By Ken Bustin
What began as a land boundary and right-of-way dispute has resulted in a local man being arrested and charged with felony Destruction of Property by Hardy County Sheriff Steve Dawson, in what some see as a strong-arm tactic and an overreach of authority on the part of the Sheriff.
Tyler Borror was arrested by Sheriff Dawson on July 5 at his property at 9173 South Fork Road in Moorefield, on a Criminal Complaint signed by Magistrate Judge Shawna Crites on June 28. But the story really begins much earlier, in 2021, when Borror purchased the property, which is bounded on the south by property owned by Ward Malcolm and his brother Timothy, with whom the boundary and right-of-way dispute has developed, and on the East side by the west prong of the South Fork River.
The dispute centers around a long-disused waterway crossing by two bridges, and the question is whether Malcolm has a valid right-of-way across Borror’s property.[private]
The Prelude and Run-Up
Between the time that Borror first looked at the property in the Spring of 2021, and the time the sale closed and he took possession in the Fall, Malcolm rebuilt one of the two former bridges – both of which washed out in the 1985 flood and remained abandoned since then – dumping fill into the waterway in the process. He also began constructing a roadway across Borror’s property.
Soon after, disagreement erupted between the two over the construction of the roadway across the land and use of an alleged right-of-way to access the newly-rebuilt bridge. According to Borror, the first assertion Malcolm made was that he owned a portion of Borror’s property on the west side of the waterway. Since this assertion didn’t agree with his deed description, Borror hired L&W Enterprises to survey the property. Surveyor Curtis Keplinger’s work confirmed Borror’s deed: He owned to the river’s edge.
After the survey confirmed the boundaries of Borror’s property extended to the the river, Borror said he informed Malcolm and his employees that their use was unauthorized and that he wanted the roadway removed. Malcolm discontinued his assertion of ownership and then said he possessed a right-of-way, though Borror says he was never offered any substantiation of that claim.
The two men discussed and debated the issue on at least three occasions, Borror recalls. During one of those discussions, according to Borror, Malcolm inquired if Borror would grant him a right-of-way in exchange for compensation, a question Borror thinks clearly demonstrated Malcolm understood that he actually had no valid right-of-way. Borror says he countered Malcolm’s inquiry by suggesting Malcolm trade a piece of land for the right-of-way; Malcolm then dropped the inquiry completely.
During the period these discussions took place, Borror says Malcolm’s employees and family members continued to trespass on his property, and hauled and dumped additional fill on the alleged right-of-way across his land on a near-daily basis.
Eventually, frustrated by the continued encroachment, Borror called the West Virginia State Police. Trooper B. W. Thorn responded to the call, but told Borror that police had no ability to act in the matter, that it was clearly a civil dispute. Although Borror says Thorn was careful to clarify that he wasn’t offering legal advice, he said Thorn told him that a landowner is entitled to secure and protect his property, mentioning the possibility of rocks or a fence. Thorn left, but called later to tell Borror that he had also spoken with Malcolm. Malcolm’s employee, Dave Colette, subsequently confirmed this conversation, telling Borror that Thorn told Malcolm to stay off Borror’s property. Colette also subsequently placed a stop sign on Borror’s property, directly in front of the bridge, to prevent its use.
In an attempt to secure his property and prevent the daily trespasses by Malcolm’s employees, Borror finally placed a large rock in the roadway on his property, near the bridge entrance. Malcolm’s employees soon removed that rock. After several rounds of replacing the rocks and having them removed again, Borror says he found the rocks pushed into the waterway, apparently in an attempt to prevent him from retrieving and replacing them. Malcolm’s crew continued to haul and dump fill into the stream and on his land, Borror said.
On June 15, Malcolm and his attorney, Nathan Walters, and Borror’s surveyor Keplinger walked around Borror’s property, although Borror said they made no attempt to contact him. On the following day, in a conversation with Keplinger, Borror said the surveyor mentioned, for the first time, the potential existence of a right-of-way, though Keplinger made no attempt to substantiate the statement.
The following day, when Borror came to his property, he discovered an unfamiliar vehicle parked inside the fence on his land. Wondering if he might have discovered a burglary in progress, he parked his vehicle in his driveway at the fence line and proceeded to walk in toward his home. As he did so, he became aware of Malcolm’s daughter and son-in-law near the bridge at the edge of his property. Borror says they began screaming threats and obscenities at him from the edge of the property. He went to check on his house, and finding no sign of trouble, returned to his vehicle and drove away a few minutes later.
Soon after, Sheriff Steve Dawson and Captain Jon Baniak appeared and walked the property, leaving without making any contact with Borror, though Baniak returned later to talk to him. He said that he and Baniak had a very cordial conversation, during which the Deputy confirmed what Trooper Thorn had already suggested: that the dispute was a civil matter. Baniak left with no action taken.
Beginning about June 28, Sheriff’s Department vehicles began visiting the property twice a day, entering Borror’s land each time, but no one had contact with Borror. His security cameras recorded these visits.
