O'DELL v. ROBERT

also requires that the claim-ant's adverse use of another's property must be "uninterrupted" for ten years. A use can only be interrupted by the landowner "asserting ownership before the prescriptive period has expired." Bruce Ely, supra, § 5:15. "Actions by a third person do not interrupt an adverse usage because they do not represent an assertion of dominion by the owner. Moreover, brief interruptions caused by natural forces or construction projects do not negate continuity of usage." Id. (Footnote added). A claimant's adverse use may be interrupted by the owner of the servient estate physically blocking the way during the prescriptive period, or by the owner instituting successful legal proceedings. "Numerous courts have held when the potential servient owner, by either threats or physical barriers, succeeds in causing a discontinuance of the use, no matter how brief, the running of the prescriptive period is stopped." Pittman v. Lowther, 363 S.C. 47, 50, 610 S.E.2d 479, 480 (2005). "[A] barrier established for the purpose of, and in fact, interrupting an adverse claimant's use is effective even if it is ultimately removed by the adverse claimant." Trask v. Nozisko, 134 P.3d 544, 553 (Colo.App. 2006).

This element is different from adverse possession, where the actions of a third person, unrelated to the claimant, can interrupt an adverse possession. This is because, in order to claim adverse ownership of land, the claimant must show exclusive possession for the limitation period.

See, e.g., Trask v. Nozisko, 134 P.3d 544, 550 (Colo.App. 2006) ("To interrupt the acquisition of a prescriptive easement before the statutory period has run, the true owner must assert a claim to the land or perform an act that would reinstate the owner's possession. An owner may interrupt the running of the statutory period by physically limiting access to the property." Use was interrupted by large earthen berm blocking road for three days.); Kelley v. Westover, 56 Ark.App. 56, 60, 938 S.W.2d 235, 236-37 (1997) ("[A]ny unambiguous act of the owner of the land which evinces his intention to exclude others from the uninterrupted use of the right claimed breaks its continuity so as to prevent the acquisition of an easement therein by prescription." Owner felled trees, and placed barbed wire, brush and logs, across road.); Stiefel v. Lindemann, 33 Conn. App. 799, 811, 638 A.2d 642, 649 (1994) ("The owner of the servient land over which the right-of-way is used may interrupt the use by committing an act that breaks its continuity." Use interrupted when owner installed fence across right-of-way and planted shrubbery.); Pugh v. Conway, 157 Ind.App. 44, 299 N.E.2d 214 (1973) (use interrupted when servient landowner planted a garden on most of disputed area); Serrano v. Grissom, 213 Cal.App.2d 300, 28 Cal.Rptr. 579 (1963) (owner plowed up road and began farming the land).

However, mere unheeded requests, protests, objections, or threats of prosecution or litigation by a landowner that the claimant stop are insufficient to interrupt an adverse usage. These actions must result in the interruption of the use, no matter how brief. "Indeed, complaints may strengthen the conclusion that the claimant's use was hostile." Bruce Ely, supra, 5:16.

We therefore conclude that for an adverse use to be "continuous," the person claiming a prescriptive easement must show that there was no abandonment of the adverse use during the ten-year prescriptive period, or recognition by the person that he or she was using the land with the owner's permission. Additionally, the adverse use need not have been regular, constant or daily to be "continuous," but it must have been more than occasional or sporadic. All that is necessary is that the person prove that the land was used as often as required by the nature of the easement sought, and with enough regularity to give the owner notice that the person was a wrongdoer asserting an easement.

Furthermore, we hold that for an adverse use to be "uninterrupted," the person claiming a prescriptive easement must show that the owner of the land did not overtly assert ownership of the land during the ten-year prescriptive period. Mere un-heeded requests, protests, objections, or threats of prosecution or litigation by the landowner that the person stop are insufficient to interrupt an adverse usage. If any act by the landowner succeeded in causing the person to discontinue the adverse use, no matter how brief the discontinuance, then the adverse use was interrupted.

