West Virginia Easement and Eminent Domain Laws (2026)

In West Virginia, a prescriptive easement takes at least ten years of adverse, continuous and open use, and the Supreme Court of Appeals held in O'Dell v. Stegall (2010) that every element must be proved by clear and convincing evidence, with no presumption that long use was adverse. On eminent domain, a 2006 amendment to W. Va. Code 54-1-2(a)(11) provides that, for purposes of the State's general taking power in that subdivision, "public use" does not mean a taking primarily for private economic development.

West Virginia's eminent domain chapter contains no procedure for a landlocked owner to condemn a private way across a neighbor's land; access usually turns on easements the courts imply, chiefly the easement by necessity, which requires strict necessity, or an easement implied from a use that existed when the land was divided. This page covers private easements first and condemnation second. For other states, see our guide to easement laws by state.

Information last verified on 2026-10-20. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers West Virginia law on private easements (the ten-year period in W. Va. Code 55-2-1, the Supreme Court of Appeals decisions in O'Dell v. Stegall and Cobb v. Daugherty) and on condemnation of private property (W. Va. Const. art. III, sec. 9 and W. Va. Code chapter 54, articles 1 to 3). It does not cover adverse possession of title (see West Virginia squatters' rights and adverse possession), homeowner association covenants, zoning or regulatory takings, federal condemnation, or county and municipal ordinances.

How Long Does a Prescriptive Easement Take in West Virginia?

A prescriptive easement is a right to keep using a path, road or strip of someone else's land, acquired by long use rather than by a deed. In West Virginia the period is at least ten years, and the elements come from case law. In O'Dell v. Stegall (2010), the Supreme Court of Appeals of West Virginia set them out:

"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."

The same opinion set the burden of proof: "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."

The ten years matches the general limitation on recovering land. W. Va. Code 55-2-1 provides that no person may 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."

Long use is not presumed adverse

O'Dell changed an older line of cases. The court wrote: "To 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." The person claiming the easement carries the burden of proving that the use was adverse.

The court defined the term: "an 'adverse use' of land is a wrongful use, made without the express or implied permission of the owner of the land." It added that no prescriptive easement may be created "unless the person claiming the easement proves that the owner could have prevented the wrongful use by resorting to the law."

Mineral owners

Much West Virginia land has the minerals severed from the surface. W. Va. Code 55-2-1a provides that "ownership or possession of the surface after severance shall not be adverse to the interests of the owner or owners of such minerals and appurtenant rights."

Easements compared with adverse possession

A prescriptive easement gives a right of use, not ownership. A claim to title by adverse possession runs on the same ten-year limitation in W. Va. Code 55-2-1, and in Brown v. Gobble (1996) the Supreme Court of Appeals said "adverse possession be proved by a more stringent standard than a mere preponderance of the evidence." Our page on West Virginia squatters' rights and adverse possession covers title claims, and the West Virginia statute of limitations guide covers other filing deadlines.

How to Stop a Prescriptive Easement in West Virginia

West Virginia's limitation sections on land, W. Va. Code 55-2-1 and 55-2-1a, contain no procedure for posting a sign or recording a notice to stop a prescriptive easement. The tools the Supreme Court of Appeals has described turn on permission and on actually interrupting the use.

• Permission. In O'Dell, the court held: "A use of another's land that began as permissive will not become adverse unless the license (created by the granting of permission) is repudiated."
• Protests alone do not stop the clock. The court also held that "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."
• Actual interruption. The court explained that an 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," and held: "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."

Watch out: Under O'Dell, an unheeded objection to a neighbor's use, even in writing or with a threat to sue, does not interrupt the ten years; an act that actually makes the user stop, such as blocking the way or a successful lawsuit, does. The opinion ties an adverse use to one the owner "could have prevented the wrongful use by resorting to the law."

