O'DELL v. Stegall

Two-and-a-half centuries ago, in the days of Thomas Fairfax and John Savage, the doctrine of prescriptive easements took root in our common law. When estates were so large that the boundaries were unknown, and vast tracts were owned by individuals who never set foot on the land, it was reasonable and economical for the law to reward a diligent user of the land with an easement by prescription at the expense of the absentee owner.

In 1719, Lord Fairfax inherited a grant of 5.28 million acres of land in what is now northern Virginia and eastern West Virginia (including what is now Jefferson county). However, Lord Fairfax never set foot on his land until around 1735, and — since the territory had never been mapped when the grant by the British Crown was made — the western boundary was not established until 1746. In 1772, Captain Savage received a grant from the British Crown of 28,600 acres of land along the Ohio and Big Sandy Rivers (for himself and some of his soldiers, in what is now Cabell and Wayne counties); Captain Savage never set foot on the property. “Squatters” and trespassers on both grants were common. The litigation over the use and ownership of the land contained within these two grants was extensive and, in some cases, legendary. 1

But in today’s world, our law on the doctrine of prescriptive easements is a tangled mass of weeds. The doctrine essentially rewards a trespasser, and grants the trespasser the right to use another’s land without compensation. Such a significant imposition on the rights of modern landowners discourages neighborly conduct, and does not square with the modern ideal that we live in a congested but sophisticated, peaceful society.

In this appeal from the Circuit Court of Jefferson County, we are asked to examine a jury’s verdict finding that a plaintiff had acquired a prescriptive easement to use a gravel lane. The jury’s verdict also awarded the plaintiff damages against his neighbors, largely on the finding that the neighbors had indecorously interfered with the plaintiffs prescriptive easement. The circuit court entered judgment on the jury’s verdict in favor of the plaintiff.

After careful consideration of our morass of case law, we now take this opportunity to clarify the common law doctrine of prescriptive easements. We endeavor to eliminate archaic and contradictory terms, and establish terms and definitions that are understandable to the modern factfinder. We also seek to indelibly imprint in our common law a fundamental policy consideration: easements by prescription are absolutely not to be favored.

After a thorough examination of the record, we believe that the plaintiff wholly failed to establish that he had a prescriptive easement, and failed to prove his other causes of action seeking damages. Accordingly, we reverse the circuit court’s order entering judgment for the plaintiff on the jury’s verdict.

I.

Facts and Background

In 2006, plaintiff (and appellee) Michael J. O’Dell bought land and a home on the Old Leetown Pike — now Route 15 — in Jefferson County, West Virginia. The plaintiffs home was originally built and used as the German Baptist Brethren Church starting sometime around 1898, and was converted into a residence sometime after 1999. The plaintiffs lot abuts the Leetown Pike/Route 15, and the plaintiff has a driveway that connects directly to this public road.

*600 Directly behind and adjacent to the plaintiffs property, defendants (and appellants) Robert and Virginia Stegall own land and a home. The defendants’ property is “landlocked” and surrounded on all sides by land owned by other individuals.

This ease concerns a private, 25-foot-wide gravel lane that borders on the northern edges of both the defendants’ property and the plaintiffs property. The defendants do not own the gravel lane, but it is their only access to a public highway (the Leetown Pike/Route 15).

The central question is whether the plaintiff has a legal right to use the gravel lane for ingress to and egress from the north side of his home. The plaintiff already has access to the Leetown Pike/Route 15 by way of his own driveway across his property on the south side of his home. The plaintiff does not know who owns the land beneath the gravel lane, but he insists that he has a prescriptive easement to use the lane as an additional access to his property from the Leetown Pike. The defendants retort that the plaintiff does not have a prescriptive easement, and assert that the plaintiffs use will cause wear and tear to the gravel lane which the defendants are contractually obligated to repair.

At the outset, we note that we have struggled to understand the parties’ rights to access and use the gravel lane. This ease demonstrates that there is nothing more vicious than a fight over a piece of land between two neighbors. The parties’ briefs and the record from the trial court reveal more ridiculing than reasoning, more finger-pointing than fact-finding. For instance, the plaintiff has repeatedly asserted that he has a prescriptive easement to use the gravel lane, yet the plaintiffs own expert testified at trial that the plaintiff did not have a prescriptive easement. Likewise, the defendants have repeatedly asserted that they have an express easement to use the gravel lane, yet all the documentation in the record undermines that assertion. And throughout the case, neither party seems to have made any effort to identify the actual owner of the real estate upon which the gravel lane sits.

