Easements--prescription--failure to establish requisite hostile nature of use
The trial court did not err by granting summary judgment in favor of defendants on
plaintiff's claims for an easement by prescription because the evidence presented is insufficient
to establish the alleged use of the extensions by plaintiff and its predecessors over defendants'
lands was adverse, hostile, or under claim of right when: (1) there is no evidence indicating
whether defendants ever consented or objected to any use of the extensions by plaintiff, nor is
there evidence of the manner in which the alleged extensions have been used; (2) there is no
evidence that permission was ever sought to use the extensions, and plaintiff's evidence indicates
that none of the defendants ever voiced an objection to the use of the extensions by plaintiff's
predecessors; (3) there is no evidence that plaintiff or its predecessors ever made repairs or
improvements to the extensions that would give notice to defendants of their use of the
extensions; and (4) using the extensions as the sole means of access to the combined property
alone does not rebut the presumption of permissive use.
Daniel J. Park, P.A., by Daniel J. Park, for plaintiff-
appellant.
Wilson & Iseman, L.L.P., by Linda L. Helms, for defendants-
appellees H. Wade Baker and wife, Lola W. Baker, and Conner
Gwyn Schenk PLLC, by Allen Holt Gwyn and Paul E. Davis, for
defendants-appellees James Michael Trent and wife, Judy Trent,
and Betty M. Flinchum, in case No. 97 CVS 677.
Wilson & Iseman, L.L.P., by Linda L. Helms, for defendants-
appellees H. Wade Baker and wife, Lola W. Baker, in case No.
97 CVS 676.
WYNN, Judge.
In February 1996, Yadkin Valley Land Company, L.L.C., a North
Carolina limited liability company, acquired title in fee tocertain real property located in Surry County consisting of
approximately 887 acres divided into various tracts. The portion
of Yadkin's property at issue in case No. 97 CVS 677 is a tract
consisting of approximately 63 acres (the “south property”). The
portion of Yadkin's property consisting of approximately 50 acres
(the “east property”) is the subject of case No. 97 CVS 676, a
companion case also before this Court. Because the issues
presented in these companion cases are identical, and the facts
virtually so, we refer to the south property and the east property
collectively as “the combined property”; and, we consolidate the
two cases on appeal to render this single opinion on all issues.
Yadkin's south property is bordered generally on three sides,
to the south, east and west, by the Ararat River. To the north,
Yadkin's south property is bordered by property owned by defendants
James Michael Trent and his wife, Judy Trent, and by property owned
by defendant Betty M. Flinchum. Defendants H. Wade Baker and his
wife, Lola W. Baker, own property located adjacent to and generally
north of the Trents' property and the Flinchum property.
Yadkin's east property is bordered generally on three sides,
to the south, east and north, by the Ararat River. To the west,
Yadkin's east property is bordered by property owned by the Bakers.
Prior to Yadkin's ownership, Crescent Resources, Inc.
(formerly Crescent Land and Timber Corp.) owned the property from
16 January 1989 until 13 February 1996. Before that time, Duke
Power Company owned the property. Neither the south property nor
the east property is accessed by any public road. Crackers Neck
Road, a public road (SR 2046), ends as a state-maintained road onthe Bakers' property.
On 23 June 1997, Yadkin filed separate complaints--one each in
connection with the south property and the east property--setting
forth three claims: (1) easement by necessity, (2) easement by
prescription, and (3) right to statutory cartway under N.C. Gen.
Stat. §§ 136-68 and 136-69. The complaint regarding the south
property alleged that the only means of access to the south
property “is across the defendant Bakers' property, or across the
defendant Trents' or the defendant Flinchum, or both.” The
complaint alleged that an extension of Crackers Neck Road extended
from the Bakers' property to Yadkin's south property, which
extension was allegedly used by Yadkin and its predecessors-in-
title to access the south property. The complaint regarding the
east property alleged that “[t]he only means of access to
plaintiff's [east] property is across the [Bakers'] property.”
Correspondingly, that complaint alleged than an extension of
Crackers Neck Road extended from the Bakers' property to Yadkin's
east property, which extension was allegedly used by Yadkin and its
predecessors-in-title to access the east property. On 16 March
1999, Yadkin voluntarily dismissed without prejudice its third
claim for a statutory cartway easement as to both the south
property and the east property. In April 1999, the defendants
moved for summary judgments on the remaining two claims concerning
the south and east properties. At the outset of the hearing on the
two motions, Yadkin took a voluntary dismissal of its first claim
for easement by necessity regarding both the south property and the
east property, leaving only the second claim for easement byprescription at issue for each tract.
Superior Court Judge Howard R. Greeson, Jr., granted both of
defendants' motions for summary judgment on the claims for easement
by prescription by orders filed on 21 June 1999. From those orders
Yadkin appeals.
