass either by having been personally present, concurring
and aiding in the same, or by having previously encouraged,
advised, instigated or requested the trespass, or that the alleged
trespasses were committed for the benefit of the defendants, or
that they assented to and acquiesced in the same after the
commission thereof. Ordinarily, and as a general rule, he who
goes in aid of those who commit a trespass, though he takes no
further part in it, or who cooperates therein, or aids, encourages,
countenances, commands or advises the same, if done for his
benefit, or who subsequently recognizes, approves, and adopts
the trespass with its purpose, results and benefits, is liable for
the injury done by others in the trespass; but the question of
cooperating and participating in the trespass, and all matters of
fact, and the consequent liability is a question for the jury, who
must ascertain and determine the facts and apply the law under
the instructions of the Court.
We find that the jury was presented with evidence of the Lamberts' position regarding the
immunity from liability for actions of an independent contractor, and we conclude that the
evidence supports the conclusion reached by the jury on this issue.
IV.
The Lamberts also contend that the damages awarded by the jury were not supported
by the evidence. The testimony of the Lamberts' independent contractor, Mr. Scott, indicated
that he had been involved in riverbank restoration for thirty-two years. Moreover, he was
familiar with the specific property in question due to the extensive work he performed on the
property. He estimated the cost of removal of the fill material at approximately $25,000 to
$30,000. The Lamberts failed to object to the introduction of this testimony at trial, yet they
now allege that it constitutes an unsubstantiated rough estimate which cannot form a basis
for the jury's award of damages.
In reviewing the test for assessing the sufficiency of evidence to support a jury
verdict, we stated the following in syllabus point two of Tanner v. Rite Aid, ___ W. Va. ___,
461 S.E.2d 149 (1995):
"'In determining whether there is sufficient evidence to
support a jury verdict the court should: (1) consider the evidence
most favorable to the prevailing party; (2) assume that all
conflicts in the evidence were resolved by the jury in favor of
the prevailing party; (3) assume as proved all facts which the
prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved.' Syl. pt. 5, Orr
v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert.
denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed. 2d 319 (1984)."
Syl. Pt. 6, McClung v. Marion County Comm'n, 178 W. Va.
444, 360 S.E.2d 221 (1987).
We have also explained that "'[c]ourts must not set aside jury verdicts as excessive unless
they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous,
and manifestly show jury passion, partiality, prejudice or corruption.' Syl. Pt., Addair v.
Majestic Petroleum Co., Inc., 160 W. Va. 105, 232 S.E.2d 821 (1977)." Syl. pt. 5, Roberts
v. Stevens Clinic Hosp. Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986); accord Syl. Pt. 5
Tanner, ___ W. Va. at ___, 461 S.E.2d at 151; Capper v. Gates, 193 W. Va. 9, 454 S.E.2d 54 (1994).
Given the fact that Mr. Scott was intimately familiar with the property in question and
the extensive nature of the restoration work performed, we do not conclude that his
testimony regarding cost of restoration was unfounded or speculative, and we find that the
evidence regarding such restoration was sufficient to support the jury verdict.
V.
The Lamberts also asserts that the Millers should not have been awarded attorney
fees. As we have previously recognized, "'[t]here is authority in equity to award to the
prevailing litigant his or her reasonable attorneys' fees and "costs" without express statutory
authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for
oppressive reasons.' Syl. Pt. 3, Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 S.E.2d 246 (1986)." Syl. Pt. 5, Muzelak v. King Chevrolet, Inc., 179 W. Va. 340, 368 S.E.2d 710 (1988). The Millers introduced evidence that the Lamberts were aware of the encroachment
and that Mr. Lambert personally removed boundary markers and threw them in the river.
The jury was properly instructed that they could not award attorney fees to the Millers
"unless you first find by clear and convincing evidence that in defending this action the
Lamberts acted in bad faith, vexatiously, wantonly, or for oppressive reasons." We find no
justification for disturbing the jury verdict on this issue.
VI.
The Millers also asserted at trial that a picket fence recently constructed by the
Lamberts encroached upon their property. This fence had been constructed to replace a
fence which had existed near the boundary line since approximately 1948. The Lamberts
responded with the contention that even if some portion of the fence did encroach upon
property originally owned by the Lamberts, that portion had been acquired by the Lamberts
through adverse possession based upon the length of time the old fence had existed in that
location.