( 5) "Known" or "Notorious and Visible" Adverse Use Defined

To create a prescriptive easement, the claimant's adverse use must either be actually known to the rightful owner of the servient estate, or be open and notorious so that a reasonable owner would have been on notice of the adverse use. "If a right of way is claimed by prescription, the claimant should allege and prove that over the prescriptive period, without interruption, he (or a predecessor in title) used the way with such open frequency as to notify its owner of the purpose to subject his land to the use." Syllabus Point 1, in part, Nutter v. Kerby, 120 W. Va. 532, 199 S.E. 455 (1938). See also, Syllabus Point 5, Core v. Faupel, 24 W. Va. 238 (1884) ("Adverse possession in any case, in order to effect an ouster of the owner, must in its nature possess such notoriety, that the owner may be presumed to have notice of it and of its extent. It must be open, visible and exclusive.").

"Of course, where the landowner has actual knowledge of the adverse claim, the use need not be open and notorious." Bruce Ely, supra, § 5:13. See, e.g., Conley v. Conley, 168 W. Va. 500, 502, 285 S.E.2d 140, 142 (1981) ( per curiam) (claimant had established a prescriptive easement to use a gas line across the servient estate because the use of the line was "obvious to all parties involved"). " Black's Law Dictionary defines `actual knowledge' as `direct and clear knowledge, as distinguished from constructive knowledge,' Black's Law Dictionary at 888 (8th Ed. 2004)[.]" Mace v. Ford Motor Co., 221 W. Va. 198, 204, 653 S.E.2d 660, 666 (2007).

The "open and notorious" element is "designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement." Zimmer v. Dykstra, 39 Cal.App.3d 422, 431, 114 Cal.Rptr. 380, 386 (1974). "In other words, the usage must be of such a nature as to charge the landowner with constructive notice." Bruce Ely, supra, § 5:13. The Restatement offers the following reasoning:

The purpose of the requirement that the use be open or notorious is to give the owner of the servient estate ample opportunity to protect against the establishment of prescriptive rights. To satisfy this requirement, the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature, and extent. "Open" generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent. "Notorious" generally means that the use is actually known to the owner, or is widely known in the neighborhood. Although the terms are often stated conjunctively, the requirements are disjunctive. A use that is actually known to the owner of the servient estate satisfies the requirement even though it is not open. An openly visible and apparent use satisfies the requirement even if the neighbors have no actual knowledge of it. A use that is not open but is so widely known in the community that the owner should be aware of it also satisfies the requirement To meet the open-or-notorious requirement, a use must generally be substantial and reasonably definite so that the landowner should be aware that an adverse use is being made. Sporadic and casual uses are generally not open or notorious. . . . To be open a use must be made with sufficient frequency that the owner of the servient estate has a reasonable opportunity to become aware of it. Seasonal or intermittent use may be sufficient if consistent with the character or use of the dominant and servient estates or with the normal use that would be made of a servitude of the type claimed.

Restatement (Third) of Property (Servitudes), § 2.17

We hold that the "open and notorious" or "actually known" requirement is designed to give the owner of the land ample opportunity to protect against another person's actions to establish a prescriptive easement. To establish that an adverse use was "open and notorious," the person claiming a prescriptive easement must show that the wrongful use was visible and apparent, was not made stealthily or in secret, and was so conspicuous and obvious that a reasonable, prudent owner of land would have noticed. However, where the owner of the land had actual knowledge of the adverse use, the person claiming a prescriptive easement need not show that the use was open and notorious.