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The issue on appeal is whether the trial court committed
reversible error in granting the defendants' motions for summary
judgement on Yadkin's claims for an easement by prescription.
Yadkin argues in each case that the record on appeal supports its
contention that there existed a genuine issue of material fact, and
that the defendants, therefore, were not entitled to judgment as a
matter of law. We disagree.
An order of summary judgment by the trial court is fully
reviewable by this Court. Virginia Elec. and Power Co. v. Tillett,
80 N.C. App. 383, 385, 343 S.E.2d 188, 191, cert. denied, 317 N.C.
715, 347 S.E.2d 457 (1986) (citation omitted). Indeed, “[s]ummary
judgment is appropriate when the pleadings, depositions,
affidavits, and other evidentiary materials demonstrate the absence
of any triable issue of fact and the moving party's right to
judgment as a matter of law.” Murakami v. Wilmington Star News,
Inc., 137 N.C. App. 357, 359, 528 S.E.2d 68, 69, disc. review
denied, 352 N.C. 148, __ S.E.2d __ (2000) (citing Yamaha Int'l
Corp. v. Parks, 72 N.C. App. 625, 325 S.E.2d 55 (1985); N.C. Gen.
Stat. § 1A-1, Rule 56(c) (1999)). “Defendants are thereby entitled
to summary judgment if they establish either the nonexistence of anessential element of plaintiff's claim or show that plaintiff could
not produce evidence of an essential element of her claim.”
Mitchell v. Golden, 107 N.C. App. 413, 417, 420 S.E.2d 482, 484
(1992) (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C.
57, 414 S.E.2d 339 (1992)). “In reviewing the trial court's grant
of summary judgment this court must examine the evidence in the
light most favorable to the non-movant[.]” Delk v. Hill, 89 N.C.
App. 83, 84-85, 365 S.E.2d 218, 219, disc. review denied, 322 N.C.
605, 370 S.E.2d 244 (1988).
To establish an easement by prescription, a claimant must
prove by the greater weight of the evidence that: (1) the use is
adverse, hostile or under claim of right; (2) the use has been open
and notorious such that the true owner had notice of the claim; (3)
the use has been continuous and uninterrupted for at least twenty
years; and (4) there is substantial identity of the easement
claimed throughout the prescriptive period. Potts v. Burnette, 301
N.C. 663, 666, 273 S.E.2d 285, 287-88 (1981). Prescriptive
easements are not favored in the law, and the burden is therefore
on the claiming party to prove every essential element thereof.
Id. at 666, 273 S.E.2d at 288.
It is well-settled that mere permissive use of a way over
another's land cannot ripen into an easement by prescription no
matter how long it continues. Dickinson v. Pake, 284 N.C. 576,
581, 201 S.E.2d 897, 900 (1974). Furthermore, any such use is
presumed to be permissive unless that presumption is rebutted by
evidence to the contrary. Id. at 580, 201 S.E.2d at 900 (citationsomitted).
To rebut the presumption of permissive use, the party claiming
the prescriptive easement must present evidence that establishes a
hostile use. Id. at 581, 201 S.E.2d at 900 (citation omitted). To
establish a hostile use, a claimant must show “a use of such nature
and exercised under such circumstances as to manifest and give
notice that the use is being made under claim of right.” Dulin v.
Faires, 266 N.C. 257, 261, 145 S.E.2d 873, 875 (1966). This Court
has previously stated that “[n]otice to the true owner of the
existence of the alleged easement is 'crucial to the concept of
holding under a claim of right.'” Johnson v. Stanley, 96 N.C. App.
72, 75, 384 S.E.2d 577, 579 (1989) (quoting Taylor v. Brigman, 52
N.C. App. 536, 541, 279 S.E.2d 82, 85-86 (1981)). “A party can
give notice to the true owner by 'open and visible acts such as
repairing or maintaining the way over [the true owner's] land.'”
Pitcock v. Fox, 119 N.C. App. 307, 310, 458 S.E.2d 264, 267 (1995)
(quoting Johnson, 96 N.C. App. at 75, 384 S.E.2d at 579).
While the claimant need not show that “there was a heated
controversy, or a manifestation of ill will, or that the claimant
was in any sense an enemy of the owner of the servient estate,”
Dulin, 266 N.C. at 260-61, 145 S.E.2d at 875 (quoting 17A Am. Jur.
Easements § 76, p. 691), “there must be some evidence refuting the
inference that the use is permissive and with the owner's consent.”
