Appeal by plaintiffs from judgment entered 14 May 2004 by
Judge Kenneth F. Crow in Superior Court, Carteret County. Heard in
the Court of Appeals 24 August 2005.
Kirkman Whitford & Brady, P.A., by Neil B. Whitford, for
Wheatly, Wheatly, Nobles, Weeks, Valentine and Lupton, P.A.,
by C.R. Wheatly, Jr. and C.R. Wheatly, III, for defendant-
Plaintiffs claim an interest in a tract of real property in
Carteret County depicted as Lot 1 Block 6, bearing the legend
"Landing for Lot owners" (the landing), on a plat captioned "Map
Showing Property of Beaufort Houseing [sic] Corporation" (the
plat). The plat was recorded in Map Book 1, Page 226, Carteret
County Registry on 26 February 1945. The plat lays out various
lots and streets in a subdivision, including the landing.
Beaufort Housing Corporation conveyed various lots, including
lots currently owned by several plaintiffs, and referenced the plat
in the conveyances. From the 1940's to the present time, there
generally has been a dock or pier extending from the landing into
the waters of Taylor's Creek. Since the 1940's, owners of property
within the subdivision, including several plaintiffs and their
predecessors in interest, have used the landing and various piers
located thereon for access to Taylor's Creek.
Defendant recorded a deed dated 16 July 1993 which purported
to convey to defendant the same real property as that encompassedin the landing. In 1997 or 1998, defendant constructed a new pier
extending from the landing. A year or so later, defendant
constructed a gate on the pier and marked the gate with a "private
Plaintiffs filed this action on 14 July 2000 by securing an
order extending the time to file their complaint. Plaintiffs filed
a complaint to quiet title and for declaratory judgment on 2 August
2000 and an amended complaint on 1 September 2000. Lawrence B.
Wilson, Jr. and Elizabeth B. Wilson were plaintiffs in a parallel
case, 2000-CVS-000786. By stipulation and order filed 26 April
2004, 2000-CVS-000786 was dismissed and consolidated with the
present case, and Lawrence B. Wilson, Jr. and Elizabeth B. Wilson
were added as plaintiffs in this case.
Plaintiffs alleged in their complaint that they
(a) [were] the owners of the lot identified
as "Landing for lot owners," on the plat
recorded in Book 1, page 226, Carteret County
Registry, and they, or their predecessors in
title [had] been owners of said plat since the
recording of said plat [in] February, 1945;
(b) in the alternative [held] an easement to
and right to use the lot identified as
"Landing for lot owners," on the plat recorded
in Book 1, page 226, Carteret County Registry,
and they, or their predecessors in title,
[had] been owners of said plat since the
recording of said plat [in] February, 1945.
Plaintiffs also alleged that defendant claimed an estate or
interest in real property adverse to plaintiffs and that defendant
was obstructing plaintiffs in their use of the landing. Defendant
answered and counterclaimed, alleging that he was the owner in feesimple of the real property described by plaintiffs as the landing.
At trial, plaintiffs introduced into evidence a deed dated 26
April 1945 from B.B. Montague and Myra Montague to Beaufort Housing
Corporation, which purportedly transferred ownership of the landing
to Beaufort Housing Corporation. Therefore, plaintiffs asserted
Beaufort Housing Corporation owned the landing when it conveyed
lots to plaintiffs' predecessors in interest.
Elizabeth B. Wilson's chain of title dated back to a 20 July
1946 deed from Beaufort Housing Corporation. This deed purported
to convey "all of lot 6 in Block 5 as shown on the plat entitled
'Beaufort [Housing] Corporation[,]' same having been prepared in
February 1945, and recorded in Plat Book 1, page 226, of the
Carteret County Public Registry."
L. Jarvis Herring and Sally Herring traced their title back to
a 19 April 1946 deed from Beaufort Housing Corporation. This deed
purported to convey "[a]ll of Lot #3, Block 4, as shown on the plat
entitled 'Property of Beaufort [Housing] Corporation[,]' same
having been prepared in February 1945, and recorded in Book 1, Page
226, Carteret County Public Registry."
Suzanne Hill traced her chain of title back to a deed from
Beaufort Housing Corporation dated 7 February 1946. This deed
purported to convey "all of lot #26, Block 5, as shown on the plat
entitled 'Property of Beaufort [Housing] Corporation[,]' same
having been prepared in February 1945, and recorded in Plat Book 1,
Page 226, Carteret County Public Registry."
