John D. Sitar and Kenneth K. Sitar v. Linda K. DeChambeau, Kenneth L. Hopkins, Gregory R. McBride, and Jane K. McBride

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

JOHN D. SITAR and KENNETH K. SITAR,
Plaintiffs Below, Petitioners

v.) No. 24-ICA-23 (Cir. Ct. of Hampshire Cnty. Case No. CC-14-2021-C-59)

LINDA K. DECHAMBEAU, KENNETH L. HOPKINS, FILED
GREGORY R. MCBRIDE, and JANE K. MCBRIDE,
February 28, 2025
Defendants Below, Respondents
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioners John D. Sitar and Kenneth K. Sitar (collectively, “Sitars”) appeal the
Circuit Court of Hampshire County’s December 20, 2023, final order following a bench
trial awarding a prescriptive easement to the Respondents Linda K. DeChambeau, Kenneth
L. Hopkins, Gregory R. McBride, and Jane K. McBride (collectively,
“DeChambeau/McBride Respondents”) over a road that traverses the Sitars’ properties and
accesses the DeChambeau/McBride Respondents’ properties. The DeChambeau/McBride
Respondents filed a joint response.1 The Sitars filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the lower tribunal’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the lower tribunal’s decision is reversed, and this case is
remanded for the circuit court to issue a judgment order consistent with this decision.2

1
John D. Sitar and Kenneth K. Sitar are represented by Richard G. Gay, Esq. Linda
K. DeChambeau, Kenneth L. Hopkins, Gregory R. McBride, and Jane K. McBride are
represented by J. David Judy, III, Esq., and Aaron M. Judy, Esq. WV Properties, LLC, and
Kenneth Yoder, additional defendants below, settled their dispute with the Sitars following
trial and are not participating in this appeal.
2
On July 25, 2024, the Sitars filed a motion for leave to file a supplemental appendix
requesting inclusion of a settlement agreement with WV Properties, LLC, and Kenneth
Yoder in the record. Based on our decision herein, we refuse the motion for leave to file a
supplement appendix filed by the Sitars as moot.
1
In November 2021, the Sitars filed a declaratory judgment action against WV
Properties, LLC, Kenneth Yoder, Linda K. DeChambeau, Kenneth L. Hopkins, Gregory
R. McBride, and Jane K. McBride in the Circuit Court of Hampshire County seeking a
determination of what right, if any, the defendants had to Stoney Lonesome Road, a road
that traverses the Sitars’ properties. The defendants filed counterclaims asserting that
Stoney Lonesome Road is a legal right of way by deed, necessity or prescription for the
purpose of ingress and egress for farming, domiciles, recreation, necessities of life,
habitation and all other general use.

Except for a small portion owned by WV Properties, LLC, which lies on the east
side of the South Branch Potomac River, the land at issue in this case consists of multiple
contiguous tracts (approximately 1807 acres) owned by the parties, lying just west of the
Town of Romney, north of U.S. Route 50, and on the west side of the South Branch
Potomac River, with the western bank of the South Branch Potomac River forming the
eastern boundary of the various tracts for several miles in Hampshire County. The tracts
of land and the party that owns each tract, going from U.S. 50 and with the flow of the
river, south to north, are as follows:

(i) 240 acres owned by Kenneth Sitar (3/4 interest) and notice defendant, Paul Williams,
Timothy Williams and Eugene Williams (joint 1/4 interest) (previously known as the
“Williams Farm”).

(ii) 406.47 acres and 3.75 acres with residence owned by John Dan Sitar (part of what was
previously known as the “Harmison Farm”).

(iii) 906.261 acres total (3 tracts) owned by WV Properties, LLC (part of what was
previously known as the “Long Farm”) – includes 74.492 acre tract that contains a road
(not Stoney Lonesome Road) running up and over Mill Creek Mountain from Fox Hollow
Road (top of mountain) down to Kenneth Yoder’s home (Kenneth is the sole member of
WV Properties).

(iv) 190.5 acres owned by Kenneth Hopkins and Linda DeChambeau (part of what was
previously known as the “Kuykendall Farm”).

(v) 60 acres owned by Gregory McBride and Jane McBride (part of what was previously
known as the “Kuykendall Farm”). Jane McBride is a Kuykendall descendant.