Setting aside the parties’ vigorous assertions, as best we can ascertain, this is the historical underpinning of the parties’ rights to access the gravel lane.

A. History of the Gravel Lane

In 1890, Isaac Strider acquired a 23-acre tract of land along the Leetown Pike. Beginning in 1893, Mr. Strider divided parts of the tract into numerous smaller residential lots for sale. Four of these lots, which now border the gravel lane at issue, were created between 1893 and 1911. Mr. Strider kept the remainder of the 23-aere tract, which also borders on the gravel lane.

The four lots created by Mr. Strider are related to one another in a roughly square pattern: two lots (one of which is now the plaintiffs) border the Leetown Pike/Route 15, a public highway; the other two lots (one of which is now the defendants’) are situated behind the first two, and — but for the 25-foob-wide gravel lane at issue in this case— would be landlocked. The gravel lane at issue extends eastward from the Pike and separates the two northern lots from the two southern lots. The plaintiff owns the southern lot bordering the Leetown Pike; the defendants own the southern lot that is landlocked. As best we can discern from the record, Mr. Strider retained all of the land to the east of the four lots, and he used the gravel lane as one way to access the remainder of his 23-acre tract from the Leetown Pike. (See Figure 1.) [ATTACHED IN SEPARATE DOCUMENT]

*601 [[Image here]]

The first of the four lots, conveyed in 1893, is about Vj¿ acres in size, borders the Lee-town Pike and now borders the north side of the gravel lane. The 1893 deed from Mr. Strider makes no mention of the gravel lane. The current owners of the lot, Clifford E. and Mary Belle Starliper, have lived on the lot for over 50 years and claim no ownership interest or other right in the gravel lane.

The second of the four lots (about % acre in size) was conveyed by Mr. Strider in 1898, borders the Leetown Pike/Route 15, and borders the south side of the gravel lane. The 1898 deed makes no mention of the gravel lane. Although the lot is now owned by plaintiff O’Dell, as previously mentioned the lot was originally used by the German Baptist Brethren Church. 2 The trial testimony suggested that in the decades before 1999, churchgoers used the gravel lane at least twice a week to access a parking lot at the rear of the church. This testimony did not reveal if the use was with the permission of the owner of the gravel lane, or whether the churchgoers were trespassing.

The gravel lane at issue is first mentioned in an 1899 deed by Mr. Strider conveying the *602 third of the four lots. The third lot (about & acre in size) is located on the north edge of the gravel lane, and is landlocked behind the lot owned by the Starlipers. The third lot is now owned by Sidney Seibert. The plat in the 1899 deed shows a 25-foot-wide way marked as a “road” or “driveway” owned by “I.H. Strider” extending eastward from the Leetown Pike, passing adjacent to the first and third lots, and extending beyond to a tract of land marked as being owned by “I.H. Strider.” In the deed, Mr. Strider conveyed to the buyer of the third lot and “her heirs and assigns forever” “the right to use the road for ingress and egress 25 ft. wide running from the said lot through the land of I.H. Strider to the Leetown & Charles Town road[.]”

Mr. Strider conveyed the fourth lot — the southern landlocked lot which is now owned by the defendants — in 1911. The plat with the 1911 deed shows that the fourth lot (about % acre in size) borders on the gravel lane, which is labeled in the plat as a “lane to public road.” While the deed apparently contains no wording creating an explicit right for the owner of the lot to use the gravel lane, 3 it appears that since 1911 all of the owners of the defendants’ lot have used the gravel lane to access the Leetown Pike.

In 1988, three parties with property bordering the gravel lane (the prior owners of the defendants’ landlocked lot; the prior owners of Ms. Seibert’s landlocked lot; and the owners of the remainder of the 23-acre tract formerly owned by Mr. Strider) signed a “road maintenance agreement” that was recorded with the county clerk. The plaintiffs predecessor, the German Baptist Brethren Church, did not sign the 1988 agreement. The road maintenance agreement notes that the three parties were the owners of “parcels of real estate that are made accessible to [the Leetown Pike/]Route 15 by a right of way 25 feet in width[.j” The parties agreed, “for themselves, their heirs and assigns,” that they would “maintain the road surface of the 25 foot wide road and right of way in its present state of repair by sharing equally the cost of maintenance and repairs.” As the current owners of one of the landlocked lots, the defendants agree that they are bound by the 1988 road maintenance agreement.