Perry v. Williams, 84 N.C. App. 527, 529, 353 S.E.2d 226, 227
(1987) (citing Dickinson). Yadkin's evidence in the record on appeal consists of the
affidavits of Brad Howard (an employee of Weyerhaeuser Company),
Terry Key (employee of Crescent), Harold Allen Eason (employee of
Duke Energy, formerly Duke Power), James R. “Randy” Hobbs (employee
of Duke Energy) and Jake N. M. Guyer (member of Yadkin). Those
affidavits tend to show the following: That there is an extension
of Crackers Neck Road that leads southward from the defendant
Bakers' property, across the defendant Trents' property to the
Yadkin south property; that there is an extension of Crackers Neck
Road that leads eastward from the Bakers' property to the Yadkin
east property; these extensions are the only means of ingress and
egress for the combined property; these extensions are not public
roads, nor are they paved or otherwise improved; the combined
property is used for the growing of timber; Yadkin has sold the
timber on the combined property to Weyerhaeuser for harvesting;
Yadkin acquired the combined property on 13 February 1996; from 16
January 1989 until 13 February 1996, the combined property was
owned by Crescent; Crescent acquired the combined property from
Duke Power, which acquired the land during the 1930s; Yadkin,
Crescent and Duke Power have used the extensions to access the
combined property at various times since the 1930s; members of
Yadkin have “gone upon the [combined] property” by using the
extension “to check on the timber and the condition of the
[combined] property in general”; members of Yadkin “went onto the
[combined] property before and after buying it and up until the
time” the complaint was filed “by traveling Cracker[s] Neck Road to
a point where it ceases to be a public road and then continuingwith that same road” to the combined property; representatives of
Yadkin and Weyerhaeuser have walked the extensions of Crackers Neck
Road to the combined property; none of the defendants ever
complained of or expressed any opposition to such use of the
extensions by Crescent or Duke Power.
The evidence thus presented is insufficient to establish that
the alleged use by Yadkin, Crescent and Duke Power was adverse,
hostile or under claim of right, and therefore fails to rebut the
inference of permissive use. There is no evidence indicating
whether the defendants ever consented or objected to any use of the
extensions by Yadkin (as opposed to Crescent or Duke Power), nor is
there evidence of the manner in which the alleged extensions have
been used, whether for vehicular traffic, foot traffic, or
otherwise. There is no evidence that permission was ever sought by
Yadkin, Crescent or Duke Power to use the extensions, and Yadkin's
evidence indicates that none of the defendants ever voiced an
objection to the use of the extensions by Crescent or Duke Power.
There is no evidence that Yadkin, Crescent or Duke Power ever made
repairs or improvements to the extensions. This evidence:
is tantamount to an assertion that [Yadkin]
used the [extensions] in silence. “Neither
law nor logic can confer upon a silent use a
greater probative value than that inherent in
a mere use.” . . . The mere use of a way over
another's land cannot ripen into an easement
by prescription, no matter how long it may be
continued.
Godfrey v. Van Harris Realty, Inc., 72 N.C. App. 466, 469-70, 325
S.E.2d 27, 29 (1985) (quoting Henry v. Farlow, 238 N.C. 542, 544,
78 S.E.2d 244, 246 (1953)). In Pitcock, the party claiming the prescriptive easement
testified that he never requested nor received permission to use
the land in question for an access drive, which provided the only
means of access to the claimant's property. 119 N.C. App. at 310,
458 S.E.2d at 267. Furthermore, he never made any improvements or
changes to the drive. Id. While holding that “performing
maintenance or repair work to a road is not the sole way to give
the true landowner notice of adverse use,” we found that the
evidence presented showed that the claimant and his predecessors
“only used the drive as a means of ingress and egress,” which
failed to establish that the use was adverse, hostile or under
claim of right for the prescriptive period of twenty years. Id. at
311, 458 S.E.2d at 267. Similarly, in the instant cases Yadkin has
never requested nor received permission to use the extensions, nor
has Yadkin or its predecessors made any repairs or performed any
maintenance on the extensions that would give notice to defendants
of their use of the extensions. Assuming, arguendo, that Yadkin,
Crescent and Duke Power occasionally (although admittedly
infrequently) used the extensions as the sole means of access to
the combined property, such use alone does not rebut the
presumption of permissive use and establish that such use was
adverse, hostile or under claim of right.
As Yadkin has failed to establish that its use of the
extensions (in addition to the use by Crescent and Duke Power) was
not permissive, in the absence of such a showing we must assume
that such use was with the consent of the defendants and wastherefore not adverse, hostile or under claim of right.
Accordingly, we hold that the absence of evidence establishing the
requisite hostile nature of the use of the extensions over the
defendants' lands entitled the defendants to judgment as a matter
of law. Each order of summary judgment by the trial court is
therefore,
Affirmed.
Judges McGEE and TIMMONS-GOODSON concur.
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