Stoney Lonesome Road (“Road”) goes from U.S. Route 50 and runs approximately
two miles through the Sitars’ property north to the WV Properties, LLC’s southern property
line and provides access to the DeChambeau/McBride Respondents’ properties.

A three-day bench trial was held upon the unresolved issues in the case: (1) whether
any of the Respondents had an express right of way or easement for ingress to and egress

2
from their respective properties over the Road and a right of way from those Respondents’
respective real estate running over and through the lands belonging to the Sitars to the
intersection of the Road with U.S. Route 50 (the Northwestern Turnpike); and (2) whether
any of the Respondents had a right of way or easement by prescription for ingress to and
egress from their respective properties over the Road. The circuit court found that the
DeChambeau/McBride Respondents proved by clear and convincing evidence that they
held a prescriptive easement over the Road. The final order was appealed by both parties.

On appeal, we apply the following standard of review:

In reviewing challenges to the findings and conclusions of the circuit court
made after a bench trial, a two-pronged deferential standard of review is
applied. 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 Sitars raise six assignments of error3 alleging that the circuit court erred
because: (1) there was no evidence introduced at trial proving that use of Stoney Lonesome
Road by the DeChambeau/McBride Respondents or their predecessors over the Sitars’
property was adverse, constituted trespassing, or could have been prevented by resorting
to law; (2) the DeChambeau/McBride Respondents failed to prove all prescriptive
easement elements by clear and convincing proof; (3) the circuit court erred by failing to
determine that evidence of neighborly relations was evidence of implied permission; (4)
under O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561 (2010), the circuit court
erroneously shifted the burden of proof from the parties claiming the prescriptive easement
to the Sitars; (5) directly contrary to O’Dell, the circuit court erroneously applied a
presumption that the continuous and uninterrupted use of another's land for ten years is
adverse; (6) the circuit court erroneously determined that the DeChambeau/McBride
Respondents held an “implied prescriptive easement,” because no such easement exists
under West Virginia law.

The DeChambeau/McBride Respondents raise four cross-assignments of error: (1)
use of the terms “by implication” and “as if they had a prescriptive easement” were
unnecessary, without legal foundation, and in conflict with the findings of fact and
conclusions of law; (2) the finding by the Court of limitations in Paragraph 58C, Page 23
of the order following bench trial are in conflict with the findings of fact and conclusions

3
The Sitars raised a seventh assignment of error in their initial brief, but explicitly
withdrew it in their reply brief.
3
of the circuit court and are not supported by legal authority; (3) the maintenance fees
ordered by the circuit court are without foundation, factual support, or legal authority; and
(4) this Court should revisit and overrule the allowance of “inferred permission” based on
“neighborly relations” in cases such as this historical prescriptive easement necessary for
existence of homes, farms and businesses.4

In O’Dell v. Stegall, the Supreme Court of Appeals of West Virginia (“SCAWV”)
provided clear guidance on what is necessary to establish a prescriptive easement, what the
term “adverse use” means, and what evidence is required to establish it:

A person claiming a prescriptive easement must prove each of the following
elements: (1) the adverse use of another's land; (2) that the adverse use was
continuous and uninterrupted for at least ten years; (3) that the adverse use
was actually known to the owner of the land, or so open, notorious and visible
that a reasonable owner of the land would have noticed the use; and (4) the
reasonably identified starting point, ending point, line, and width of the land
that was adversely used, and the manner or purpose for which the land was
adversely used.

Syl. Pt. 1, O’Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561 (2010).

“A person claiming a prescriptive easement must establish each element of
prescriptive use as a necessary and independent fact by clear and convincing evidence, and
the failure to establish any one element is fatal to the claim.” Id. at Syl. Pt. 3. Adverse use
of land is a wrongful use, made without the express or implied permission of the owner of
the land. Id. at Syl. Pt. 5. Notably, the SCAWV held that “[t]o the extent our prior cases
suggest that proof of adverse use is not required, or that the continuous and uninterrupted
use of another’s land for ten years is presumed to be adverse, they are hereby overruled.”
Id. at Syl. Pt. 7.