Donald and Patricia Walker (who appear to now own the remainder of the 23 acres formerly owned by Mr. Strider) admit that over the years, they used the gravel lane as a means of access to their land from the Lee-town Pike with construction equipment and vehicles. At some point in 2006, the Walkers subdivided the remainder of the 23-acre tract, constructed another road for access, and represented to the county planning commission that they would no longer allow access to their land by way of the gravel lane. 4 After the instant lawsuit was filed in 2008, the Walkers stopped using the gravel lane.

B. The Lawsuit to Establish a Prescriptive Easement

In 2008, numerous disagreements arose between plaintiff O’Dell and the defendant Stegalls. Essentially, the plaintiff claimed that he had the right to use the gravel lane to access a horseshoe-shaped driveway on the northern edge of his land. This horseshoe-shaped driveway appears to have been partially constructed and connected to the gravel lane sometime after 1999. The defendants objected to the plaintiffs use of the gravel lane to access the horseshoe-shaped driveway, called the police two times, and threatened to have the plaintiff prosecuted for trespassing. The defendants also took several photographs of the plaintiff driving on the gravel lane, and tape-recorded a conversation that they had with the plaintiff *603 about his use of the lane, while the plaintiff and one of the defendants were standing on the lane.

In response to the defendants’ objections, plaintiff Michael O’Dell filed the instant lawsuit in September 2008 against all of his neighbors who border the gravel lane. In counter-clockwise fashion as their properties related to the plaintiffs home, the plaintiff brought suit: (1) against the defendants, Robert and Virginia Stegall, who own the landlocked parcel behind plaintiff O’Dell’s home; (2) against Donald and Patricia Walker, the owners of what appears to be the remainder of Isaac Strider’s 23-acre tract that is at the end of the gravel lane; (3) against Sidney Seibert, the owner of the 1898 outparcel that is landlocked behind the Starlipers’ lot, and the only person who has an express easement to use the gravel lane; and (4) against Clifford and Mary Belle Starliper, the owners of the 1893 outparcel that borders the Leetown Pike.

The primary count in the plaintiffs complaint sought to “quiet title by way of a prescriptive easement” allowing the plaintiff to use the gravel lane. The plaintiff claimed that the gravel lane had, “by its nature and duration of its open, continuous, notorious and adverse use, as to any owner of the parcel” become a “community driveway servicing as an ingress and egress easement” to the plaintiffs property.

However, the plaintiffs complaint also sought damages from defendants Donald and Virginia Stegall for “intentionally, deliberately and maliciously” interfering with the plaintiffs alleged prescriptive easement. Two other counts in the complaint sought compensatory and punitive damages for abuse of process and the tort of outrage, largely because the defendants had called the police on two occasions and alleged that the plaintiff was trespassing by using the gravel lane. Finally, an amended complaint by the plaintiff alleged that the defendant Stegalls should be liable for compensatory and punitive damages because they had civilly conspired to take pictures of the plaintiff when he used the gravel lane, and to tape record a conversation between one of the defendants and the plaintiff while standing on the gravel lane.

Before trial, the plaintiff settled his claims against the Walkers, Ms. Seibert, and the Starlipers. The Walkers entered into a settlement agreement on April 23, 2009 with the plaintiff, in which the Walkers claimed that they had “no interest in the unnamed lane referred to in Plaintiffs Complaint.” 5 Ms. Seibert settled and gave the plaintiff a purported “quitclaim deed of easement” in which she waived any objection to the plaintiffs use of the gravel lane, and agreed that the plaintiff would have an “easement and right-of-way over and across” the portion of the gravel lane that bordered the plaintiffs property, “for purposes of ingress to and egress from [plaintiffs] real estate and the public road[.]” 6 Ms. Seibert’s quitclaim deed did not convey title to any land or to the lane, or convey her express easement. Finally, the Starlipers said that they had no interest *604 whatsoever in the lane, and the plaintiff consented to their dismissal from the lawsuit. The circuit court dismissed all of the plaintiffs claims against the Walkers, Ms. Seibert, and the Starlipers with prejudice, and those parties are not part of the instant appeal.

A jury trial against the defendant Stegalls was held in June 2009, wherein the plaintiff asserted that he had a prescriptive easement to use the gravel lane. To support this assertion, he introduced the testimony of several individuals who stated that there used to be a parking lot behind the church that now serves as the plaintiffs home. These individuals said that, for several decades prior to 1999, visitors to the church had continuously used the gravel lane to access the parking lot.