Plaintiffs introduced a deed from Louis Dorme and Ruby B.Dorme to Gene W. Morrison and V. Lorrayne Morrison, dated 20
January 1972. This deed purported to convey title to "Lot Number
Three (3), in Block Six (6), according to that plan entitled
'Beaufort [Housing] Corporation,' same being prepared in February,
1945, and recorded in Map Book 1, at page 226, Carteret County
At the conclusion of plaintiffs' evidence, defendant moved for
a directed verdict pursuant to Rule 50 of the North Carolina Rules
of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 50 (2003). The
trial court granted defendant's motion as to all plaintiffs except
Lawrence B. Wilson, Jr., Elizabeth B. Wilson, L. Jarvis Herring,
Sally Herring and Suzanne Hill (remaining plaintiffs). In support
of its ruling, the trial court determined that the North Carolina
Real Property Marketable Title Act (Marketable Title Act) did not
apply because of the exception to the Marketable Title Act at N.C.
Gen. Stat. § 47B-3(3) (the possession exception).
Defendant presented his evidence as to remaining plaintiffs.
Defendant's evidence was followed by a rebuttal from remaining
plaintiffs. At the conclusion of all the evidence, defendant
renewed his Rule 50 motion for a directed verdict. The trial court
granted defendant's motion as to remaining plaintiffs. The trial
court orally stated the bases for its ruling. First, the trial
court reiterated its ruling that the Marketable Title Act did not
apply by virtue of the possession exception and directed a verdict
for defendant on that ground. Second, the trial court also
directed a verdict for defendant on the basis that remainingplaintiffs never established the on-the-ground location of the
landing in accordance with Day v. Godwin, 258 N.C. 465, 128 S.E.2d
Lawrence B. Wilson, Jr. dismissed his appeal on 22 November
2004. Elizabeth B. Wilson, L. Jarvis Herring, Sally Herring,
Suzanne Hill and Gene W. Morrison (hereinafter plaintiffs) appeal.
On appeal, plaintiffs assign error to the trial court's grant
of defendant's motion for directed verdict as to Gene W. Morrison
at the close of plaintiffs' evidence. Plaintiffs also assign error
to the trial court's grant of defendant's motion for directed
verdict as to Elizabeth B. Wilson, L. Jarvis Herring, Sally
Herring, and Suzanne Hill at the close of all the evidence.
When ruling on a motion for a directed verdict, a trial court
must "consider the evidence in the light most favorable to the
non-movant, and determine whether the evidence is sufficient as a
matter of law to be submitted to the jury." Town of Highlands v.
Edwards, 144 N.C. App. 363, 366, 548 S.E.2d 764, 766, disc. review
denied, 354 N.C. 74, 553 S.E.2d 212 (2001). The non-movant "is
entitled to the benefit of every reasonable inference which may be
legitimately drawn from the evidence, and all evidentiary conflicts
must be resolved in favor of the nonmoving party." Merrick v.
Peterson, 143 N.C. App. 656, 661, 548 S.E.2d 171, 175, disc. review
denied, 354 N.C. 364, 556 S.E.2d 572 (2001). The trial court
should deny the motion "if there is more than a scintilla of
evidence supporting each element of the nonmovant's case." Freese
v. Smith, 110 N.C. App. 28, 33-34, 428 S.E.2d 841, 845 (1993). "Under this standard, this Court must determine whether [the]
plaintiff's evidence, when considered in the light most favorable
to [the] plaintiff, was legally sufficient to withstand [the]
defendants' motion for a directed verdict as to [the] plaintiff's
claims." Merrick, 143 N.C. App. at 661, 548 S.E.2d at 175.
Pursuant to N.C. Gen. Stat. § 41-10 (2003), "[a]n action may
be brought by any person against another who claims an estate or
interest in real property adverse to him for the purpose of
determining such adverse claims[.]" In order to establish a prima
facie case for removing a cloud on title, two requirements must be
satisfied: "(1) the plaintiff must own the land in controversy, or
have some estate or interest in it; and (2) the defendant must
assert some claim in the land adverse to [the] plaintiff's title,
estate or interest." Hensley v. Samel, 163 N.C. App. 303, 307, 593
S.E.2d 411, 414 (2004) (citing Chicago Title Ins. Co. v.
Wetherington, 127 N.C. App. 457, 461, 490 S.E.2d 593, 597 (1997),
disc. review denied, 347 N.C. 574, 498 S.E.2d 380 (1998)).
"'[O]nce a plaintiff establishes a prima facie case for removing a
cloud on title, the burden rests upon the defendant to establish
that his title to the property defeats the plaintiff's claim.'"