Landlocked Property and Easements by Necessity in West Virginia

West Virginia's eminent domain chapter (W. Va. Code chapter 54) contains no procedure for a landlocked owner to condemn a private way across a neighbor's land. The route the Supreme Court of Appeals has described is the common-law easement implied by necessity, and the standard is strict.

In Cobb v. Daugherty (2010), the court stated that a party must prove four elements: unity of ownership of the two parcels; severance of that ownership; "proof that, at the time of the severance, the easement was strictly necessary for the benefit of either the parcel transferred or the parcel retained"; and "a continuing necessity for an easement." The court explained:

"Mere convenience, or even reasonable necessity are insufficient. If there is an alternate route, even if more difficult or more expensive to use, then no easement is implied by necessity. An easement by necessity is implied only where any other route would be practicably or economically impossible."

Easements implied from a prior use

Cobb also described a second implied easement, based on a use that existed before land was divided. The party must prove prior common ownership of both parcels; severance; that the use "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 that the easement was necessary at the time of the severance for the proper and reasonable enjoyment of the benefited tract. This test asks for less than strict necessity, but it requires an obvious, long-continued use at the time of the division.

A narrower statutory rule covers land cut off by a condemnation. When a company that acquired land under chapter 54 obstructs the owner of the remaining tract from crossing it, and the crossing is essential for the proper use of the remaining land, W. Va. Code 54-1-7 requires the company to "permit the owner of the land to construct, maintain and use suitable crossings over the land so acquired."

How an Easement Ends in West Virginia

Nonuse alone does not end a prescriptive easement. In Strahin v. Lantz (1995), the Supreme Court of Appeals held that "abandonment of an easement by prescription is a question of intention that may be proved by nonuse combined with circumstances which evidence an intent to abandon the right," and that the party asserting the easement is gone must prove abandonment by clear and convincing evidence.

An easement by necessity lasts only as long as the need. In Cobb v. Daugherty, the court said such an easement "will continue to exist only so long as the underlying necessity exists," while an easement implied by a prior use of the land "is permanent and must only be proven necessary at the time of severance."

Eminent Domain in West Virginia

Eminent domain is the power of the government, and of companies the legislature authorizes, to take private property for public use on paying just compensation. For how other states and federal law handle it, see our guide to eminent domain laws by state.

The West Virginia Constitution, article III, section 9, provides:

"Private property shall not be taken or damaged for public use, without just compensation; nor shall the same be taken by any company, incorporated for the purposes of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged for public use, or for the use of such corporation, the compensation to the owner shall be ascertained in such manner as may be prescribed by general law: Provided, That when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders."

Three points follow from the text. It covers property "damaged" as well as "taken." Internal improvement companies must pay, or secure payment, before taking. And either party may require that a jury of twelve freeholders decide compensation.

When the State's highway agency takes or damages land without starting a condemnation case (often called inverse condemnation), the Supreme Court of Appeals has said that "the state road commission, an agency of the state, may be required by mandamus to institute proceedings in eminent domain to ascertain just compensation for land taken or damaged for public purposes, including state highway purposes" (State ex rel. French v. State Road Commission, 1963).

At the federal level, the U.S. Supreme Court held in Kelo v. City of New London (2005) that takings under an economic development plan that served a public purpose satisfied the Fifth Amendment's public use requirement, and it stressed that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."

Who may condemn property in West Virginia

W. Va. Code 54-1-1 extends the power to the United States, the State, every corporate body politic created by the Constitution or statutes of the state, and every corporation organized under West Virginia law or authorized to do business in the state, for any purpose of internal improvement for which private property may be taken or damaged for public use as authorized in 54-1-2. A condemnor may acquire a fee simple or any lesser estate (W. Va. Code 54-1-8).

Can West Virginia Take Property for Private Development or a Pipeline?