The plaintiff also offered the expert testimony of Fred Gates, a land surveyor, to help establish the plaintiffs legal right to use the gravel lane. When asked about what facts established a prescriptive easement, Mr. Gates said, “I am not sure this is a prescriptive easement.” Instead, Mr. Gates speculated that the plaintiff had a right to use the gravel lane merely because “[i]t appears that back in the 1890s Mr. Strider created a series of lots around a right of way that [was] intended to serve them.”

After a three-day trial, on June 11, 2009, the jury concluded that the plaintiff had established a prescriptive easement to use the gravel lane as an “ordinary access to his residence.” The jury also awarded the plaintiff $5,300.00 in compensatory damages and $4,700.00 in punitive damages against the defendant Stegalls for: (1) intentionally interfering with the plaintiffs right of ingress and egress; (2) committing the intentional tort of outrage “by virtue of threats of trespass prosecution and calls to law enforcement ... and/or recording [plaintiff] O’Dell’s conversations;” (3) civil conspiracy; and (4) invasion of privacy. The jury ruled in favor of the defendants on one count, finding that they had not engaged in abuse of process.

The circuit court denied the defendants’ numerous motions for post-trial relief. The defendants now appeal the circuit court’s judgment entered on the jury’s verdict, and refusal to set aside the judgment.

II.

Standard of Review

We are asked to review the circuit court’s order denying a post-verdict motion for judgment as a matter of law. The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial is de novo. Syllabus Point 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). Our standard for reviewing such an order was stated in Syllabus Point 2 of Fredeking v. Tyler, where we said:

When this Court reviews a trial court’s order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.

This Court has historically favored supporting jury verdicts and will affirm a verdict, unless there clearly is insufficient evidence to support the verdict. For instance, in Syllabus Point 5 of Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983) we said that:

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.

We now turn to the arguments of the parties.

*605 III.

Discussion

The defendants, Robert and Virginia Ste-gall, assert on appeal that the jury’s verdict is wrong for a host of different reasons, but their central argument boils down to this: the plaintiff failed to prove he had a prescriptive easement to use the gravel lane to access his property. They therefore assert that the jury had no basis to award damages against the defendants. After carefully reviewing the trial record, we agree.

To understand why, we begin with a primer to clear up the morass that is our case law on the doctrine of prescriptive easements.

A.

The Law of Prescriptive Easements

“An easement is a right that one person has to use the land of another person, for a specific purpose.” Cobb v. Daugherty, 225 W.Va. 435, 441, 693 S.E.2d 800, 806 (2010). “The land benefitting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate.” Newman v. Michel, 224 W.Va. 735, 740-41, 688 S.E.2d 610, 615-16 (2009).

The general rule (with several exceptions not important to the instant case) is that an easement can be created in three ways: by prescription — the easement equivalent of adverse possession; by an express grant or reservation; or ... by implication from the particular set of facts and circumstances.

Cobb, 225 W.Va. at 441, 693 S.E.2d at 806 (quotations and footnotes omitted).

A prescriptive easement arises through the adverse use of another person’s land. “There is a similarity between the elements which must be shown to establish a prescriptive easement and those necessary for adverse possession.” Veach v. Day, 172 W.Va. 276, 278, 304 S.E.2d 860, 863 (1983) (per curiam). The main distinction between adverse possession and a prescriptive easement “is that an adverse possession claimant occupies or possesses the disputed land, whereas one seeking a prescriptive easement makes some easement-like limited use of the disputed land.” Newman v. Michel, 224 W.Va. at 743, 688 S.E.2d at 618. 7

“Prescriptive easements are based on the notion that if one uses the property of another for a certain period without permission and the owner fails to prevent such use, the prolonged usage should be treated as conclusive evidence that the use is by right.” Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land, § 5:1 (2010).

Prescription doctrine rewards the longtime user of property and penalizes the property owner who sleeps on his or her rights. In its positive aspect, the rationale for prescription is that it rewards the person who has made productive use of the land, it fulfills expectations fostered by long use, and it conforms titles to actual use of the property. The doctrine protects the expectations of purchasers and creditors who act on the basis of the apparent ownerships suggested by the actual uses of the land.

