The question of whose land and/or minerals is whose in West Virginia is as old as the Appalachian Mountains. When it comes to natural gas titles and possession, one must take heed.
 
Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.
 
The general belief is that one co-owner cannot adversely claim the whole of a property against his co-owner or co-owners. However, there are exceptions in West Virginia. Several early decisions succinctly defined the co-tenant’s required conduct to successfully claim adversely to the interest of his co-tenant/co-tenants.
 
It has long been accepted that the possession of one co-owner is regarded as the possession of all the others.
 
In order to effect adverse possession, there must first be a disseisin, defined in Black's Law dictionary as the act of depriving someone of their freehold possession of property, or an ouster, defined in Black's Law dictionary as the disposition or exclusion of someone, especially a co-tenant, from property.
 
Some action or outward manifestation of intent to claim ownership exclusive of other co-tenants must be made in order to possess adversely.
 
A silent possession, accompanied with no act that can amount to an ouster or give notice to his co-owner that his possession is adverse, will not be construed into a disseisin or adverse possession.
 
If one joint owner shows by his acts or words that he means to hold out his co-tenants and actually exclude them, it is an ouster and his possession becomes adverse.
 
The outward manifestation of intent by the co-tenant claiming adversely must be such that the remaining co-tenant/tenants are knowledgeable and aware of the adverse claim.
 
An actual ouster of one tenant in common cannot be presumed, except where the possession has become tortious and wrongful by the disloyal acts of the co-tenant, which must be open, continued, and notorious, so as to preclude all doubt of the character of his holding or the want of knowledge thereof by his co-tenant. This conduct must amount to a clear, positive, and continued disclaimer and disavowal of his co-tenant's title, and an assertion of an adverse right, and knowledge of this must be brought home to his co-tenant.
 
Where one tenant in common occupies the common property notoriously as the sole owner, using it exclusively, improving it, and taking to his own use the rents and profits, or otherwise exercising over it such acts of ownership as manifest unequivocally an intention to ignore and repudiate any right in his co-owners, such occupation or acts and claim of sole ownership will amount to a disseisin of his co-owners, and his possession will be regarded as adverse from the time they have knowledge of such acts or occupation and claim of exclusive ownership. It is the intention of the tenant or co-owner in possession to hold the common property in severalty and exclusively as his own, with knowledge or notice to his co-tenants of such intention that constitutes the disseisin. The notice or knowledge required must be actual, as in the case of a disavowal or disclaimer of any right in his co-tenants, or the acts relied on, as in the case of expulsion making costly improvements and exercising exclusive ownership, must be of such an open, notorious character as to be notice of themselves.
 
The disseised co-tenant must know of such adverse claim and tortious acts. He is not bound to inquire, because he can repose in confidence of his co-tenant's good faith. That co-tenant must notify him of his adverse claim, or, at any rate, he must know of it.
 
The nature or character of the title or claim under which the occupying tenant asserts his ownership is entirely immaterial. It is the fact that he claims the property as his own and not the goodness of his title which makes his possession adverse. His claim may be founded on a defective or even a void deed or papers as well as upon a valid instrument, or it may be simply in pais without any paper or color of title and resting wholly upon a naked assertion of title or claim in himself accompanied by exclusive possession.
 
In the cases of ouster between co-tenants, the making of a deed or establishment of independent color of title is not necessary, and, as a rule, does not exist. The color of title, if any, in such a disseisor, is the deed or title under which both held prior to the act of ouster. 
 
The statute of limitations to bring an action to recover land in West Virginia is 10 years from the time when the right to bring such action arose. The co-owner who has been ousted or disseised must file an action within 10 years from the date of his ouster.
 
CO-OWNERS AND TAX SALES
 
The West Virginia Code provides in part,
 
§11A-3-49. Purchase by owner or deputy commissioner or other officers prohibited; co-owner free to purchase at sale.
 
(b) Any co-owner, except a coparcener, in the absence of satisfactory proof of a fiduciary relationship, shall be entitled to purchase at the sale for his own account the interest of any, or all, of his co-owners in any real estate, without being required to hold such interest or interests under a constructive trust. There shall be a prima facie presumption against such constructive trust.
 
Black’s law dictionary defines a co-owner a person who is in concurrent ownership, possession, and enjoyment of property with one or more others; a tenant in common, a joint tenant, or tenant by the entirety. A Coparcener is defined as a person to whom an estate descends jointly, and who holds it as an entire estate
 
In conclusion, when dealing with ownership and title questions, one should be careful not to dismiss a co-owners claim of full interest in what at first blush appears to be joint ownership. One co-owner may oust the other co-owners in West Virginia. His outward manifestation of ownership coupled with acquiescence by the remaining co-owners for a period of 10 years may ripen into adverse ownership.

If you have any questions about this issue, please contact us.