Id. (quoting Wetherington, 127 N.C. App. at 461, 490 S.E.2d at
 Plaintiffs argue the trial court erred in ruling that
plaintiffs could not rely on the Marketable Title Act to prove
their prima facie
interests in the landing and in grantingdefendant's motions for directed verdict on that ground. The trial
court ruled that plaintiffs could not use the Marketable Title Act
to prove their interests because defendant was and had been in
possession of the real property at the time the suit was filed.
However, the trial court erroneously applied the possession
exception to the Marketable Title Act.
The purpose of the Marketable Title Act is to facilitate the
alienability and marketability of real property. N.C. Gen. Stat.
§ 47B-1(1) (2003). The Marketable Title Act accomplishes this goal
by allowing the establishment of marketable title upon a showing of
a thirty-year chain of title to real property, "with nothing
appearing of record . . . purporting to divest such claimant of the
estate claimed." N.C. Gen. Stat. § 47B-2(b) (2003). This showing
of marketable title is "prima facie evidence that such person owns
title to the real property described in his record chain of title."
N.C. Gen. Stat. § 47B-2(d) (2003).
Once such a claimant establishes marketable title, the
Marketable Title Act operates to extinguish "all rights, estates,
interests, claims or charges whatsoever, the existence of which
depends upon any act, title transaction, event or omission that
occurred prior to such 30-year period[,]" except those listed in
N.C. Gen. Stat. § 47B-3. N.C. Gen. Stat. § 47B-2(c) (2003). The
possession exception under N.C. Gen. Stat. § 47B-3(3) is one such
exception. Under that exception, "[s]uch marketable record title
shall not affect or extinguish the following rights: . . . (3)
Rights, estates, interests, claims or charges of any person who isin present, actual and open possession of the real property so long
as such person is in such possession." N.C. Gen. Stat. § 47B-3(3)
Our Supreme Court interpreted the possession exception to the
Marketable Title Act in Heath v. Turner
, 309 N.C. 483, 308 S.E.2d
244 (1983). In Heath
, the plaintiffs and the defendants
established competing marketable titles to various interests in the
lots in controversy. Id
. at 491-92, 308 S.E.2d at 249. However,
the defendants were in possession of the lots at the time the
plaintiffs filed their action to quiet title. Id
. at 493, 308
S.E.2d at 250. The defendants argued that they were "entitled to
all of the interests" in the lots. Id
. at 491, 308 S.E.2d at 248.
The Court held that
the fact that the defendants were in
possession of the lands in question serves as
a defense against a competing marketable
record title but does not, under the
Marketable Title Act, establish title in the
defendants. Stated differently, whatever
rights the defendants have because they are in
possession of the property are not taken away
by a competing marketable record title but the
mere fact of possession by the defendants does
not alone establish their ownership of the
land. It (possession) only protects whatever
ownership the defendants already have on the
date that marketability is to be determined.
. at 493, 308 S.E.2d at 249-50.
, at the time the plaintiffs filed their action, the
defendants were in possession of the lots in controversy and had
acquired title to an 8/11 undivided interest in the lots by adverse
. at 493, 308 S.E.2d at 250. Therefore, "even if
the plaintiffs had a marketable record title on that date under theReal Property Marketable Title Act, it could not affect or
extinguish the defendants' title previously acquired by adverse
possession because that title is an interest protected by G.S. §
. However, the defendants' possession "[did] not
give them any title which they did not already have." Id
. at 494,
308 S.E.2d at 250. The plaintiffs retained title to a 3/11
undivided interest despite the defendants' possession. Id
. at 497,
308 S.E.2d at 252.
As illustrated by Heath
, the possession exception does not
operate automatically to defeat a thirty-year marketable record
title. The Court held that possession "only protect[ed] whatever
ownership the defendants already [had] on the date that
marketability [was] . . . determined." Id
. at 493, 308 S.E.2d at
249-50. A possessor of real property has a burden to establish the
possessor's rights in the property in controversy because mere
possession "does not . . . establish title[.]" Id
. at 493, 308
S.E.2d at 249. The possession exception will only operate to
defeat a competing marketable title if the possessor carries the
burden of showing the possessor owns the real property.
It is well settled that a lot owner who purchases real
property in reliance on a plat depicting certain amenities obtains
an interest in those amenities.
Our Supreme Court has held that
[w]here lots are sold and conveyed by
reference to a map or plat which represents a
division of a tract of land into streets,
lots, parks and playgrounds, a purchaser of a
lot or lots acquires the right to have the
streets, parks and playgrounds kept open for
his reasonable use, and this right is not
subject to revocation except by agreement.
