Geoex, Inc. v. Williamson Mining and Manufacturing Company

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
GEOEX, INC.,
April 29, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Defendant Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-200 (Cir. Ct. of Mingo Cnty. Case No. CC-30-2020-C-103)

WILLIAMSON MINING AND MANUFACTURING COMPANY,
Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioner Geoex, Inc. (“Geoex”) appeals two orders from the Circuit Court of
Mingo County. The first is a bench trial order dated February 27, 2024, resolving a
boundary line dispute and quieting title in favor of respondent Williamson Mining and
Manufacturing Co. (“WMM”). The second is an order dated April 16, 2024, denying
Geoex’s motion to alter, amend, or vacate the February 27, 2024, order. WMM filed a
response.1 Geoex 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 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 centers on adjacent properties, one tract is owned by WMM (“WMM
Property”) and the other tract is owned by a group of individuals known as the “Stepp
Heirs” (“Stepp Property”). These tracts previously comprised the site of the former Mingo
County Airport between 1965 and 2017. This appeal consists of two actions consolidated
by the circuit court: a 2020 action to quiet title filed by WMM against the Stepp Heirs, and
a 2021 trespass action filed by Geoex, as a tenant of the Stepp Heirs, against Solwind
Energy, LLC, a tenant of WMM. According to the circuit court’s order, the facts of the
case are as follows.

The WMM Property and the Stepp Property are comprised of lands which were
contested in an ejection action filed in 1912 (“1912 Action”). In the 1912 Action, WMM
brought suit against Winifrede White Ash Coal Co., among others, who are predecessors
in title to the Stepp Heirs. The issue in the 1912 Action was the boundary line between the

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Geoex is represented by Eldred E. Adams, Jr., Esq., and William T. Watson, Esq.
WMM is represented by Ralph J. Hagy, Esq., and Bradley D. Dunkle, Esq.
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adjoining lands. A survey was performed by A.A. Gaujot, P.E., (“Gaujot Survey”) and
completed on December 2, 1912, with the descriptions and calls submitted to the circuit
court. On February 26, 1913, the circuit court entered a judgment order in the ejectment
action, which found that WMM owned a disputed parcel of land containing 28.78 acres.

This 28.78-acre parcel was included among approximately 92.7 acres which WMM
conveyed by deed to the Mingo County Airport Authority2 (“WMM Airport Deed”) on
December 13, 1965. This Airport Deed contained the following reversionary clause:

It is covenanted and agreed between the parties hereto that the land herein
conveyed is to be used solely for the construction and maintenance of an
airport facility to be owned and operated by grantee, or its lawful successors
or assigns, as a public airport facility. And the use of these lands for any other
purpose, without prior written consent of grantor, shall be deemed a breach
of the foregoing covenant, and the lands herein described shall revert
immediately to grantor, or its successors and assigns.

In its February 27, 2024, bench trial order, the circuit court found that pursuant to
the reversionary clause, WMM intended for all the property it conveyed in the WMM
Airport Deed to revert back to WMM in the event the land was no longer used as a public
airport facility, and that the land would revert to its pre-airport condition. Similarly, on
December 12, 1967, approximately 58.4 acres of the Stepp Property was conveyed by deed
to the Mingo County Airport Authority (“Stepp Airport Deed”). This Deed contained a
similar reversionary clause.

By Confirmatory Deed dated September 28, 2017, the Mingo County Airport
Authority returned the WMM Airport Deed property to WMM. While no deed was
executed conveying the Stepp Airport Deed property back to the Stepp Heirs, the circuit
court found that by virtue of the reversionary clause, the subject 58.4 acres reverted to the
Stepp Heirs once the property ceased being used as an airport.

In 2019, the Stepp Heirs retained surveyor Kenneth D. Bias to conduct a survey of
the 58.4 acres previously conveyed under the Stepp Airport Deed. This resulted in a survey
dated September 27, 2019 (“Bias Survey”). Following completion of the survey, it was the
opinion of Mr. Bias, the Stepp Heirs, and Geoex, that WMM and its tenant Solwind Energy
were encroaching upon the Stepp Property.