( 6) Identifying the line, width, starting and ending points, and use of the easement

Our law is clear that "[a] right of way acquired by prescription for one purpose cannot be broadened or diverted, and its character and extent are determined by the use made of it during the period of prescription." Syllabus Point 3, Monk v. Gillenwater, 141 W. Va. 27, 87 S.E.2d 537 (1955). "When an easement has been acquired by prescription, the extent of the right so acquired is measured and determined by the extent of the user out of which it originated." Syllabus Point 4, Foreman v. Greenburg, 88 W. Va. 376, 106 S.E. 876 (1921). "The precise location of an easement sought to be established should be described either by metes and bounds or in some other definite way." Syllabus Point 1, in part, Nutter v. Kerby, 120 W. Va. 532, 199 S.E. 455 (1938).

For an example of a prescriptive easement that could not be established because it could not be definitely described, see Sticklen v. Kittle, 168 W. Va. 147, 287 S.E.2d 148 (1981). In Sticklen, an airport sought a prescriptive "avigation" easement, which gives one a right to navigation in airspace over designated land. The Court found that "[v]arious practical problems would make such a prescriptive easement difficult to define," including problems arising from the types and number of overflying aircraft, and alterations to the flight paths of those aircraft that might involve adjacent properties. 168 W. Va. at 160, 287 S.E.2d at 155. The Court therefore concluded, in Syllabus Point 1, that "[a]n avigation easement in the airspace used by aircraft over lands adjacent to an airport cannot be acquired by prescription."

In other words, "[t]he use of the land defines the parameters of the easement." Wheeling Stamping v. Warwood Land, 186 W. Va. 255, 258, 412 S.E.2d 253, 256 (1991). The scope of the right acquired by prescription "will be commensurate with and measured by the use" that originally gave rise to the easement. Shock v. Holt Lumber Co., 107 W. Va. 259, 262, 148 S.E. 73, 74 (1929).

For example, in Crane v. Hayes, 187 W. Va. 198, 417 S.E.2d 117 (1992) ( per curiam), a roadway was built across the defendants' land in the 1920s as a logging road. It was occasionally used by the plaintiffs (and their predecessors) for agricultural purposes after the 1930s, and to occasionally gather firewood or to check fences. In 1980, the plaintiffs began clearing and upgrading the road on the defendants' land, and used the road as an access to build two houses on their property. When the defendants realized the plaintiff intended to use the road across their land as an access for the new houses, the defendants blocked the road. We concluded that the plaintiffs had a prescriptive easement, but only for agricultural uses, gathering of firewood, and checking fences. The plaintiffs were "not entitled to increase the burden on the land to encompass travel for residential purposes." 187 W. Va. at 201, 417 S.E.2d at 120.

The manner in which a prescriptive easement may be used is defined by the manner in which the easement was used historically. "The character and purpose of the easement acquired by prescription are determined by the use made of it during the prescriptive period." Syllabus Point 3, Burns v. Goff, 164 W. Va. 301, 262 S.E.2d 772 (1980) ( per curiam). The entire history of the claimant's usage of the way over which an easement is sought must be evaluated to determine the character and scope of the prescriptive easement. See Clain-Stefanelli v. Thompson, 199 W. Va. 590, 595, 486 S.E.2d 330, 335 (1997).

History proves there are many different reasons for individuals to seek an easement. For instance, in Pem'ne v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 498, 694 S.E.2d 815, 831 (2010), we noted how a smelting plant obtained express easements From neighboring property owners for the perpetual right to discharge "solids, liquids, smokes, dust, precipitates, gases, fumes, vapors and other matters" "over and onto" the neighboring properties. "[A]n easement allows a person to engage in activities on another's land that, in the absence of the easement, would be a nuisance." Quintain Dev., LLC v. Columbia Nat. Res., Inc., 210 W. Va. 128, 135, 556 S.E.2d 95, 102 (2001).

We hold that a person claiming a prescriptive easement must prove the reasonably precise location of the starting and ending points of the land that was used adversely, the line that the use followed across the land, and the width of the land that was adversely used. Furthermore, the manner or purpose in which the person adversely used the land must be established. This is because a right of way acquired by a prescriptive easement cannot be broadened, diverted or moved; its purpose and location are determined solely by the adverse use made of the land during the ten-year prescriptive period.