Realty Co. v. Hobbs
, 261 N.C. 414, 421, 135 S.E.2d 30, 35-36 (1964)
(citing Steadman v. Pinetops
, 251 N.C. 509, 112 S.E.2d 102 (1960)
and Conrad v. Land Co.
, 126 N.C. 776, 36 S.E. 282 (1900)). The
Court further stated,
It is said that such streets, parks and
playgrounds are dedicated to the use of lot
owners in the development. In a strict sense
it is not a dedication, for a dedication must
be made to the public and not to a part of the
public. It is a right in the nature of an
, 261 N.C. at 421, 135 S.E.2d at 36 (internal citation
In the present case, Elizabeth B. Wilson, L. Jarvis Herring,
Sally Herring and Suzanne Hill introduced exhibits to establish
their respective chains of title of more than thirty years from
Beaufort Housing Corporation. Each of their chains of title
contained a deed from Beaufort Housing Corporation which referenced
the plat entitled, "Property of Beaufort [Housing] Corporation."
The plat depicted Lot 1 Block 6 of the subdivision as a "Landing
for Lot owners." See Barton v. White
, 173 N.C. App. 717, 720, ___
S.E.2d ___, ___ (2005) (noting that express words on a recorded
plat can raise a justiciable issue as to a grantor's intent to
create an easement appurtenant). Plaintiffs also introduced a deed
purporting to show that Beaufort Housing Corporation owned the real
property designated as the landing when it conveyed lots to
plaintiffs' predecessors in interest. Therefore, plaintiffs
established prima facie
ownership of an easement in the landing
pursuant to Hobbs
and the Marketable Title Act. The burden shiftedto defendant to
establish that his title to the property defeated
plaintiffs' claims. Hensley
, 163 N.C. App. at 307, 593 S.E.2d at
The possession exception did not operate to preclude
plaintiffs from relying on the Marketable Title Act to establish
ownership. Defendant's possession only protected
whatever interest defendant owned at the commencement of the
action, which was the date the marketability of plaintiffs' title
was determined. See Heath
, 309 N.C. at 493, 308 S.E.2d at 250
(noting that marketability is determined as of the date the action
was commenced). It was within the province of the jury to
determine whether plaintiffs owned interests in the landing, and if
so, whether defendant owned an interest which defeated plaintiffs'
interests. Therefore, the trial court erred by granting
defendant's motion for directed verdict as to Elizabeth B. Wilson,
L. Jarvis Herring, Sally Herring, and Suzanne Hill at the close of
all the evidence.
Gene W. Morrison, however, offered only one deed, dated 20
January 1972, into evidence to establish his title. Plaintiffs
commenced their action on 14 July 2000, which is the date that
marketability was determined. Therefore, Gene W. Morrison did not
offer a thirty-year connected chain of title under the Marketable
Title Act and failed to demonstrate prima facie
ownership of an
easement in the landing. Accordingly, the trial court properly
granted defendant's motion for directed verdict as to Gene W.
 Plaintiffs also argue the trial court erroneously granted
defendant a directed verdict at the close of all the evidence on
the ground that plaintiffs failed to locate the description of the
landing contained in their chains of title on the earth's surface.
In addition to plaintiffs' burden of showing prima facie
title to the landing, plaintiffs also had the burden of
establishing the on-the-ground location of the landing. Chappell
, 113 N.C. App. 626, 629, 439 S.E.2d 802, 805 (1994).
Where a plaintiff relies on deeds as proof of title, a plaintiff
must "'locate the land by fitting the description in the deeds to
the earth's surface.'" Id
. (quoting Andrews v. Bruton
, 242 N.C.
93, 96, 86 S.E.2d 786, 788 (1955)).
In Batson v. Bell
, 249 N.C. 718, 719, 107 S.E.2d 562, 563
(1959), our Supreme Court noted:
The rules applicable to the ascertainment
of boundaries trace back to the early history
of the State. They are firmly established by
numerous consistent decisions.
What are the boundaries is a matter of
law to be determined by the [trial] court from
the description set out in the conveyance.
Where those boundaries may be located on the
ground is a factual question to be resolved by
In Paper Company v. Jacobs
, 258 N.C. 439, 442, 128 S.E.2d 818, 820
(1963), our Supreme Court held that if there is any competent
evidence locating a tract of land on the ground, the issue of
location becomes a jury question and a directed verdict is not
In the present case, plaintiffs presented sufficientcompetent evidence establishing the on-the-ground location of the
landing. Therefore, the trial court erred by directing a verdict
for defendant on that basis at the close of all the evidence.
