Margaret Preston Kulkarni, Joseph Raine Preston, and Silas Mason Preston, Jr. v. The County Commission of Greenbrier County, West Virginia

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
MARGARET PRESTON KULKARNI, March 25, 2024
JOSEPH RAINE PRESTON, AND C. CASEY FORBES, CLERK
SILAS MASON PRESTON, JR., INTERMEDIATE COURT OF APPEALS
Respondents Below, Petitioners OF WEST VIRGINIA

v.) No. 23-ICA-90 (Cir. Ct. Greenbrier Cnty. No. CC-13-2021-C-102)

THE COUNTY COMMISSION
OF GREENBRIER COUNTY,
WEST VIRGINIA,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioners Margaret Preston Kulkarni, Joseph Raine Preston, and Silas Mason
Preston, Jr., (“Prestons”), appeal the Circuit Court of Greenbrier County’s February 8,
2023, order that concluded that the Prestons held no right, title, or interest in the subject
property that Respondent the County Commission of Greenbrier County (“Commission”)
was seeking to acquire via eminent domain. The Commission filed a response in support
of the circuit court’s order.1 The Prestons filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

This case concerns an approximately ten-foot-wide strip of land (the “subject
property”) that is located in Lewisburg, West Virginia, that the Commission is seeking to
obtain via eminent domain. The Prestons are the successors in title to Joseph R. Preston,
who owned land adjacent to the subject property.

The Commission asserts that in preparing to file the underlying eminent domain
petition, it was unable to ascertain who owned the subject property. The only reference the
Commission could find was by a deed dated December 23, 1982, wherein Joseph R.

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The Prestons are self-represented. The Commission is represented by Britt B.
Ludwig, Esq.

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Preston conveyed to the Commission certain real estate and reserved to himself a right of
access to the subject property from his adjacent real estate. In that conveyance, the
Commission agreed “to erect and maintain an eight (8) foot chain link fence along the
northern and western boundaries of the property herein conveyed and along the boundary
of the remaining real estate of the party of the first part that borders the 10-foot-wide alley.”
Joseph R. Preston further reserved unto himself “the right and option to install a gate in the
fence as aforesaid along the said 10-foot-wide alleyway.”

As a result of this conveyance, the Prestons were named as defendants in the
underlying action. The Prestons allege that they own the subject property as well as other
land to the south of the subject property. The Prestons base their allegation on the origin of
their chain of title: an 1804 deed describing the conveyed real estate as being ten feet from
the original Lots 5 and 6 laid out for the town of Lewisburg. The Prestons theorize that
because the 1804 description describes their southerly property line as beginning 10 feet
from the original Lots 5 and 6, that the courses and bounds description of the original Lots
5 and 6 remain determinant of their property line today.

However, since the 1804 deed, each of the Prestons has executed as a grantor at
least one deed that references the subject property as an alley and as a boundary to the real
estate conveyed. Likewise, each of the Prestons has accepted as a grantee at least one deed
conveying to him or her land immediately adjacent to the subject property, and in each of
those deeds the subject property is mentioned as an alley and a boundary. Further, in deeds
partitioning land amongst the Prestons as well as a conveyance from Joseph Raine Preston
to the Commission, the Prestons executed deeds incorporating descriptions of their
property as surveyed in 1982 by Harvey Neel. The survey by Harvey Neel excludes the
subject property from Prestons’ land and references the subject property as an alleyway
and a boundary.

An evidentiary hearing was held by the circuit court on November 30, 2022, to
determine whether the Prestons owned any interest in the subject property. At the hearing,
the Prestons were represented by counsel. The Prestons called Margaret Preston Kulkarni,
who attempted to testify about a 2005 survey of the area performed by Charles Smith. The
Commission objected on the basis that Ms. Kulkarni could not lay a proper foundation for
the survey since she did not prepare it. Ms. Kulkarni was excused, and the Prestons then
called David Brown, the surveyor hired by the Commission to survey the subject property.
Mr. Brown testified that the 2005 survey was not sealed, signed, or of record and he had
no knowledge of how the location of certain lots were determined. Mr. Brown further
testified he conducted a field survey of the entire block and all documentation that he
located agreed with the 1982 and 2005 surveys of the area, as well as a 1937 Department
of Highways road improvement plan for the area, in regard to the existence and location of
the subject property.

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The Prestons then attempted to move for the admission of the 2005 survey. The
circuit court held that since Mr. Brown relied on some parts of the survey to form his expert
opinion but did not testify as to the accuracy of any of the lines identifying the lots of the
plat, the court would accept the 2005 survey to the extent that it was referenced by Mr.
Brown but not as to the accuracy of any of the lines to which there was not competent
testimony. The Prestons then recalled Ms. Kulkarni who testified that the subject property
was used as a driveway by the Prestons to reach their garden in the area that is now the
Greenbrier County Courthouse parking lot. She further testified that the subject property
was never conveyed to a public entity though the Prestons did give people permission to
use it.

On February 8, 2023, the circuit court entered the order now on appeal. In that order,
relevant to the issues on appeal, the circuit court noted that the Harvey Neel survey
identifies the subject property as an “alley.” The circuit court reasoned that use of the term
“alley” supported the inference that the subject property was not owned by the Prestons
but rather was the same ten-foot strip of land separating Lots 5 and 6 of the original plat of
the Town of Lewisburg. The circuit court concluded that the Prestons presented no
evidence that the property they inherited was at any time defined by a direct reference to
its distance from any ascertainable monument at or near Randolph Street and there was
likewise no evidence presented by the Prestons of any other reference to a fixed monument
that supported their claim of ownership of the subject property. The circuit court further
concluded that there was no evidence presented as to any distances called for as to the
boundaries of the lots of the original plat of the Town of Lewisburg or the 2005 Charles
Smith survey. The circuit court evaluated the Prestons’ chain of title as well as the various
subsequent transactions between them and the circumstantial evidence before concluding
that, based on a preponderance of the evidence, the Prestons did not own the subject
property, but the Commission failed to prove that the subject property was privately owned
land subject to eminent domain. The circuit court noted that while there may be ongoing
issues between the Prestons and the Commission, the Prestons had not asserted any formal
counterclaim against the Commission and therefore the Prestons were dismissed from the
case.