Restatement (Third) of Property (Servitudes), § 2.17, cmt. c. “[I]ts underlying philosophy is basically that land use has historically been favored over disuse, and that therefore he who uses land is preferred in the law to he who does not, even though the latter is the rightful owner.” Finley v. Yuba County Water Dist., 99 Cal.App.3d 691, 696, 160 Cal.Rptr. 423, 427 (3d.Dist.1979). The doctrine of prescriptive easements “reflects] the philosophy that established patterns of land possession and use should be protected and that a diligent occupant should be re *606 warded at the expense of a careless owner.” Bruce & Ely, The Law of Easements and Licenses in Land, § 5.1. 8

In West Virginia, the case that firmly established the fundamental elements of the prescriptive easement doctrine is Town of Paden City v. Felton, 136 W.Va. 127, 66 S.E.2d 280 (1951). 9 In Syllabus Point 1 of *607 Town of Paden City, we stated the following rule:

To establish an easement by prescription there must be continued and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use.

Stated another way,

As to an easement by prescription, the requisites for its acquisition are continued and uninterrupted, open and visible, use of a definite right in the land of another which is identical to that claimed as an easement and has a relation to the use of, and a direct and apparent connection with, the dominant tenement under an adverse claim of right, for the prescriptive period of time.

Town of Paden City, 136 W.Va. at 137, 66 S.E.2d at 286. In West Virginia, the prescriptive period of time — ten years — derives from the statute of limitation for property disputes, W.Va.Code, 55-2-1 [1923] (“No person shall make an entry on, or bring an action to recover, any land, but within ten years next after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims.”).

Professors Brace and Ely state the prescriptive easement doctrine this way:

[Generally a person claiming [a prescriptive] easement must show the following: adverse, open and notorious, continuous and uninteirapted use of another’s land for the period of prescription.

The Law of Easements and Licenses in Land, § 5.2 (footnotes omitted). See also, Restatement (First) of Property, § 457 (“An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted.”). 10

Our examination of our prior cases applying the doctrine of prescriptive easements reveals a lack of any clear enunciation of the meanings of the concepts underlying the doctrine. “The range and redundancy of terms and requirements reflect the diversity of theories that have contributed to the making of American prescription doctrine.” Restatement (Third) of Property (Servitudes), § 2.17, cmt. g. Justice Miller once said that while it seems it is a “mere truism” to say that the “doctrine of adverse possession is firmly established in our law,” in fact “when one attempts an orderly assessment of the doctrine through the eases, it is at best an arduous task.” Somon v. Murphy Fabrication & Erection Co., 160 W.Va. 84, 89, 232 S.E.2d 524, 528 (1977). In Somon, Justice Miller attempted to refine and clearly establish the meaning of the concepts underlying the doctrine of adverse possession.

Like the Court in Somon, we will now attempt to set out definitions of the elements necessary to establish a prescriptive easement, definitions intended to guide a finder of fact. We recognize, however, that these definitions “are at best fragile guidelines to outline in a general way the elements of [prescriptive easements], which in the main cannot be naturally compartmentalized in a *608 given case. They serve only as a beginning point[.]” 160 W.Va. at 92, 232 S.E.2d at 529.

(1) Elements of the Prescriptive Easement Doctrine

To begin, after carefully considering the doctrine of prescriptive easements, we believe that the better expression of the doctrine is this: 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.

(2) Burden of Proof

The degree of proof necessary to establish a prescriptive easement is clear and convincing evidence. As we said in Syllabus Point 2 of Beckley Nat. Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935):

In order to establish a right of way by prescription, all of the elements of prescriptive use, including the fact that the use relied upon is adverse, must appear by clear and convincing proof.

See also, Syllabus Point 1 of Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976) (“The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing proof.”); Syllabus Point 1, Fanti v. Welsh, 152 W.Va. 233, 161 S.E.2d 501 (1968) (“A landowner who asserts the right to an easement by prescription over the land of another must establish such right by clear and convincing proof.”); Ely & Bruce, The Law of Easements and Licenses in Land, § 5:3 (“[T]he burden of proving the existence of a prescriptive easement rests on the claimant, and doubt will be resolved in favor of the landowner.”). “‘[C]lear and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established.” Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996), citing Wheeling Dollar Sav. & Trust Co. v. Singer, 162 W.Va. 502, 510, 250 S.E.2d 369, 374 (1978). “ ‘Clear and convincing evidence’ or ‘clear, cogent and convincing evidence’ is the highest possible standard of civil proof[.] ... It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.” Cramer v. West Virginia Dept. of Highways, 180 W.Va. 97, 99 n. 1, 375 S.E.2d 568, 570 n. 1 (1988) (per curiam ). 11