By letter dated February 10, 2020, the Stepp Heirs requested that Solwind Energy
cease and desist all activity on the Stepp Property. In response, WMM retained surveyor

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As reflected in the deeds of record, the Mingo County Airport Authority was
formerly known as the Mingo County Airport Commission. For consistency, the entity will
be referred to by its Authority designation.
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Roger Tackett. Mr. Tackett surveyed the property around May 14, 2020. According to Mr.
Tackett’s notes, survey report, and prepared map, a portion of the lines relied upon by Mr.
Bias were in conflict with WMM’s Confirmatory Deed. This discrepancy resulted in the
Stepp Property boundary encroaching onto the WMM Property. However, because Mr.
Bias was deceased, Mr. Tackett was unable to discuss the discrepancies with him.

WMM filed their action to quiet title in 2020 on the basis that the Stepp Heirs
recorded an unfounded claim to certain property owned by WMM based upon the Bias
Survey. An amended complaint was filed on April 14, 2021, wherein WMM sought to
quiet title and pursue a slander of title claim. Thereafter, WMM entered into quitclaim
deeds with thirty-eight of the Stepp Heirs who relinquished their interest in the disputed
portion of property.

Geoex filed its complaint against Solwind in 2021. The complaint alleged that
Solwind had trespassed upon Geoex’s Stepp Heirs leasehold by “erecting structures and
power lines upon the property and otherwise obstructing Geoex’s free and unrestricted
access to its leases.” Geoex claimed damages from the trespass that prohibited it from
drilling two planned oil and gas wells on the Stepp Property, resulting in projected lost
profits of $2,000,000 per well. Alternatively, Geoex sought a permanent injunction against
Solwind for the removal of all obstructions which interfered with Geoex’s access to its
leasehold.

The cases were consolidated, a bench trial was held on January 3, 2024, and the
parties presented evidence and testimony from multiple witnesses. The resulting bench trial
order placed considerable emphasis on the testimony of two surveyors, Mr. Tackett and
Lantz Rankin.

Of particular note, Mr. Tackett testified that the property lines between the Stepp
Property and WMM Property were previously established by the 1912 Action and that he
relied upon the Gaujot Survey to retrace the property lines in preparation of his survey for
WMM. Mr. Tackett indicated that several of the natural monuments described in the Gaujot
Survey still existed and were used as a basis to retrace the boundary lines as determined in
1912. Through his survey, Mr. Tackett determined that there were errors in both the Airport
Deeds and Bias Survey, and he testified extensively regarding the steps he took to reconcile
the errors. Ultimately, it was Mr. Tackett’s professional opinion that the common boundary
between the Stepp Property and the WMM Property occurred about 350 feet earlier than it
was represented in either of the Airport Deeds and that the property boundary was
incorrectly located on the Bias Survey. Mr. Tackett opined that this discrepancy yielded
approximately 5.6 acres to the WMM Property.

Mr. Rankin testified on behalf of the Stepp Heirs. He testified that Mr. Tackett’s
testimony and Tackett Survey offered a reasonable opinion as to the errors and true

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boundaries for the property. He further indicated that Mr. Tackett took reasonable steps to
adjust the boundaries to correct the errors.

The circuit court’s February 27, 2024, bench trial order found that the Tackett
Survey was the most reasonable and accurate reflection of the disputed property boundary
lines. As such, the circuit court adopted the same and found that WMM’s title was clouded
by the errors in the Airport Deeds and Bias Survey. The circuit court also concluded that
because the WMM Property and Stepp Property were controlled by the Mingo County
Airport Authority from 1965 to 2017 through deeds that contained reversionary clauses
and error, the Stepp Heirs could not raise an estoppel claim against WMM. It found there
was insufficient evidence to show that Geoex knew the Bias Survey to be false or acted in
reckless disregard for its truth or falsity. The court additionally determined that neither the
non-settling Stepp Heirs, Geoex, nor Solwind were bound by the quitclaim deed
settlements between WMM and the settling Stepp Heirs.

