Steven Roche v. Michelle Jill Wade, etc., 16-1031

Background

The land at issue was originally one tract owned by W.T. Johnson, partitioned in 1876 and again in 1888 into parcels that now comprise petitioner Roche’s parcel (middle), respondent Wade’s parcel (south), and parcels to the north; an old road bed ran through the original tract from the Everett Green Road (north) to Johnson’s Crossroads Road (south).
Johnson’s deed to the northern parcel expressly reserved a right-of-way to the Everett Green Road; no express right-of-way was granted in the deed to the southern (Ellis/Wade) parcel; the middle parcel (Laura McNeer → Margaret Ellison → Roche) had no express easement in its deed but a 1939 partition order referenced two easements to different public roads.
Roche sued Wade seeking a declaratory judgment and injunction declaring an easement over Wade’s land either implied by necessity (way of necessity) or implied through prior use; Roche also sought punitive damages (later dismissed).
At trial the court granted Wade’s JMOL as to an easement by necessity (finding alternate access to the north) but denied Roche’s JMOL on implied prior use; the jury found for Wade (no implied prior-use easement or it was abandoned/extinguished).
Roche appealed only the circuit court’s JMOL rulings; the Supreme Court of Appeals affirmed, holding Roche failed to prove necessity and that questions of prior use were properly left to the jury.

Issues

Issue	Plaintiff's Argument (Roche)	Defendant's Argument (Wade)	Held
Whether Roche has an easement implied by necessity over Wade’s parcel	Johnson’s deeds left the middle parcel landlocked without an easement; traversing Wade’s land was the practical/shorter route so an easement by necessity was strictly necessary	There was alternative access to the north (Everett Green Road) via other parcels and state/right-of-way evidence, so no strict necessity existed	Court: No easement by necessity — alternative access existed at severance, so third element not met.
Whether Roche has an easement implied through prior use over Wade’s parcel	Historical use and 1939 partition language show a continuous, obvious use indicating parties intended a permanent easement across Wade’s tract	The 1939 order and correspondence show primary access was to the north; use across Wade’s parcel was not shown to be so continuous/obvious as to establish intent	Court: Question of prior use was properly for the jury; JMOL for Roche denied and jury verdict for Wade affirmed.
Standard for JMOL on these easement claims	Roche contended the evidence (viewed favorably) met clear-and-convincing proof so JMOL should be granted	Wade argued that material disputes existed concerning necessity and continuous prior use, precluding JMOL	Court: Applied de novo review; affirmed JMOL for necessity and denial re: prior use — evidence equivocal so jury determination appropriate.
Whether petitioner proved easement elements by clear and convincing evidence	Roche asserted he met burden for both types of implied easement	Wade maintained Roche failed to meet the heightened burden, especially for necessity and permanence of prior use	Court: Roche failed to meet clear-and-convincing standard for necessity and failed to establish permanence of prior use as a matter of law.

Key Cases Cited

Cobb v. Daugherty, 225 W. Va. 435, 693 S.E.2d 800 (2010) (elements and standards for easement implied by necessity and by prior use)
Brannon v. Riffle, 197 W. Va. 97, 475 S.E.2d 97 (1996) (standard for directing a verdict/JMOL viewed in light most favorable to nonmovant)
Gillingham v. Stephenson, 209 W. Va. 741, 551 S.E.2d 663 (2001) (de novo review standard for JMOL)