B. The Lack of Evidence at Trial of a Prescriptive Easement

We now turn to the assertion by the defendants, Robert and Virginia Stegall, that plaintiff Michael O'Dell failed to establish a prescriptive easement.

As we have previously related, the plaintiff introduced the testimony of several individuals who stated that the front part of the gravel lane had, for many decades prior to 1999, been regularly used by churchgoers approximately twice a week to access a parking lot at the rear of the church. The plaintiffs expert said that he did not think the plaintiff had a prescriptive easement. Instead, the expert said it was his opinion that when Isaac Strider deeded the four lots bordering the gravel lane to others, between 1893 and 1911, Mr. Strider must have intended for the owners of the four lots to have a right to use the gravel road for ingress and egress. This was pure speculation. Yet, on the basis of this testimony, the jury concluded that the plaintiff had a prescriptive easement.

The plaintiff bore the burden of proving, by clear and convincing evidence, that he (or his predecessors in title) (1) adversely used the gravel lane against the interests of its owner; (2) that the adverse use was continuous and uninterrupted for at least ten years; (3) that the adverse use was known to the owner, or open, notorious and visible; and (4), the precise line, width, starting and ending points, and use for which the easement was sought. After carefully scrutinizing the evidence and testimony produced at trial, we think it is clear that there is insufficient evidence to support the jury's verdict.

First and foremost, the plaintiff failed to show that his use of the gravel lane was adverse, that is, that it was wrongful and made without the express or implied permission of the rightful owner of the land. In part, this is because the plaintiff wholly failed to show that the defendants owned the land upon which the gravel lane rests. "The essence of an adverse use is that such use be made of the land of another." Keller v. Hartman, 175 W. Va. 418, 424, 333 S.E.2d 89, 95 (1985). Without question, the owner of the alleged servient estate is an indispensable party to a lawsuit to establish an easement across that estate.

The 1899 deed of the third lot (now owned by Ms. Seibert) clearly identifies the gravel lane as being owned by "I.H. Strider," and the deed conveyed a right to use the gravel lane "for ingress and egress 25 ft. wide running from the said lot through the land of I.H. Strider[.]" At no point did the plaintiff ever identify for the jury the current successor to Mr. Strider, or otherwise suggest who the current owner of the gravel lane might be. When plaintiffs counsel was asked at oral argument before this Court, he conceded that none of the parties knows who owns the gravel roadway. We therefore believe that the plaintiff failed to prove any use of the gravel lane was adverse to the owner of the servient estate over which the alleged prescriptive easement crosses.

While the record does not suggest who currently owns the land upon which the gravel lane sits, it does appear that the dismissed defendants Donald and Patricia Walker are the current successors to Mr. Strider, in that they now own what appears to be the remainder of Mr. Strider's 23-acre tract. Therefore, they may also own the servient estate. However, the Walkers have settled with the plaintiff. The settlement agreement stated that they have no interest in the gravel lane. The plaintiff's action against the Walkers has been dismissed with prejudice — and, accordingly, any suit by the plaintiff (or his successors) against the Walkers (or their successors) to establish ownership of the gravel lane would likely be barred by principles of res judicata or issue preclusion ( i.e., collateral estoppel).

Furthermore, the plaintiff failed to show that the prior use of the gravel lane, by himself and his predecessors, was in any way wrongful toward, or without the express or implied permission of, the owner of the servient estate. The plaintiff was required to prove that his actions (and the actions of his predecessors) amounted to trespassing, and that the owner — whoever it might be — would have wanted to prevent the plaintiffs use, or the churchgoers' use, by resorting to the law. We can conceive that when Mr. Strider deeded the plaintiffs lot to the German Baptist Brethren Church in 1898, he gave implicit or explicit permission for churchgoers to use the lane. Nothing in the record suggests that the churchgoers' use of the gravel lane was anything more than a neighborly accommodation by the owner of the gravel lane.