After Kelo, the 2006 Legislature (House Bill 4048) amended W. Va. Code 54-1-2(a)(11), the State's general power to take property for public uses not specifically listed elsewhere in the section. The subdivision now reads in part:

"By the State of West Virginia for any and every other public use, object and purpose not herein specifically mentioned, but in no event may "public use", for the purposes of this subdivision, be construed to mean the exercise of eminent domain primarily for private economic development. For purposes of this subdivision, no private property may be taken by the State of West Virginia or its political subdivisions without the owner's consent when the primary purpose of the taking is economic development that will ultimately result in ownership or control of the property transferring to another private entity, other than one having the power of eminent domain, whether by purchase agreement, long-term lease agreement or any other mechanism whereby ownership or control is effectively transferred: Provided, That a municipal urban renewal authority may exercise a right of eminent domain as to property only within an area designated a slum area or blighted area under the provisions of article eighteen, chapter sixteen of this code."

The limits in that text matter:

• Both restrictions apply "for the purposes of this subdivision," meaning the State's general power in subdivision (11). The other subdivisions of 54-1-2 list specific purposes, such as pipelines, on their own terms.
• The bar reaches takings whose primary purpose is economic development. It does not apply when the property passes to a private entity that itself has the power of eminent domain.
• A municipal urban renewal authority may still condemn, but only within an area designated a slum or blighted area under chapter 16, article 18.

For slum and blight condemnations, W. Va. Code 54-1-2a requires the applicant, before starting the case, to "make a reasonable attempt to notify all parties subject to a petition for condemnation" and to attempt to negotiate a purchase, and it requires a good-faith purchase offer before the proceeding begins. Chapter 54 states this pre-suit offer duty only for slum and blight condemnations.

Pipelines and gas storage

W. Va. Code 54-1-2(a)(3) lists, among the purposes for which property may be taken, "constructing, maintaining and operating pipelines, plants, systems and storage facilities for manufacturing gas and for transporting petroleum oil, natural gas, manufactured gas," and underground storage in formations that have ceased to produce or are proved nonproductive of oil or gas in substantial quantities, "when for public use, the extent of the area to be acquired for such purpose to be determined by the court on the basis of reasonable need therefor."

Public use is contested in court. In Mountain Valley Pipeline, LLC v. McCurdy (2016), the Supreme Court of Appeals held that a company may enter private land to survey it under W. Va. Code 54-1-3 "only when that company is invested with the power of eminent domain," which requires that its purpose be a public use authorized by 54-1-2, and it affirmed a circuit court ruling, and an injunction against entry, based on the finding that the natural gas pipeline before it "is not being constructed for a public use in West Virginia." Even a company with that power may, before acquiring the right, enter only to examine and survey, without injury, and may not "throw open fences or enclosures on any land, or construct its works through or upon the same" without the owner's consent (54-1-3).

Coal pipelines under 54-1-2(a)(12) face an added condition: before any taking, the Public Service Commission, after a hearing on due notice, must find the pipeline required for the public convenience and necessity. A utility or company that needs a PSC certificate for a high-voltage transmission line must file a copy of it with its condemnation petition, and "Failure to file such certified or attested copy of such certificate shall result in dismissal of the petition" (W. Va. Code 54-2-2a).

A distance rule protects homes. Under W. Va. Code 54-1-5, no line transporting gas under pressure, petroleum oil or coal and its derivatives, and no tank for storing oil or natural gas, "shall be laid or constructed within one hundred feet of any occupied dwelling house, without the consent of the owner." The section does not apply within municipal corporations.

A separate rule covers railroads and other internal improvement companies: under W. Va. Code 54-1-4, they may not invade a dwelling house "or any space within sixty feet thereof, without the consent of the owner," unless necessary to pass through a narrow gorge or pass or to avoid undesirable curves, angles and grades. That rule does not apply within a municipal corporation, and it reaches only condemnation of rights of way for main lines and transmission lines.

