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which affirmative defense?

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Junior Member
What is the name of your state (only U.S. law)? West Virginia

We have had a petition for an injunction brought against us. Basically, long story short. We were told by the petitioner that he has a right of way through our yard. We have owned this property for a year and half now, and when we first bought it, the road (it's more like a dirt path, it's not graveled) straddled the property line. It is now entirely on my property. We researched the deeds for our property and the surrounding properties. We discovered that in the deeds for the surrounding properties (The petitioners properties infact) is where the right of way belongs. I researched aerial photographs, and surveys and have a mountain of evidence of him moving the road over on our property, including pictures of how much he has moved it just since we bought the property. We blocked the path, Petitioner owns the properties on 3 sides of me and is not land locked by my blocking the path, sheriff has come out and did not make me unblock but I did offer to let petitioner move the road back to straddling the property line like it was when I bought it. His decision however was to have had papers filed against us.

We unfortunately haven't been able to see a lawyer soon enough to have him write up our response (long waiting list for all lawyers in the area) but I did get a consultation with one and he liked what I had wrote up already and said it was very good. He said I should add an affirmative defense though as the petitioner is banking on the fact that in our state that after a road has been traveled on for 10 years it becomes a right of way. The lawyer said though that with me having evidence the road has moved, that the 10 years would start over every time the road is moved. He did not say which affirmative defense I should use though, can anyone help me? Thank you in advance for responses!

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