Thereafter, the circuit court removed the cloud from WMM’s title and denied
WMM’s slander of title claim. On April 16, 2024, the circuit court denied Geoex’s motion
to alter or amend the February 27, 2024, bench trial order. In denying the motion, it was
specifically noted that Geoex’s “claim for adverse possession could not be adverse as the
Mingo County Airport Authority was in the exclusive possession of all real estate that is
the subject of [Geoex’s] leasehold.” This appeal followed.

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, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d
538 (1996).

On appeal, Geoex raises three assignments of error. Geoex claims that the circuit
court ignored the testimony of Mr. Rankin, did not sufficiently consider the law regarding
the practical location of property boundaries, and that the Tackett Survey improperly added
or shortened calls in the Airport Deeds. However, we find each of these contentions without
merit.

To begin, Geoex’s brief contains no argument addressing its third assignment of
error regarding the Tackett Survey improperly adding or shortening calls within the Airport

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Deeds. We deem this argument to be waived, and it will not be considered.3 See Syl. Pt. 6,
Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981) (“[a]ssignments of error that are
not argued in the briefs on appeal may be deemed by this Court to be waived.”); W. Va. R.
App. P. 10(c)(7) (stating that this Court “may disregard errors that are not adequately
supported by specific references to the record on appeal.”).

As to the remaining assignments of error, Geoex simply offers the all-encompassing
assertion that the Airport Deeds properly established the boundaries between the Stepp
Property and the WMM Property. However, Geoex fails to develop its argument on this
issue on appeal. Instead, Geoex relies upon principles from two separate legal
encyclopedias which recognize establishing boundaries through the doctrine of practical
location. However, this doctrine has not been codified by our Legislature, nor has it been
adopted through a decision of the Supreme Court Appeals of West Virginia. Geoex’s brief
concedes this point.

We also are unpersuaded by Geoex’s reliance upon Reger v. McAllister, 70 W. Va.
52, 73 S.E. 48 (1911). Here, Geoex fails to establish how Reger applies to the present case,
let alone offer any argument or citation to the record which analyzes the facts of this case
in that regard. In other words, Geoex has failed to establish how application of Reger
correlates into cognizable error in this appeal. See State v. LaRock, 196 W. Va. 294, 302,
470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs in determining issues
presented for review, issues which are not raised, and those mentioned only in passing but
are not supported with pertinent authority, are not considered on appeal.”); W. Va. R. App.
P. 10(c)(7).

In West Virginia, it is well established that:

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We also find that the argument section of Geoex’s brief contains new argument
headings and arguments. Specifically, Geoex contends: (1) That it is not bound by the
WMM and Stepp Heirs settlements; and (2) The Airport Deeds properly establish the
boundary between the WMM and Stepp Properties. This fails to conform with our Rules
of Appellate Procedure. Particularly, Rule 10(c)(7) requires that briefs “contain an
argument clearly exhibiting the points of fact and law presented, the standard of review
applicable, and citing the authorities relied on, under headings that correspond with the
assignments of error.” This Rule also permits this Court to disregard arguments that fail to
meet these standards on appeal. Id. Thus, we decline to consider Geoex’s argument
regarding the settlement agreements because it was not encompassed by Geoex’s stated
assignments of error. However, we reluctantly treat Geoex’s remaining argument that the
Airport Deeds correctly establish the boundary line as a consolidated restatement of its
remaining assignments of error and will address the same.

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An appellant must carry the burden of showing error in the judgment of
which he complains. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be
presumed, all presumptions being in favor of the correctness of the judgment.

Syl. Pt. 5, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966). In this appeal, Geoex
has simply failed to offer any argument which affirmatively establishes error by the circuit
court. Therefore, we cannot conclude the circuit court’s factual findings are clearly
erroneous or that its ultimate disposition of this case is an abuse of discretion.

Accordingly, we affirm the circuit court’s February 27, 2024, and April 16, 2024,
orders.

Affirmed.

ISSUED: April 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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