How Condemnation Works in West Virginia: Procedure and Deadlines

West Virginia uses commissioners, with a jury on demand, to set compensation. The key steps in W. Va. Code chapter 54, article 2:

1. Notice. Owners, claimants and lienholders whose interests the applicant seeks to condemn must be served with ten days' notice of the application, which "may be given either before the petition is presented or afterwards" (W. Va. Code 54-2-3).
2. Commissioners' report. The commissioners ascertain "a just compensation to the person entitled thereto for so much thereof as is proposed to be taken, or for the interest therein, if less than a fee, and for damage to the residue of the tract beyond all benefits to be derived, in respect to such residue, from the work to be constructed" (W. Va. Code 54-2-9). In a partial taking, damage to the remaining land counts, offset by benefits the project brings to that land.
3. Jury demand within ten days. "Within ten days after the report ... is returned and filed, either party may file exceptions thereto, and demand that the question of the compensation, and any damages to be paid, be ascertained by a jury," in which case a jury of twelve freeholders is impaneled (W. Va. Code 54-2-10).
4. Payment and title. Within three months after the report, or the jury verdict, is approved by the court and ordered recorded, the applicant may pay into court the sum ascertained "with ten percent interest thereon from the date of the filing of the petition until payment," and on payment title vests in the applicant, except that for a public road only the right-of-way vests (W. Va. Code 54-2-12).

Watch out: The ten-day window in 54-2-10 runs from the return and filing of the commissioners' report, not from any later notice, and it is the stage at which either side may ask for a jury on compensation. If the verdict does not exceed the commissioners' figure, the owner who demanded the jury generally pays the costs the demand caused (W. Va. Code 54-2-16).

Immediate possession (quick-take)

When the applicant is the State or a political subdivision, and the court or judge is satisfied that the purpose is a public use, "the court or judge shall, at the request of the applicant, make an order permitting the applicant at once to enter upon, take possession, appropriate and use the land sought to be condemned" (W. Va. Code 54-2-14). Before it enters, the State must pay into court the sum it estimates to be the fair value of the property taken, including any damage to the remaining land beyond benefits, and no bond is required (W. Va. Code 54-2-14). Under the alternative method in 54-2-14a, title passes to the State when that deposit is made, but the title "shall be defeasible until the compensation and any damages are determined in the condemnation proceedings and the applicant has paid any excess amount into court," and the owners' interests and any liens transfer to the money in court. If the applicant enters, does work and injures the property, it is not entitled to abandon the proceeding without the owner's consent.

Other applicants have two routes. Under W. Va. Code 54-2-13, once the commissioners have reported, the applicant may enter and use the land on paying the reported sum into court with ten percent interest from the filing of the petition, even while exceptions or a jury trial are pending; an applicant that is not a corporate body politic must also post a bond the judge sets, and a court may not enjoin the entry unless the applicant is insolvent, is exceeding its authority, or the injury could not be adequately compensated in damages. Under 54-2-15, a business corporation with condemnation power may instead file a bond with its petition and take possession early; if the owner objects to the bond's form, amount or sureties, the court holds a hearing after five days' written notice and must be satisfied both with the bond and that the use is a public use before ordering possession. A corporation that enters and does work or damage under 54-2-15 may not abandon the case without the owner's consent and pays the final award with ten percent interest from the filing of the petition.

Withdrawing money paid into court

Under the alternative method for the State and its political subdivisions in W. Va. Code 54-2-14a, an owner may petition to be paid a pro rata share of the money paid into court, and "the acceptance of such payment shall not limit the amount to be allowed by the report of the condemnation commissioners, or the verdict of a jury." The risk runs the other way: if the money paid into court exceeds the final award, the persons who received it "shall reimburse the applicant, on a pro rata basis, but without interest."