We turn to the question of whether the DeChambeau/McBride Respondents proved
each element of prescriptive use of the Road by clear and convincing evidence. Based on

4
This Court is not authorized to review and overrule decisions of the SCAWV. See
Syl. Pt. 5, Jackson v. Belcher, 232 W. Va. 513, 753 S.E.2d 11 (2013) (“Judicial decisions
rendered by the Supreme Court of Appeals of West Virginia are laws of this State.”); Barr
v. Jackson, 250 W. Va. 399, , 903 S.E.2d 268, 274 (Ct. App. 2024) (“This Court, as a
midlevel court of appeal, does not have the authority to review or overturn decisions of the
SCAWV”).

4
our review of the extensive record, we find that the DeChambeau/McBride Respondents
did not prove a key element - adverse use of the Road.5

With respect to adversity, the DeChambeau/McBride Respondents contend that
because everyone used the road without express permission, use of the Road was adverse.
The Sitars assert that the Road was used with implied permission from the Sitars and their
predecessors. The Sitars argue that the DeChambeau/McBride Respondents did not
establish adversity by clear and convincing proof. The Sitars further argue that the evidence
presented at trial proved the opposite. The evidence showed that everyone used the road
with permission. Because permission need not be express, and can be implied by proof of
neighborly relations, the Sitars argue, pursuant to the holdings in O’Dell, use of the Road
could not have been adverse. We agree.

First, “[p]ermission may be inferred ‘from the neighborly relation of the parties, or
from other circumstances.’” O’Dell, 226 W. Va. at 613, 703 S.E.2d at 584 (quoting 4
Powell on Real Estate, § 34.10[2][a]). Based on our review, the record is replete with trial
evidence from both sides that use of the Road was with the implied permission of the Sitars
and their predecessors. For example: (1) Respondent Hopkins testified that he was a friend
of John Sitar, he had a neighborly relationship with all the other landowners to the north
and that to access his property, John Sitar, and later John Dan Sitar, gave him locks, keys,
and combinations, etc., to the gate if the gate was locked; (2) Richard Cauthorn, former
owner of the McBride property, testified that his relationship with the Sitar family was very
neighborly and that he never believed he was trespassing when using the Road; (3)
Respondent Jane McBride, a Kuykendall descendent, testified that she knew the Sitar
family very well and that she did not believe she was trespassing when using the Road; (4)
DeChambeau/McBride Respondents’ witness, Larry Stinson, a former member of a
hunting club which used the Road for access, testified that he did not believe he was
trespassing when using the Road, and assumed he was using the Road with permission; (5)
DeChambeau/McBride Respondents’ witness, Gary Buckbee, who was involved in the
farming operation with his father and Richard Kuykendall, father of Respondent Jane
McBride, testified he knew John Sitar well, that they were friends and neighbors and that
he did not consider himself to be trespassing when using the Road; and (6) Petitioner John
Dan Sitar testified that his family and the people who owned tracts north of their property
were farmers; everybody worked together, shared what they had, it was a custom that you
just could use the Road, and they never objected to use of the Road.

Secondly, the Sitars and their predecessors gave the DeChambeau/McBride
Respondents and their predecessors keys and lock combinations so that they could open
gates that otherwise barred access to the Road. We find that providing keys and lock

5
The parties raise numerous assignments and cross-assignments of error on appeal.
However, the failure to prove adversity and resulting failure to establish a prescriptive
easement is dispositive, and we limit our review to the dispositive issue.
5
combinations is a clear indication that the Road was being used with permission. See Carr
v. Veach, 244 W. Va. 73, 80, 851 S.E.2d 519, 526 (2020) (providing keys and remote
controls to locks could not be a more obvious manifestation of permission).

The DeChambeau/McBride Respondents had the burden to establish that use of the
Road was adverse, and they did not make that showing. Indeed, the trial evidence shows
that the Road was used with implied permission for generations. Consequently, pursuant
to the holdings in O’Dell, there is no adversity and can be no prescriptive easement. 6

Accordingly, we reverse the December 20, 2023, final order and remand to the
Circuit Court of Hampshire County to enter a judgment order consistent with this decision.

Reversed and Remanded.

ISSUED: February 28, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear

Judge S. Ryan White not participating

6
Because Petitioners failed to establish that their use of the private road across
Respondents’ property was adverse, we do not address the remaining O’Dell factors. See
Syl. Pt. 3, O’Dell (“failure to establish any one element is fatal to the claim” for a
prescriptive easement).
6