An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1437


Filed: 7 October 2003

SOLOMAN NORTON, unmarried;
EDWARD NORTON, unmarried;
and husband, DENNIS PLEMMONS;
and husband, RONALD SHETLEY;
WILLIAM J. NORTON, Jr. and wife,
NORTON Administrator of the
ESTATE of W.M. NORTON, deceased,

v .                         Madison County
                            No. 99 SP 19

    Appeal by respondents from judgment entered 3 June 2002 by Judge Hal G. Harrison in Madison County Superior Court. Heard in the Court of Appeals 26 August 2003.

    Stephen E. Huff, for petitioners-appellees.

    Leake & Scott, by Larry Leake, for respondents-appellants.

    CALABRIA, Judge.

    Petitioners instituted this action seeking a determination of the boundary line between the parties' adjoining property. In a judgment entered 3 June 2002, the court determined the correct boundary line and ruled respondents failed to prove their claim of adverse possession of the disputed area. Respondents appeal, asserting the trial court erred in finding no adverse possession. Since we find respondents failed to prove exclusive possession, an essential element of adverse possession, we affirm the judgment of the trial court.
    Petitioners and respondents are owners of adjoining tracts of land located in Madison County, North Carolina. The disputed property (the “conflict area”) was conveyed to respondents on 1 March 1965 as part of their purchase of a tract of land. The trial court found as fact the boundary lines in the 1965 deed were based on an error in the survey. The judgment corrected the legal description to identify the boundary lines. Although respondents assigned the court's finding as error, they failed to argue this point in their brief, and it is deemed abandoned. N.C. R. App. P. 28(b)(6) (2003). Since the trial court also found as fact that “there has been no exclusive possession of [the conflict area] by the Respondents[,]” the trial court concluded respondents' claim of adverse possession should be dismissed. Respondents appeal, asserting the trial court erred in treating petitioners' motion for a directed verdict as a motion for involuntary dismissal and in determining respondents did not adversely possess the conflict area.
    Respondents assert the trial court erred by granting the petitioners' motion for a directed verdict when the proper motion should have been a motion for involuntary dismissal. Petitioners concede the proper designation of the motion in question should have been for involuntary dismissal pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure. However, “[w]hen a motionto dismiss under Rule 41(b) is incorrectly designated as one for a directed verdict, it may be treated as a motion for involuntary dismissal.” Hill v. Lassiter, 135 N.C. App. 515, 517, 520 S.E.2d 797, 800 (1999); Greensboro Masonic Temple v. McMillan, 142 N.C. App. 379, 381, 542 S.E.2d 676, 678 (2001). Accordingly, we hold the trial court did not err in considering petitioners' motion under Rule 41(b).
    Respondents next assert that, even pursuant to Rule 41(b), the trial court erred in finding no adverse possession. “Involuntary dismissal under Rule 41(b) is properly granted in the following circumstances: (1) if the party with the burden of proof has shown no right to relief, or (2) if that party has shown a right to relief but the trial court as trier of fact determines that the movant is entitled to a judgment on the merits.” Ayden Tractors v. Gaskins, 61 N.C. App. 654, 660, 301 S.E.2d 523, 527 (1983). In the case at bar, the trial court determined that petitioners were entitled to a judgment on the merits. When the trial court decides to render a judgment on the merits, the Rules of Civil Procedure require findings of fact. N.C. Gen. Stat. § 1A-1, Rule 41(b) (2001). The trial court explicitly concluded as a matter of law “[t]hat there [was] insufficient evidence of adverse possession of said conflict area by the Respondents[.]”
    “To acquire title to land by adverse possession, the claimant must show actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period . . . under known and visible lines and boundaries.” Merrick v.Peterson, 143 N.C. App. 656, 663, 548 S.E.2d 171, 176 (2001). Under North Carolina law, the prescriptive period for adverse possession is either seven years under color of title or twenty years without color of title. N.C. Gen. Stat. §§ 1-38, 1-40 (2001).
    The North Carolina Supreme Court has ruled that
        when a landowner, acting under a mistake as to the true boundary between his property and that of another, takes possession of the land believing it to be his own and claims title thereto, his possession and claim of title is adverse. If such adverse possession meets all other requirements and continues for the requisite statutory period, the claimant acquires title by adverse possession even though the claim of title is founded on a mistake.

Walls v. Grohman, 315 N.C. 239, 249, 337 S.E.2d 556, 562 (1985). Furthermore, this Court has held, in an action by the State to quiet title, that defendant's claim of adverse possession was precluded because their possession was “not continuous, uninterrupted, or exclusive” based, inter alia, on defendant's testimony that “someone else had used the property and built some roads.” State v. Taylor, 60 N.C. App. 673, 678, 300 S.E.2d 42, 45 (1983).
    In the case at bar, the trial court relied on testimony and other evidence presented at trial to find “there has been no exclusive possession of any of said [conflict] area by the Respondents.” Respondents argue that “there was uncontradicted evidence that the Respondents had constructed a barn, cut wood, farmed and kept cattle on the disputed property . . . .” Mr.McMahan, the court-appointed surveyor, agreed that it was “fair to say that [the conflict area] . . . is just open woodland” with no livestock, pastureland, houses, or signs of human activity. Shermont Stills (“Stills”) admitted his structures and buildings were not located on the conflict area. Moreover, Stills admitted petitioners built a soil road located on the conflict area and used it to “go in and out.” This testimony clearly indicates respondents did not have exclusive use of the conflict area as required for respondents to adversely possess the land.
    Given the undisputed evidence of petitioners' use of the conflict area, respondents have failed to prove their possession of the conflict area was exclusive as required by North Carolina law. N.C. Gen. Stat. §§ 1-38, 1-40 (2001). Accordingly, we hold the trial court did not err and petitioners were entitled to a judgment on the merits.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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