Another potential problem with the plaintiff's theory "is that use of a right of way in common with the public is regarded as negativing a presumption of grant to any individual user." Town of Paden City v. Felton, 136 W. Va. at 137, 66 S.E.2d at 287. Cases from other jurisdictions support the notion that "the general public use of a right-of-way may raise a presumption that the use is permissive." Bruce Ely, supra, § 5:9. This "public use exception" is generally stated this way:

Where . . . the same degree of use upon which the adverse claim is based has been exercised indiscriminately by the general public, individual acquisition of a prescriptive easement has generally been held impossible. In such a case, the claimant must perform some act whereby the adverse nature of the claim is clearly indicated to the owner of the servient estate.

Hall v. Strawn, 108 Idaho 111, 112-13, 697 P.2d 451, 452-53 (Ct.App. 1985).

Second, the plaintiff was required to establish that the adverse use was continuous and uninterrupted for at least ten years. The record supports the plaintiffs claim that he and his predecessor's use of the gravel lane was uninterrupted for a ten year period, in the sense that there is no evidence to indicate that the owner of the gravel lane ever asserted control of the lane or that the use of the lane was discontinued. However, again, there is no evidence to support the plaintiffs claim that use was continuous, because there was no evidence that the churchgoers' use of the lane was adverse for a ten-year period, and no evidence that they believed they were using the gravel lane without the owner's permission (or otherwise in subordination to the owner). Nevertheless, if the owner of the servient estate is not identified at trial, then the adverse use cannot be proven.

Third, the plaintiff was required to establish that the adverse use was actually known to the owner, or so open, notorious and visible that a reasonable owner would have recognized the adverse use. The plaintiff could not establish actual knowledge of the owner without first identifying the owner. And while the plaintiff may have established a use that was so open, notorious and visible that any reasonable owner of the land would have had ample opportunity to protect against the creation of a prescriptive easement, because the plaintiff never established that the use was adverse, his claim must fail.

Fourth and finally, we cannot say that the plaintiff introduced clear evidence of the precise location of the land that was adversely used. The plaintiff also did not introduce clear evidence that the use for which he sought the easement was similar to the alleged adverse use during the prescriptive period. The plaintiff introduced evidence that churchgoers used the gravel lane approximately twice a week to access a parking lot at the rear of the building — a parking lot that apparently no longer exists. The plaintiff sought a prescriptive easement to use the gravel lane daily to access the side of the building. The plaintiff bore the burden of proving how his proposed daily use of the gravel lane was reasonably similar to the churchgoers' twice-a-week use of the lane. Likewise, the plaintiff bore the burden of showing how his proposed access to the side of the building was reasonably similar to the churchgoers' use of the lane to access the parking lot that used to be at the rear of the building. The plaintiff would only have been entitled to use the gravel lane for the purposes encompassed within the original ten-year prescriptive period; he was not entitled to increase the burden on the servient estate.

In sum, we conclude that the plaintiff failed to establish, by clear and convincing evidence, that a prescriptive easement was created to use the gravel lane to access a horseshoe driveway at the north side of his home for routine ingress and egress.

C.

Remaining Claims against the Defendants

At trial, a jury awarded the plaintiff damages against the defendants in the amounts of $5,300 in compensatory damages, and $4,700 in punitive damages. These damages were based on: (1) the jury's determination that the defendants had intentionally interfered with the plaintiffs prescriptive easement; (2) for the tort of outrage and invasion of the plaintiffs right of privacy, because the defendants had photographed the plaintiff using the gravel lane and tape recorded a conversation between the plaintiff and one of the defendants; and (3) civil conspiracy.

After careful examination of the record, we find no evidence proving the legal elements of these causes of action.

First, the jury concluded that the defendants had intentionally interfered with the plaintiffs prescriptive easement allowing his ingress and egress on the gravel lane. As we just established, the plaintiff has no legal right of ingress and egress. Accordingly, to the extent the jury's award is based on this claim by the plaintiff, it must be vacated.

