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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
E. VERNON FERRELL, JR., Plaintiff, v. EUGENE DOUB and DJD
INVESTMENTS, INC., Defendants
Filed: 16 September 2003
1. Easements_use of street_dedication and use
Summary judgment was correctly granted for plaintiff on the existence and scope of an
easement over a street. The evidence before the court clearly showed that plaintiff had acquired
an easement by dedication and by use.
2. Easements_unreasonable use_blocking a street
Defendants' ability to use a street over which plaintiff had an easement was not inhibited
unreasonably where the trial court ruled that a forty-foot eight-wheeled construction trailer
parked in the middle of the street was an unreasonable interference with plaintiff's right of
ingress and egress. Nothing in the court's order prohibits defendants from making a reasonable
use of their land.
3. Injunction_prior judgment incorporated_insufficient connection to prior party
The trial court erred when issuing a current injunction by incorporating by reference a
prior injunction where there was no evidence that defendants were in active concert or
participation with a party to the prior action. Succeeding in ownership of the property through
foreclosure did not cause the prior judgment to be automatically binding upon defendants.
Appeal by Defendants from judgment entered 13 June 2002 by
Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard
in the Court of Appeals 18 August 2003.
Robinson & Lawing, L.L.P., by Norwood Robinson and John N.
Taylor, Jr., for plaintiff-appellee.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Richard T. Rice
and Candice S. Wooten, for defendants-appellants.
Eugene Doub (Doub) and DJD Investments, Inc. (collectively
defendants) appeal from an order granting summary judgment in
favor of Vernon Ferrell, Jr. (plaintiff). We affirm in part and
reverse in part.
Plaintiff filed a complaint on 30 November 2001 against
defendants seeking to enjoin parking of defendants' trailers or
vehicles on Lot 114D, which is used as a street named Parr Street
(Parr Street), or from taking other actions to impede the use and
enjoyment of plaintiff's easement over Parr Street by residents of
the Mountain Lodge Apartments.
Plaintiff is the owner of real property located in Forsyth
County, North Carolina, that is identified on a recorded
subdivision map as Lots 104 and 105. One hundred twenty-four (124)
residential apartments, known as the Mountain Lodge Apartments,
that were built 35 years ago and continuously used as apartments,
are located on these lots. On the eastern end of these lots,
Bethania Station Road is located. Parr Street, a sixty-foot wide
paved street, runs between Lots 104 and 105 in a westerly
direction. The only access to the apartment parking lot on Lot 104
is by Parr Street. At the western end of Parr Street is an earthen
dike perpendicular to the street. The apartment buildings are
located within a flood plain. The dike protects the apartments
from flooding from the stream that runs behind the dike.
All the lots at issue were originally part of a large single
tract of land owned by J.R. Yarbrough (Yarbrough). In the 1960s,
Yarbrough subdivided the tract and sold Lots 104 and 105 to D.W.
Snow, who built the apartments. At that time, Yarbrough set aside
Parr Street on the recorded map and dedicated it as a public
street. Parr Street has been used continuously by the owners,
apartment tenants, and the public for 35 years. In 1974, plaintiff purchased the apartment complex. At that
time, Lots 114C and Parr Street were conveyed to Old Town Shopping
Center, Inc. (Old Town). Doub began acquiring and developing
property adjacent to the apartments and Parr Street throughout the
1970s and 1980s. Doub had actual knowledge of plaintiff's use of
the Parr Street easement. In 1981, Yarbrough conveyed Parr Street
to Doub. By 1985, Parr Street was described in eight conveyances
between Yarbrough and Doub. In 1994, Doub reconveyed Parr Street
to Yarbrough and recorded a deed of trust on the real property
subject to the Parr Street easement.
In 1995, plaintiff brought a suit against Yarbrough and Old
Town to enjoin them from conducting certain fill activity and
construction on Parr Street. Defendants were not joined as party
defendants. On 20 December 1996, the Honorable William Z. Wood,
Jr. entered a judgment finding that plaintiff had acquired both an
easement by dedication and by prior use over Parr Street for
ingress and egress to Mountain Lodge Apartments. Yarbrough and
Old Town were enjoined from conducting any fill activity on Parr
Doub foreclosed the deed of trust on the property under Parr
Street, purchased it at the trustee sale in September of 1998, and
moved one of his construction trailers onto Parr Street. Shortly
thereafter, plaintiff brought suit to enjoin defendants from
parking their trailers on Parr Street. Defendants timely filed an
answer and counterclaim. Plaintiff moved for summary judgment
asserting that no genuine issue of material fact existed to whether
plaintiff had acquired an easement over Parr Street for ingress andegress to the apartments. On 13 June 2002, Judge Wood granted
plaintiff's motion for summary judgment and dismissed defendants'
counterclaims. Judge Wood also ruled that the prior judgment
against Yarbrough and Old Town from 1996 was binding on defendants.