Prescriptive easements are not *609 favored in the law. 12 “It is axiomatic that easements by prescription are not favored in law because they necessarily work losses or forfeitures of the rights of others.” Zimmerman v. Newport, 416 P.2d 622, 629 (Okl. 1966). “In this important matter, of subjecting, without pay, one man’s land for the use of another, we must remember that the claimant carries the burden of proof, and he must show a use as of right, a hostile, adversary use, clearly show it.” Crosier v. Brown, 66 W.Va. at 277, 66 S.E. at 328. “Each ... element[ ] ... must be established as a necessary, independent, ultimate fact, the burden of showing which is on the party asserting the prescriptive title, and the failure to find any one of such elements [is] fatal ..., for such failure to find is construed as a finding against it.” Carnahan v. Moriah Property Owners Ass’n, Inc., 716 N.E.2d 437, 441-42 (Ind.1999), quoting Monarch Real Estate Co. v. Frye, 77 Ind.App. 119, 124-25, 133 N.E. 156, 158 (1921). “The absence of any one or all of such requisites will defeat a claim of a right to an easement by prescription.” Fanti v. Welsh, 152 W.Va. at 236, 161 S.E.2d at 503.

Accordingly, we hold that 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.

We now turn to the definitions of the four elements that a person claiming a prescriptive easement is required to establish.

(3) “Adverse Use” of Another’s Land Defined

A person claiming a prescriptive easement must first show that his or her use of the servient estate was “adverse” to the rights of the true owner. Without the requirement of adversity, “licenses would grow into grants of the fee, and permissive occupations of land become conveyances of it. ‘It would shock that sense of right,’ Chief Justice Marshall said ... ‘if a possession which was permissive and entirely consistent with the title of another should silently bar that title.’ ” District of Columbia v. Robinson, 180 U.S. 92, 100, 21 S.Ct. 283, 45 L.Ed. 440 (1901), quoting Kirk v. Smith ex dem Penn, 22 U.S. 241, 9 Wheat. 241, 288, 6 L.Ed. 81 (1824).

But what does “adverse” truly mean? “ ‘Adverse use’ is a complex concept[.]” 13 Our cases discussing prescriptive easements have lobbed around the words “adverse” and “hostile,” but have never attempted to posit a forthright definition to guide a finder of fact. 14 Many of oar early cases are tarnished with a “residue of terminology that often *610 confuses modern analysis.” Fisher, “A Survey of the Law of Easements in West Virginia,” 112 W.Va.L.Rev. at 675. 15 This problem is not unique to West Virginia. As a Utah court said over six decades ago, “[t]he courts are not in accord as to the exact meaning of ‘adverse use’ when applied to prescriptive easements,” and great confusion “exists as a result of the courts’ unfortunate choice of words in characterizing the use necessary to initiate a prescriptive right.” Zollinger v. Frank, 110 Utah 514, 516-17, 175 P.2d 714, 715 (1946). 16

Moreover, instead of defining “adverse use,” in many of our early cases this Court simply presumed that a claimant’s use of another’s property was adverse, if the claimant had otherwise proven the remaining elements of the prescriptive easement doctrine. In doing so, the Court shifted the burden of proof from the claimant to the landowner, who had to prove that the servient estate had not been used adversely {e.g., the land had been used with permission). 17 Stated another way, while this Court has said the burden of proof is upon the claimant of a preserip *611 tive easement to prove adverse use of another’s land for ten years (by clear and convincing evidence, no less), at the same time we have also said that it is the landowner who bears the burden of proving that the claimant’s use was not adverse, 18 if the claimant merely showed ten years of continuous use of the land. This Court has never — until this case — addressed or attempted to explain this incongruity in our law.

The term “adverse use” does not imply that the person claiming a prescriptive easement has animosity, personal hostility, or ill will toward the landowner; the uncommunieated mental state of the person is irrelevant. Instead, adverse use is measured by the observable actions and statements of the person claiming a prescriptive easement and the owner of the land. 19 Kellison v. McIsaac, 131 N.H. 675, 680, 559 A.2d 834, 837 (1989) (subjective intent of adverse claimant does not determine validity of prescriptive claim); Dunbar v. Heinrich, 95 Wash.2d 20, 27, 622 P.2d 812, 816 (1980) (“[A]dversity is to be measured by an objective standard; that is, by the objectively observable acts of the user and the rightful owner.”); Bills v. Nunno, 4 Mass.App.Ct. 279, 284 346 N.E.2d 718, 723 (1976) (“‘Adverseness’ is found in the actual use made of the way by the claimant of the easement; the claimant’s uncommunicated mental state is immaterial.”).

“Adverse use” generally means the “use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one[.]” Malnati v. Ramstead, 50 Wash.2d 105, 108, 309 P.2d 754 (1957). Use