We acknowledge that Ms. Seibert settled with the plaintiff, and gave the plaintiff a "quitclaim deed of easement" that purports to give the plaintiff some sort of an easement to use the gravel lane. Since there is nothing in the record to suggest that Ms. Seibert owned the servient estate (that is, the land upon which the gravel lane passes), she had no right to grant anyone an express easement to use it.
Furthermore, the record establishes that Ms. Seibert only owns an easement that is appurtenant to the third lot, an easement which expressly gives her a right to use the gravel lane for ingress to and egress from her lot. It is well established in other jurisdictions that an easement appurtenant adheres to the dominant estate. An easement appurtenant cannot exist apart from the dominant estate, and can be transferred only by transfer of the dominant property. Bruce Ely, Law of Easements and Licenses in Land, §§ 9:1 and 9:2.
For what it is worth, the quitclaim deed from Ms. Seibert might as well as have included a grant of ownership to the Brooklyn Bridge.

Second, the jury concluded that the defendants had engaged in outrageous conduct, and had invaded the plaintiffs pri vacy. We set forth the elements of a cause of action for the tort of outrage — more often referred to as the intentional or reckless infliction of emotional distress — in Syllabus Point 3 of Travis v. Alcon Laboratories, Inc., 202 W. Va. 369, 504 S.E.2d 419 (1998), where we stated:

In order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress, four elements must be established. It must be shown: (1) that the defendant's conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct; (3) that the actions of the defendant caused the plaintiff to suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.

We stated in Travis that trial courts should first examine the proof presented by the plaintiff to determine if the defendant's conduct may legally be considered "extreme and outrageous." We held, in Syllabus Point 4 of Travis:

In evaluating a defendant's conduct in an intentional or reckless infliction of emotional distress claim, the role of the trial court is to first determine whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination.

We first recognized a "right of privacy" in Roach v. Harper, 143 W. Va. 869, 105 S.E.2d 564 (1958). We stated, in Syllabus Point 1 of Roach:

The right of privacy, including the right of an individual to be let alone and to keep secret his private communications, conversations and affairs, is a right the unwarranted invasion or violation of which gives rise to a common law right of action for damages.

We have said that there are at least four ways that the right to privacy may be invaded:

An "invasion of privacy" includes (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another's name or likeness; (3) unreasonable publicity given to another's private life; and (4) publicity that unreasonably places another in a false light before the public.

Syllabus Point 8, Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1984). The plaintiff appears to assert that the defendants unreasonably intruded upon his seclusion, by the defendants (a) taking his photograph as he drove on the gravel lane, and (b) surreptitiously tape recording a conversation one of the defendants had with the plaintiff while standing on the lane.

After careful examination of the record, we see no evidence of emotional distress by the plaintiff that "was so severe no reasonable person could be expected to endure it." Syllabus Point 3, Travis, supra. We find no evidence to support the conclusion that the defendants' actions, as a matter of law, were so extreme and outrageous as to constitute intentional infliction of emotional distress.

Likewise, we see no evidence that the plaintiffs right "to be let alone and to keep secret his private communications" was in any way breached by the defendants. The plaintiff had no right to privacy — that is, no right to not have his car photographed — while driving in a public place. Further, the defendants did not record a secret, private communication; they recorded a public communication, between the plaintiff and one of the defendants, held in an open place.

The actions of the defendant do not appear to be illegal or tortious under the West Virginia Wiretapping and Electronic Surveillance Act. The Act says that if one of the parties to a communication consents to the interception or recording of the communication, and the purpose of the interception does not otherwise constitute a criminal or tortious act, then the interception is permitted by the Act. The Act, W. Va. Code. 62-lD-3(e) [2007], states:

It is lawful under this article for a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or the constitution or laws of this state.