The issues are whether the trial court erred in: (1) granting
plaintiff's motion for summary judgment on the issue of the
existence of an easement, (2) restricting defendants' ability to
utilize Parr Street in a manner that is consistent with plaintiff's
reasonable use and enjoyment his easement, and (3) holding that the
prior 1996 injunction entered against Yarbrough and Old Town is
binding on defendants.
III. Granting of Summary Judgment
 Defendants assert the trial court improperly granted
summary judgment in favor of plaintiff. Rule 56 of the North
Carolina Rules of Civil Procedure states that summary judgment will
[i]f the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that any party is entitled
to a judgment as a matter of law.
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2000).
Where the forecast of evidence available demonstrates that a
party cannot present a prima facie case at trial, no genuine issue
of material fact exists and summary judgment is appropriate.
Boudreau v. Baughman, 322 N.C. 331, 342, 368 S.E.2d 849, 858
(1988). [I]n ruling on a motion for summary judgment the courtdoes not resolve issues of fact and must deny the motion if there
is any issue of genuine material fact. Singleton v. Stewart, 280
N.C. 460, 464, 186 S.E.2d 400, 403 (1972).
Defendants assert that Judge Wood's grant of summary judgment
as to the existence and scope of the easement across Parr Street
was erroneous. We disagree. The evidence before Judge Wood
clearly showed that plaintiff and tenants of the apartment complex
had acquired an easement by dedication and by prior use.
Defendants conceded that plaintiff's evidence showed the essential
elements of an easement by prior use. Yarbrough had: (1) common
ownership of the dominant and servient parcels of land, (2) use of
Parr Street for access to the other part of the land, and (3) that
this use was apparent, continuous, and permanent before the
transfer of the land. Plaintiff also produced evidence that the
easement is reasonably necessary to the use and enjoyment of the
apartments located on Lot 104, since it is the only access to the
parking lots serving the apartments located on Lot 104.
Defendants conceded that plaintiff's evidence also showed the
elements of an easement by dedication. Yarbrough dedicated Parr
Street in a recorded plat to be used as a public street. The
dedication was accepted by implication by continuous public use for
more than 35 years. [A]cceptance may be shown not only by formal
action on the part of the authorities having charge of the matter,
but, under certain circumstances, by the user as of right on the
part of the public. . . . Town of Blowing Rock v. Gregorie, 243
N.C. 364, 368, 90 S.E.2d 898, 901 (1956). No genuine issue of
material fact exists that plaintiff acquired an easement over ParrStreet and that defendants had actual and record notice of this
IV. Use of the Parr Street Easement
 Defendants assert that Judge Wood prevented them from
utilizing Parr Street in a reasonable manner which does not
substantially impede the use of Parr Street by plaintiff and the
The owner of land subject to an easement has the right to use
his land in any manner and for any purpose which is not
inconsistent with the reasonable use and enjoyment of the existing
easement. Hundley v. Michael, 105 N.C. App. 432, 413 S.E.2d 296
(1996). The entire length (300 feet) and width (60 feet) of Parr
Street was dedicated as an easement for vehicular access to the
apartment lots. Defendants, the owners of the lot subject to the
easement, parked a forty-feet eight-wheeled construction trailer in
the middle of Parr Street. This trailer remained parked for ten
months until Doub was ordered to remove it by the court.
Defendants assert that the placing of a forty-feet eight-wheeled
construction trailer in the middle of Parr Street is not
inconsistent with the right of ingress or egress to plaintiff's
Judge Wood ruled that plaintiff and tenants of the apartments
had obtained an easement by both dedication and by prior use. He
further ruled that plaintiff and his tenants had a right of travel
over Parr Street and enjoined defendants from unreasonably
interfering with that right. Judge Wood granted defendants the
right to use the lot under Parr Street, as long as defendants' usedid not interfere with the rights of plaintiff and his tenants, and
ruled that plaintiff should not interfere with defendants' right to
use Parr Street.
After reviewing all the evidence, Judge Wood ruled that
defendants' placement of a forty-feet eight-wheeled construction
trailer in the middle of the easement was an unreasonable
interference of plaintiff's right of ingress and egress. Evidence
that the trailer was parked in the middle of Parr Street and
blocked or obstructed plaintiff's and his tenants' access to the
apartments, shows no genuine issue exists whether this trailer was
an unreasonable interference to plaintiff's right of ingress and
egress across Parr Street. Nothing in Judge Woods' order prohibits
defendants from making a reasonable use of their land. It simply
prohibits them from interfering with plaintiff's and his tenants'
enjoyment of his easement. Defendants' assignment of error is
V. Prior Injunction
 In North Carolina, an entity that is not a party to a
lawsuit cannot be bound by an injunction issued as a result of that
litigation, absent the existence of a relationship between a party
and the nonparty and notice of the injunction proceeding. Trotter
v. Debnam, 24 N.C. App. 356, 210 S.E.2d 551 (1975).