On appeal, we apply the following standard of review: “The final order and the
ultimate disposition are reviewed under an abuse of discretion standard, and the circuit
court’s underlying factual findings are reviewed under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syl. Pt. 1, Public Citizen, Inc. v. First
Nat'l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538 (1996). The Supreme Court of
Appeals of West Virginia has also made clear that,

[t]he deference accorded to a circuit court sitting as factfinder may evaporate
if upon review of its findings the appellate court determines that: (1) a
relevant factor that should have been given significant weight is not
considered; (2) all proper factors, and no improper factors, are considered,

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but the circuit court in weighing those factors commits an error of judgment;
or (3) the circuit court failed to exercise any discretion at all in issuing its
decision.

Syl. Pt. 1, Brown v. Gobble, 196 W. Va. 559, 474 S.E.2d 489 (1996).

On appeal, the Prestons first assert that the circuit court erred by assuming the role
of factfinder when neither party waived their right to a jury trial. Pursuant to West Virginia
Code § 54-2-10 (1967), in eminent domain proceedings, a jury trial is only afforded on the
issues of compensation and damages for a taking. Further, West Virginia Code § 54-2-18
(1981) specifies that it is for the court to determine controversies over ownership of the
property. Accordingly, the circuit court did not err by assuming the role of factfinder to
determine whether the Prestons owned an interest in the subject property.

Next, the Prestons assert that the circuit court erred by interpreting the use of the
word “alley” to mean the subject property was not the private property of the Prestons.
Essentially, the Prestons take issue with the circuit court’s reliance on the Webster’s
Dictionary definition of the word “alley” to conclude that use of the term in the context of
the documents in question indicated that the subject property was not privately owned by
the Prestons. However, the Prestons cite no authority to support their proposition that it is
reversible error for the circuit court to consider the dictionary definition of a term when
evaluating the evidence before it. Accordingly, under the facts of this case, we cannot say
that the circuit court abused its discretion in considering the dictionary definition of the
term “alley.”

The Prestons further assert that the circuit court erred by elevating recent
monuments over the use of historical courses and distances that existed at the time of the
1804 Deed. “‘It is a general rule that, in locating boundaries of land, resort is to be had
first to natural landmarks, next to artificial monuments, then to adjacent boundaries, and
last to courses and distances.’ Syl. Pt. 1, Matheny v. Allen, 63 W. Va. 443, [60 S.E. 407]
(1908).” Syl. Pt. 7, Blain v. Woods, 145 W. Va. 297, 115 S.E.2d 88 (1960). The Prestons
cite no case law to support their proposition that historical courses and distances should
trump the use of monuments to ascertain the boundaries of land. Accordingly, there is no
merit to this assignment of error.

Next, the Prestons assert that the circuit court erred by limiting the extent it
considered the 2005 survey by Charles Smith because various exceptions to the rule against
hearsay apply to the document. However, the Prestons never argued to the circuit court that
any such exceptions apply. “Generally, the failure to object constitutes a waiver of the right
to raise the matter on appeal.” State v. Asbury, 187 W. Va. 87, 91, 415 S.E.2d 891, 895
(1992). Indeed, a review of the transcript of the evidentiary hearing reveals that the
Prestons’ counsel did not object to the circuit court’s ruling that it would only accept the

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2005 survey by Charles Smith for a limited purpose. Accordingly, since the Prestons failed
to raise this issue before the circuit court, we deem it to be waived.

The Prestons further assert that the circuit court erred by holding that no evidence
was presented relating the subject property to Randolph Street. However, the Prestons
misstate the circuit court’s holding. Rather, the circuit court held that the Prestons
“produced no evidence by which the real property they inherited from their father was at
any time defined by any direct reference to its distance from any ascertainable monument
at or near Randolph Street.” (emphasis added). The Prestons do not identify any such
monument. Accordingly, the circuit court did not err in this regard.

Next, the Prestons assert that the circuit court erred by dismissing them from the
case when their claim for interference with their access to the subject property was
unresolved. However, as noted by the circuit court, the Prestons never asserted a formal
cause of action against the Commission and therefore, there was no claim remaining for or
against them, and the circuit court did not err in dismissing the Prestons from the matter.

Finally, the Prestons assert that the circuit court erred by taking property claimed by
them when no one else demonstrated a superior claim. However, as mentioned previously,
no taking occurred here as the circuit court specifically held that the Commission failed to
prove that the subject property was private land suitable for taking by eminent domain.
Further, even though the Prestons are the only ones who have asserted a claim to the subject
property, West Virginia Code § 54-2-18 still requires the circuit court to be “satisfied that
the persons entitled” to be compensated are before the court in order for the court to
distribute the compensation for the taking. Therefore, simply making a claim to the subject
property is not enough to entitle the Prestons to any proceeds that stem from its taking,
should that occur. Accordingly, there is no merit to this assignment of error.

Therefore, we affirm the circuit court’s February 8, 2023, order.

Affirmed.

ISSUED: March 25, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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