The defendants' actions, while perhaps indignant and annoying, were not undertaken or expected to cause severe emotional distress to the plaintiff. The plaintiffs evidence does not show that the defendants' actions intentionally or recklessly inflicted emotional distress on the plaintiff.

Instead, the defendants were correct in their belief that the plaintiff did not have a legal right to use the gravel lane. While the defendants do not own the gravel lane, the evidence presented demonstrates that the defendants have an easement to use the lane to access the Leetown Pike/Route 15 that is implied, either by necessity or by prior use of the lane. In Cobb v. Daugherty, 225 W. Va. 435, 693 S.E.2d 800 (2010), we defined an easement implied by necessity in Syllabus Point 4:

To establish an easement implied by necessity (which in West Virginia is called a "way of necessity"), a party must prove four elements: (1) prior common ownership of the dominant and servient estates; (2) severance (that is, a conveyance of the dominant and/or servient estates to another); (3) at the time of the severance, the easement was strictly necessary for the benefit of either the parcel transferred or the parcel retained; and (4) a continuing necessity for an easement.

In Syllabus Point 6 of Cobb, we defined an easement implied by a prior use of the land:

To establish an easement implied by a prior use of the land, a party must prove four elements: (1) prior common ownership of the dominant and servient estates; (2) severance (that is, a conveyance of the dominant and/or servient estates to another); (3) the use giving rise to the asserted easement was in existence at the time of the conveyance dividing the property, and the use has been so long continued and so obvious as to show that the parties to the conveyance intended and meant for the use to be permanent; and (4) the easement was necessary at the time of the severance for the proper and reasonable enjoyment of the dominant estate.

The record establishes a prior common ownership of the defendants' lot and Mr. Strider's 23-acre tract, as well as a severance in 1911. On the one hand, at the time the defendants' lot was created, it was strictly necessary, and continues to be necessary, for the defendants to be able to use the gravel lane to access a public highway. Hence, the defendants have an easement implied by necessity. On the other hand, in 1911, the gravel lane had clearly and obviously been in existence (as was evidenced by the 1899 deed of the third lot that gave the owner an express easement), the 1911 deed referred to the lane as a "lane to public road," and the lane was necessary in 1911 for the reasonable enjoyment of the defendants' lot. Hence, the defendants can also establish an easement implied by a prior use of the gravel lane to access their lot.

The defendants were apparently acting out of their sincere belief that the plaintiff was wrongfully using the gravel lane, and that the plaintiffs use of the lane would cause wear and tear that the defendants would be contractually obligated to repair. On this record, we believe that the trial court should, as a matter of law, have entered judgment for the defendants on the counts of outrage and invasion of privacy.

The final count alleged by the plaintiff is that the defendants were engaged in a civil conspiracy. We recently set forth the definition of a civil conspiracy in Syllabus Points 8 and 9 of Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009):

8. A civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful means. The cause of action is not created by the conspiracy but by the wrongful acts done by the defendants to the injury of the plaintiff.

9. A civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal doctrine under which liability for a tort may be imposed on people who did not actually commit a tort themselves but who shared a common plan for its commission with the actual perpetrator(s).

We made clear in Dunn v. Rockwell that a civil conspiracy must be based on some underlying tort or wrong. As we have discussed above, for all of the torts or wrongs alleged by the plaintiff (interference with the plaintiffs prescriptive easement, outrage, and invasion of privacy) there is insufficient evidence to support the jury's verdict. Accordingly, we find that there is also insufficient evidence to support the jury's finding that the defendants engaged in a civil conspiracy to commit any of those alleged torts or wrongs.

IV. Conclusion

After careful consideration of the record and the arguments of the parties, we find that the plaintiff failed to establish a right to an easement by prescription to use the gravel lane, and failed to prove the necessary elements of the other causes of action. Thus, we believe that the circuit court should have granted judgment to the defendants.

Accordingly, the jury's verdict must be reversed, and the case remanded for entry of judgment in favor of the defendants.

Reversed and remanded.