North Carolina law requires that persons affected by
injunctions are to be given notice before the issuance of an
injunction. N.C. Gen. Stat. § 1A-1, Rule 65(a) (2000). Absent
notice, the court lacks personal jurisdiction over the nonparty,
and the injunction is void to the nonparty. Helbein v. SouthernMetals Co., 119 N.C. App. 431, 433, 458 S.E.2d. 518, 519 (1995).
Defendants contend they were not parties to the 1996 action,
and were not either officers, agents, servants, employees or
attorneys of any party as defined by Rule 65(d). Defendants deny
being in active concert or participation with a party to the
prior proceedings as defined by Rule 65(d). Defendants also
contend they received no notice of the prior lawsuit filed by
plaintiff against Yarbrough and Old Town. Plaintiff contends that
Judge Wood did not err in applying the 1996 judgment against
defendants because plaintiff filed a new lawsuit against defendants
rather than a motion to hold defendants in contempt of the prior
North Carolina General Statute § 1A-1, Rule 65(d) states:
Every order granting an injunction and every
restraining order shall set forth the reasons
for its issuance; shall be specific in terms;
shall describe in reasonable detail and not by
reference to the complaint or other document,
the act or acts enjoined or restrained; and is
binding only upon the parties to the action,
their officers, agents, servants, employees,
and attorneys, and upon those persons in
active concert or participation with them who
receive actual notice in any manner of the
order by personal service or otherwise.
N.C. Gen. Stat. § 1A-1, Rule 65(d) (2000) (emphasis supplied).
Rule 65(d) of the North Carolina Rules of Civil Procedure is
identical to the corresponding Federal Rule of Civil Procedure,
except for the requirement that the judge state the reasons for
granting the injunction and the acts to be restrained. The rule
limits the scope of injunctive power and should not be construed to
allow courts to grant an enforcement order or injunction so broad
as to make punishable the conduct of persons who act independentlyand whose rights have not been adjudged according to law. Regal
Knitwear Co. v. NLRB, 324 U.S. 9, 13, 89 L. Ed. 661, 666 (1945).
Defendants were beneficiaries of a valid and recorded deed of
trust on the land under Parr Street prior to the initiation of the
lawsuit between plaintiff and Yarbrough and Old Town. Despite
record notice, plaintiff failed to provide defendants with notice
as required by Rule 65(d). Defendants assert they did not learn of
the 1996 injunction until immediately prior to the initiation of
this lawsuit. Defendants also contend that a court cannot enlarge
the group upon whom an injunction is binding beyond those
individuals enumerated in Rule 65(d) of the North Carolina Rules
of Civil Procedure.
According to the United States Supreme Court, the [use of
the] term 'successors and assigns' in an enforcement order . . .
may not enlarge its scope beyond that defined by the Federal Rules
of Civil Procedure. Id. at 14, 89 L. Ed. at 666. Whether one
brings himself in contempt as a successor or assign depends on an
appraisal of his relations and behavior and not upon mere
construction of terms of the order. Id. at 15, 89 L. Ed at 667.
It is not the successive relationship that subjects a party to the
purview of Rule 65(d), but the relation between the defendant and
the successor which might of itself establish liability within the
terms of Rule 65(d). Id.
The mere fact that defendants succeeded Yarbrough and Old Town
to ownership, through foreclosure of Parr Street, does not cause
the prior judgment to be automatically binding upon defendants.
Some evidence must exist to support a finding that defendants werein active concert or participation with one or more of the named
parties to the action or their officers, agents, servants,
employees, or attorneys. Trotter, 24 N.C. App. at 362, 210 S.E.2d
at 555. Plaintiff offered and the court found none.
Here, Judge Wood specifically incorporated by reference the
1996 injunction into the 2002 injunction and made all terms of the
prior injunction binding upon defendants. The 1996 injunction
prevents defendants from conducting any fill activity or
construction on Lot 104, Lot 105 and Parr Street and from any
construction, excavation or fill activity that would alter or
affect the present configuration of the dike or stream.
N.C. Gen. Stat. § 1A-1, Rule 65(d) specifically states the
trial court shall describe in reasonable detail and not by
reference to the complaint or other document, the act or acts
enjoined or restrained. N.C. Gen. Stat. § 1A-1, Rule 65(d)
(2000)(emphasis added). Judge Wood could not make the 1996
injunction binding upon the defendants by incorporating it by
reference. We reverse that portion of Judge Wood's order that
purports to bind defendants to the provisions of the 1996
We affirm that portion of the order granting summary judgment
to plaintiff on the issue of the existence of an easement across
Parr Street and ordering of the removal of the forty-feet eight-
wheeled construction trailer. We reverse that portion of the trial
court's order purporting to bind defendants to the provisions of
the 1996 injunction. Affirmed in part and reversed in part.
Chief Judge EAGLES and Judge STEELMAN concur.
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