Owner deadlines and traps in a West Virginia condemnation

• Entry after the report (54-2-13): a condemnor may enter on this route only after the commissioners report and it pays that sum plus ten percent interest into court; an applicant that is not a corporate body politic also posts a bond.
• Bond route (54-2-15): a business corporation may file a bond with its petition and take possession at that stage if the owner appears and makes no objection; an objection to the bond is heard after five days' written notice, and possession then requires the court's approval of the bond and a finding that the use is a public use.
• Quick-take deposit and title (54-2-14, 54-2-14a): the State deposits its own estimate before entry, and under 54-2-14a title passes on the deposit, defeasible until the final award and any excess are paid.
• Interest only on the excess (54-2-14a): interest at ten percent runs on the amount by which the award exceeds the deposit; "In no other instance shall interest be allowed on payments made pursuant to the provisions of this section."
• Jury-demand cost trap (54-2-16): an owner who demands a jury or has the report set aside, and gets no more than the former report, pays the costs that motion caused, unless the report was set aside on a ground other than insufficient compensation.
• Sixty days after a survey entry (54-1-3a): the State may enter after three days' notice to survey and test, and must compensate the owner for the use and pay actual damages; if they cannot agree, the owner may demand by certified or registered mail that it start a condemnation case, and if it has not done so within sixty days after receiving the demand, the owner may seek a writ of mandamus in the circuit court of the county.
• Public use decided before possession (54-2-14, 54-2-14a, 54-2-15): on the State's quick-take routes, the court or judge must be satisfied that the purpose is a public use before ordering possession; under 54-2-15, that finding is made at the bond hearing held when the owner objects, cannot be found or is under a disability, while an owner who appears and makes no objection to the bond lets the corporation take possession.

Just Compensation, Costs and Relocation in West Virginia

Compensation. The commissioners value the part taken (or the lesser interest taken) plus damage to the remaining tract beyond all benefits from the project (W. Va. Code 54-2-9). Chapter 54 contains no extra percentage above that value for homes. The sum ascertained generally carries ten percent interest from the date the petition was filed until it is paid into court (W. Va. Code 54-2-12); where the State has deposited its estimate under 54-2-14a, interest runs only on any amount by which the award exceeds the deposit. If the condemnor does not serve notice on the parties within ten days after paying money into court, interest at ten percent accrues until notice is served or the money is disbursed (W. Va. Code 54-2-18).

Costs. "Except as otherwise specially provided, all costs of a condemnation proceeding in the trial court shall be paid by the applicant," and on appeal costs go to "the party substantially prevailing" (W. Va. Code 54-2-16a). Several exceptions can shift costs to the owner. Under 54-2-14 and 54-2-14a, if the award does not exceed the sum paid into court, and that amount was tendered to the owner before the case began, the owner pays the trial-court costs "unless the refusal to accept the tender was based on some ground other than that of insufficiency of compensation and any damages." If an owner demands a jury or has the commissioners' report set aside, and the verdict or new report does not exceed the former report, the owner pays the costs that motion caused, unless the report was set aside on a ground other than inadequate compensation (W. Va. Code 54-2-16). And if the applicant stated in its application the sum it was ready to pay and the award does not exceed that sum, the applicant's costs for that parcel come out of the compensation (54-2-16). The court may also have the applicant pay, as costs, a limited guardian, attorney or guardian ad litem it appoints for an owner under a disability (W. Va. Code 54-2-4(f)).

Attorney fees. Chapter 54, articles 1 to 3, contains no provision awarding an owner attorney fees, and no provision requiring an appraisal to be shared or reimbursed. In the 2026 Regular Session, HB 4590 ("Awarding attorneys fees to prevailing party in eminent domain proceeding") and HB 4550 (to require the state to provide its appraisal to landowners) were introduced and referred to House committees in January 2026 and did not pass. Neither is law.

Repurchase. Chapter 54 contains no right for a former owner to buy back condemned land that goes unused.

Relocation. W. Va. Code 54-3-3 requires each acquiring agency to adopt rules implementing the federal relocation acts, so that displaced persons are compensated under those acts' policies, and its heading states that payments under the act are not considered income or resources for certain purposes. The federal payment amounts are covered in our eminent domain guide.