The Arrest and Charges
On July 5, Borror was working at his property when Dawson and Sergeant Brad Short arrived. Borror had installed a new gate earlier that day, which Dawson and Short had to scale to gain entrance. Borror said Dawson approached the home and pounded on the door. When Borror asked if he could help him, he says Dawson told him very belligerently to come out, that he needed to talk to him. Borror said he told Dawson that his attitude put Borror in fear for his safety, and that he could talk to him without coming out, but eventually opened the inside door, leaving the screen door between them. He says Dawson ripped the screen door open without further explanation, jerked him out of the house and placed him under arrest.
Borror said he was neither read his rights, nor told why he was being arrested until they arrived at the Sheriff’s office in Moorefield. He was charged with felony destruction of property, transported to the Potomac Highlands Regional Jail in Augusta by Deputy Ben Parker, and released later that evening on $2,000 bail.
On July 17, Borror discovered that three of his security cameras had been ripped down and were missing. The security footage revealed that Malcolm’s employee, Colette, was filmed in the act of dismantling the cameras and carrying them away. Borror called West Virginia State Police once again, and Corporal N. J. Schellhaus responded. Borror advised Schellhaus that he had camera footage of Colette carrying off his missing security cameras, and told him where he believed the Trooper could locate Colette. Schellhaus went to find Colette, retrieved the cameras and left them on Borror’s porch later that day. Borror said Schellhaus told him in a subsequent phone call that he had already called the Hardy County Sheriff and was aware that criminal charges were pending against Borror, and was declining to charge Colette with trespassing or theft, since he believed the cameras were located on Malcolm’s property – the survey establishes they were not – and that Schellhaus would not respond to any further calls from Borror about the matter. This was a civil matter, not a criminal one, Schellhaus told Borror, and he shouldn’t be wasting police officers’ time on it.
On Monday, July 25, the matter came before Magistrate Judge Shawna Crites, but was continued for 30 days by agreement. Borror was charged with Destruction of Property in the amount of $4,000. In his affidavit supporting the Complaint, Dawson says, “On Monday, June 27, 2022, this officer received four (4) photographs showing the damages Borror had done to Ward Malcolm’s road by using equipment to dig it up. The photographs also show large rocks and other debris Borror had dug up out of the river and placed on the bridge.”
The affidavit goes on to say, “On Tuesday, June 28, 2022, this officer spoke with Ward Malcolm who advised his current expenses to correct that damage caused to his property was $4,000.”
Four photographs are appended along with the affidavit, illustrating several rocks and a small tree trunk adjacent to the entrance to the bridge, with one rock sitting on the deck of the bridge. The report does not identify the photographs’ source, nor does it indicate further investigation was done to confirm allegations that Borror placed the debris there, including any attempt to speak with him prior to applying for the arrest warrant. There is also no verification of Malcolm’s claimed costs.
After examining that report and plat, the Examiner called Borror’s surveyor, Keplinger, for confirmation. Contrary to the allegations in Malcolm’s statement and Dawson’s affidavit appended to the Complaint, Keplinger immediately confirmed that Borror’s land extends to the river’s edge, and reaffirmed that his survey concurred with the description in the deed. The survey map and its supporting notes make no mention of any rights-of-way or easements, except that of the adjacent South Fork Road. When asked why no rights-of-way or easements were noted or referenced in the report, Keplinger’s demeanor abruptly changed and he said, “I’m not going to say any more. This matter is likely to end up in court.”
An Examiner reporter visited Borror’s property, and visually confirmed that, with the possible exception of one rock, the debris shown in the photographs was located on property that the deed, the survey, and the surveyor all agree belongs to Borror – not Malcolm. Since Malcolm makes no claim of ownership of the debris, Borror appears to have been charged with “destruction” of his own property. The bridge deck shows no apparent damage from any rock placed on it, so even if it can be conclusively proven that Borror placed it there, substantiating a claim for $4,000 in damage appears challenging.
Which Bridge? What Right of Way?
Dawson’s affidavit appends the deed to Malcolm’s property, circling a passage that could convey a right-of-way. But more careful reading of that passage and those surrounding it that were not circled in the appended copy of the deed, tell a different and more complicated story.
It is important to understand that there were once two bridges, only about 100-150 feet apart, and of very different types; both have been gone and abandoned for decades.
The first, referred to as the “swing” bridge, was a foot bridge located downstream of the recently-rebuilt vehicular bridge. It washed out during the 1985 flood, 37 years ago. The language potentially granting Malcolm the right-of-way addresses that bridge, but is mute on the other vehicular bridge that Malcolm rebuilt in 2021. That a right-of-way once existed to the “swing” bridge seems apparent from the portion of the deed circled in the appendage to Dawson’s report:
“The grantees, their heirs and assigns, and the said Frank Coneway are hereby granted the right to use the foot bridge or swing bridge across the west prong of the South Fork leading from the lot reserved by the said Rosa King to the island between the prongs of the river, with right of ingress and egress from said bridge across the lot reserved by Rosa King; and the grantor Rosa King, her heirs and assigns, and the grantees, their heirs and assigns, and the said Frank Coneway shall be responsible for the upkeep and maintenance of said bridge.”
