Opinion
No. 13742
Decided July 15, 1977.
Action was brought to eject occupant from property which she alleged she had occupied for 14 years and upon which she had constructed a $12,000 house.
J. M. Tully for appellants.
James H. Wolverton for appellees.
Plaintiffs sought to eject Maggie Summers Brown from property which she alleged she had occupied for fourteen years and upon which, with plaintiffs' acquiescence, she had constructed a $12,000 house. Maggie Summers Brown's answer raised the issue of whether plaintiffs, by their acquiescence, were estopped under the rule in Despard v. Despard, 53 W. Va. 443, 43 S.E. 448 (1903), from asserting their right to possession of the property.
Summary judgement cannot be granted in a case where a genuine issue of material fact is raised. Oakes v. Monongahela Power Co., ___ W. Va. ___, 207 S.E.2d 191 (1974). Since the question of whether or not plaintiffs were estopped was material to their right of recovery, and since Maggie Summers Brown raised questions of fact, which if proved, could possibly establish estoppel, the trial court erred in awarding summary judgment for plaintiffs and in denying Maggie Summers Brown an opportunity to introduce evidence on her allegations.
Reversed and remanded.