West Virginia Easement and Eminent Domain Rules at a Glance

Related West Virginia Property Guides

• Easement laws by state
• Eminent domain laws by state
• West Virginia squatters' rights and adverse possession
• West Virginia property records: how to find out who owns a property
• West Virginia statute of limitations

This article is general legal information about West Virginia easement and eminent domain law, not legal advice. Statutes and court decisions change, and how they apply depends on the facts. For a specific situation, contact a lawyer licensed in West Virginia.

Last updated: 2026-10-20.

Frequently Asked Questions

How long does it take to get a prescriptive easement in West Virginia?

At least ten years of adverse use that is continuous and uninterrupted, known to the owner or open enough that a reasonable owner would have noticed it, with an identified route, width and purpose. Each element must be proved by clear and convincing evidence (O'Dell v. Stegall, W. Va. 2010).

Is ten years of using a driveway automatically an easement in West Virginia?

The Supreme Court of Appeals overruled earlier cases suggesting that ten years of continuous use is presumed adverse, so the person claiming the easement must prove the use was adverse, meaning made without the owner's express or implied permission (O'Dell v. Stegall).

Can objecting to a neighbor's use stop a prescriptive easement in West Virginia?

Under O'Dell v. Stegall, mere unheeded requests, protests, objections, or threats of prosecution or litigation by a landowner are insufficient to interrupt an adverse use. An act that actually causes the user to stop, however briefly, such as physically blocking the way or a successful lawsuit, does interrupt it. A use that began with permission does not become adverse unless the permission is repudiated.

What if my land is landlocked in West Virginia?

The Supreme Court of Appeals recognizes an easement implied by necessity when the two parcels were once under common ownership, were severed, and access was strictly necessary at severance and still is. If any alternate route exists, even a more difficult or more expensive one, no easement by necessity is implied (Cobb v. Daugherty, 2010).

Can West Virginia take my property for a private developer?

W. Va. Code 54-1-2(a)(11), amended in 2006, says that for purposes of the State's general taking power in that subdivision, public use does not mean eminent domain primarily for private economic development, and it bars such takings without the owner's consent when control will pass to another private entity. Entities that themselves hold eminent domain power are excepted, and urban renewal authorities may condemn in designated slum or blighted areas.

Can a pipeline company use eminent domain in West Virginia?

W. Va. Code 54-1-2(a)(3) lists pipelines, plants, systems and storage facilities for oil and gas, when for public use, among the purposes for which property may be taken, and the circuit court decides whether the use is public. In Mountain Valley Pipeline v. McCurdy (2016), the Supreme Court of Appeals affirmed a ruling that a gas pipeline company could not enter land to survey because its pipeline was not being built for a public use in West Virginia. W. Va. Code 54-1-5 bars laying such a line or building an oil or gas storage tank within 100 feet of an occupied dwelling without the owner's consent, outside municipal corporations.

How long do I have to demand a jury in a West Virginia condemnation case?

Ten days after the commissioners' report is returned and filed. Within that time either party may file exceptions and demand that a jury of twelve freeholders decide compensation and damages (W. Va. Code 54-2-10). If the verdict does not exceed the commissioners' report, the owner who demanded the jury generally pays the costs the demand caused (54-2-16).

Does West Virginia pay attorney fees in eminent domain cases?

Chapter 54 of the West Virginia Code contains no provision awarding the owner attorney fees. It makes the applicant pay the trial-court costs except as otherwise specially provided (54-2-16a), though an owner can bear costs in some cases, such as a jury verdict no higher than the commissioners' report (54-2-16). A 2026 bill to award fees to the prevailing party (HB 4590) did not pass.

Can I take the deposit and still contest the amount in West Virginia?

Under the alternative method in W. Va. Code 54-2-14a, accepting a share of the money paid into court does not limit the amount the commissioners or a jury may award. If the final award is lower than the deposit, the people who received the money must repay the excess pro rata, without interest.