A right-of-way to a foot bridge implies a walking right-of-way, but would not automatically confer the right to construct a roadway suitable for vehicular traffic.
But this easement does not apply to the bridge in dispute: The deed to Malcolm is dated 1967. A date cast into one of the disputed bridge abutments places its construction date in the 1970s. Since the disputed bridge had not yet been built, the right-of-way described in that deed could not have applied to it.
A separate grant in the deed – specifically to Frank Coneway, and terminating upon his death – granted him the right to use a 3.5-acre parcel with a farmhouse located on it, “together with an easement of right of way from the South Fork River and following the present roadway to the old farmhouse.” This right-of-way is specifically to the river, but does not grant an easement or right-of-way across the land Rosa King kept for herself, which is now Borror’s property.
The bridge that is the subject of the dispute was also washed out in 1985, was reportedly briefly rebuilt, and washed out again about 1991, still more than 30 years ago. The satellite view on Google Maps of the property clearly shows concrete abutments – but no bridge – appearing to confirm the veracity of Borror’s claim that the bridge was only recently rebuilt. Thus, under the most generous interpretation of the facts, the use was discontinued 31 years ago.
The McCausley Connection
Land and boundary disputes are not rare in rural West Virginia. They occur often, and when they are not resolved amicably by discussion and negotiation between the parties, they end up as civil actions in the courts. They are not criminal matters.
Borror was told by both West Virginia State Police Troopers and Hardy County Sheriff’s Deputy Baniak that the matter was civil. One Trooper told him to stop wasting police time with it. But then he was arrested on a felony charge that, at best, seems factually unsupported. He was disturbed, and puzzled why a veteran law enforcement officer like Dawson would act as apparently one-sidedly as he did. Borror wondered if there was some other factor he wasn’t seeing.
There may have been.
Dawson’s loyalty to Deputy Tommie McCausley, and the Deputy’s apparent influence is well-noted. Throughout an extensive, ongoing criminal investigation into McCausley’s alleged improper access to and possession of explicit child pornography files, and death threats toward a former co-worker, Dawson has remained his staunch supporter, even returning him to active duty while the criminal investigations continue. There’s speculation into the nature and extent of McCausley’s ability to influence or compel Dawson’s actions. It’s an easy leap that Dawson’s loyalty might govern his behavior in other situations involving McCausley and those to whom he might be connected.
The document recorded in the Hardy County Registry of Deeds, Book 305, Pages 919-933 may shed light on that theory. The document is a Deed of Trust, executed by McCausley and Ward Malcolm, in the amount of $138,710.64. Malcolm is effectively the guarantor of McCausley’s loan, pledging 176.69 acres of property as security and suggesting that McCausley would have good reason to keep Malcolm’s interests forefront.
It’s Built and Filled. Is it Permitted?
Concerned about the dumping of fill into the river, and the possibility of diesel fuel spilling into some of the fill, Borror said he contacted the Romney office of the Environmental Protection Agency to ask if Malcolm had applied for or needed any permits to rebuild the bridge or place fill in the river. He spoke with inspector Chad Swick, whom he said initially responded with great interest, promising to make an on-site inspection the next day. Swick did visit the property, and was met by Malcolm’s employee David Collette. After an extended conversation with Colette, Swick departed without actually making a full inspection, as recorded by Borror’s security cameras.
A phone call from the Examiner to Swick later the same day, asking about his inspection, received a very dismissive response. Swick said he, “didn’t deal with the press,” and said any inquiries would have to go to a public relations officer in Charleston. When asked if he had contact information for that office, Swick said he did not. When asked if he would report his findings, Swick said he would do so, and projected it would be “a month or more” before the report was completed and reviewed.
And In The Present Moment
The criminal charges against Borror are pending, and the matter continued for 30 days. Attorney Daniel James of Keyser represents Borror. In addition, Borror says he has retained counsel to pursue his civil concerns.
Repeated calls to Ward Malcolm went unanswered and unreturned. Malcolm was present at Borror’s hearing on July 25. Approached for comment, he declined to discuss the matter, saying simply that, “I want to be able to use the right-of-way that I’ve been using for 50 years,” before referring the reporter to his attorney, Nathan Walters, for comment.
Walters initially responded by saying, “We hope you’ll report both sides,” and provided his contact information. Walters was unavailable when called, but his assistant returned the call and asked for an e-mail address to which Walters could reply. The next day, Walters e-mailed his response: “While we sincerely appreciate your interest in the real estate issue the Malcolm’s [sic] are presently involved in, our Law Firm’s long-standing tradition is not to comment on pending issues our clients may or may not have.”
Walters suggested reaching out to the Prosecuting Attorney’s Office for information on the criminal matter pending against Borror. Calls to Assistant Prosecuting Attorney Orrin Staggers, who was present at Borror’s hearing and the apparent prosecutor for the matter, were unreturned at press time.
Meanwhile, Malcolm or his employees have apparently erected “No Trespassing” signs on Borror’s land, on either side of the roadway they have built, near the entrance to the recently-rebuilt bridge.[/private]