In syllabus point three of Somon v. Murphy Fabrication and Erection Company, 160
W. Va. 84, 232 S.E.2d 524 (1977), we explained the elements of adverse possession, as
follows:
One who seeks to assert title to a tract of land under the
doctrine of adverse possession must prove each of the following
elements for the requisite statutory period: (1) That he has held
the tract adversely or hostilely; (2) That the possession has been
actual; (3) That it has been open and notorious (sometimes
stated in the cases as visible and notorious); (4) That possession
has been exclusive; (5) That possession has been continuous; (6)
That possession has been under claim of title or color of title.
160 W. Va. at 85, 232 S.E.2d at 525-26.
Extensive evidence was presented at trial regarding the exact position of the old fence
and whether the new fence had been constructed along precisely the same line as the old
fence. Conflicting evidence was presented on the issue of whether the original fence and the
new fence, constructed in 1984 (five years before the institution of this action), were in the
same location. From the evidence presented, the jury could properly conclude that the new
fence was constructed along a line closer to the Miller property, thereby creating an area
which had not previously been encompassed within the property considered to be owned and
maintained by the Lamberts and which would therefore not meet the statutory requirement
of ten years of continuous, actual possession.
The jury was provided with thirteen separate instructions, pursuant to our
pronouncements in Somon, concerning the precise elements of adverse possession and the
role of the boundary fence in the determination of the adverse possession issue. Neither
party alleges instructional error; the Lamberts are simply dissatisfied with the jury's conclusion based on that substantial instructional information.See footnote 8 "'"Where, in the trial of an
action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve
the conflict, and its verdict thereon will not be disturbed unless believed to be plainly
wrong." Point 2, Syllabus, French v. Sinkford, 132 W. Va. 66, [54 S.E.2d 38].' Syllabus
Point 6, Earl T. Browden, Inc. v. County Court, 145 W. Va. 696, 116 S.E.2d 867 (1960)."
Syl. Pt. 2, Rhodes v. Nat'l Homes Corp., 163 W. Va. 669, 263 S.E.2d 84 (1979); see also
Dustin v. Miller, 180 W. Va. 186, 375 S.E.2d 818 (1988).
Based upon our review of the record, as well as the briefs and arguments of counsel,
we affirm the decision of the lower court. We also direct the lower court, consistent with
the Millers' counter-assignment of error, to quiet title to the disputed property in the Millers
in accordance with the boundary determinations made by the jury.
Affirmed.
Footnote: 1 Donald A. Lambert died on April 8, 1995, and Judith L. Lambert, as executrix of the estate of Donald A. Lambert, was substituted as a party Appellant.Footnote: 2 Mr. Scott also discussed riverbank restoration with property owners adjoining the Millers' property on the western side of the Miller property. The Lamberts' property is located on the eastern side of the Millers' property.Footnote: 3 Mr. Scott maintained at trial that the material was placed upon the Millers' property with the knowledge and consent of the Millers in anticipation of the performance of similar work on their property. The Millers testified at trial that they did not give their permission for the placement of such material and had no knowledge of its placement.Footnote: 4 The Millers' property originally encompassed approximately 100 feet of shoreline along the Kanawha River. Subsequent to the placement of fill material upon their property, only approximately 80 feet remained unencumbered.Footnote: 5 The fence is alleged to have encroached upon the Millers' property by as much as one foot. It was constructed in 1984 to replace a fence which had been in place since 1948. The Lamberts testified that the new fence was constructed slightly to the east, toward the Lamberts' property, from the location of the old fence and that if any portion of the fence encroached upon the Millers' property, that narrow strip of property had already been acquired by the Lamberts through adverse possession due to the existence of the old fence since 1948. Mr. Ramsey, the Millers' westerly neighbor, however, testified that he was present when the new fence was being constructed and that it was placed approximately one foot to the west, toward the Millers' property, from the location of the old fence.Footnote: 6 The Lamberts' motion for judgment notwithstanding the verdict did not specifically mention the statute of limitations issue and dealt with the timeliness of the Millers' claim only by stating that the lower court "erred in refusing to find as a matter of law that the plaintiffs were guilty of laches barring their recovery . . . ." and by stating that the lower court "erred in refusing to find as a matter of law that the plaintiffs were estopped from asserting their claims against the defendants herein." From our review of the record, it appears that the only pre-trial assertion of the issue of the statute of limitations occurred in the Lamberts' answer. Footnote: 7 Neither ABC Construction nor any of its employees were included as a party in this civil action.Footnote: 8 The Millers also emphasize that the Lamberts failed to move for a directed verdict on the issue of their possession claim and that such issue should not therefore be considered on appeal. See W. Va. R. Civ. P. 50(b); Steptoe v. Mason, 153 W. Va. 783, 172 S.E.2d 587 (1970).
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