In Poe v. Bryan
, 12 N.C. App. 462, 183 S.E.2d 790 (1971), our
Court held that the plaintiffs offered sufficient evidence to
locate the description of the disputed property on the ground. Id
at 468, 183 S.E.2d at 794. In Poe
, one of the plaintiffs testified
that she had been familiar with the boundaries of the tract of land
since she was a child. Id
. at 466, 183 S.E.2d at 792. She
testified that she knew where the lines and boundaries were located
and testified about their location. Id
. at 466, 183 S.E.2d at 792-
93. Our Court held that "the testimony of the feme plaintiff and
the [trial] court appointed surveyor constitutes sufficient
evidence that the description of the . . . deed fits the land and
embraces the land in controversy." Id
. at 467, 183 S.E.2d at 793.
Likewise, in the present case, plaintiffs presented abundant
testimony from plaintiffs themselves and from other witnesses who
were familiar with the location of the landing. Ronald Quidley, an
owner of property in the subdivision, testified that he had been
familiar with the landing since he was a child. He testified that
the landing was located at the south end of Seaview Street and
served as the subdivision swimming area. Gene W. Morrison
testified that he lived one lot removed from the landing and that
he mowed the grass on the landing for about ten years. Sally
Herring testified that she had lived on Front Street, a few lots
away from the landing, since 1947. She further testified that thelanding on Front Street served as the subdivision swimming area.
Suzanne Hill also testified that she was familiar with the landing.
She testified there was a dock on the landing when she moved to the
subdivision in 1968 and that the children in the subdivision used
the lot to fish and swim in Taylor's Creek. Plaintiffs offered
this evidence to establish that the landing was bounded on the
north by Front Street, on the south by Taylor's Creek and on the
east and west by the extension of the boundaries of Seaview Street
toward Taylor's Creek.
The present case is also analogous to Jacobs
. In Jacobs
plaintiff, as in this case, had the burden of showing the on-the-
ground location of the claimed real property. Jacobs
, 258 N.C. at
441, 128 S.E.2d at 820. However, in Jacobs
the plaintiff "offered
no witness who testified to having surveyed the boundaries set out
in the several deeds under which [the plaintiff's predecessor in
interest] claimed. It did not attempt to establish any of the
corners called for in those instruments. The surveyor testified he
merely plotted the lines on his map." Id
. at 442, 128 S.E.2d at
820. Nonetheless, the question of the on-the-ground location of
the real property was properly left to the jury. Id
. at 444, 128
S.E.2d at 822.
In the present case, plaintiffs presented the testimony of
James W. Thompson (Mr. Thompson), an attorney specializing in real
property law. Mr. Thompson testified that plaintiffs' exhibit
number six was a deed which conveyed the landing to Beaufort
Housing Corporation. Mr. Thompson plotted the landing on the platby indicating where the landing was located on the plat.
Defendant later presented the testimony of James L. Powell
(Mr. Powell), a professional land surveyor. Mr. Powell testified
that in 1993 he surveyed the real property defendant claimed to
own. On cross-examination, Mr. Powell testified that the area he
surveyed completely encompassed the landing, described as Lot 1 on
Page 226 of Map Book 1 in the Carteret County Registry. The
testimony of Mr. Powell, defendant's own surveyor, clearly showed
that the landing, Lot 1, was located on the earth's surface at the
south end of Seaview Street.
, our Supreme Court held that the plaintiff failed to
locate the disputed real property on the ground. Day
258 N.C. at
470-71, 128 S.E.2d at 818. The Court held that a plaintiff cannot
meet its burden on this issue by merely superimposing a plat of the
property onto an aerial photograph. Id
. at 470, 128 S.E.2d at 818.
The Court reasoned that because the plaintiff lacked personal
knowledge about the location of the disputed boundaries and because
the plaintiff did not conduct a survey of the real property, the
plaintiff failed to locate the real property on the ground. Id
470, 128 S.E.2d at 817-18.
In the present case, plaintiffs presented the testimony of
Loie Priddy (Mr. Priddy), the Chief of the Coastal Survey Unit for
the Unit Survey Section of the North Carolina Department of Natural
Resources. Mr. Priddy testified that he superimposed the plat onto
an aerial photograph of the region encompassing the landing.
However, plaintiffs did not rely solely on the testimony of Mr.Priddy. As a result of the additional testimony reviewed above,
the issue of where the landing was located upon the earth's surface
was an issue for the jury. Accordingly, the trial court erred by
directing a verdict for defendant on this basis.
Affirmed in part; reversed and remanded in part.
Judges McCULLOUGH and JACKSON concur.
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