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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.
WENDY G. BOGGESS and husband, SCOTT BOGGESS, Plaintiffs, v. RALPH
SPENCER and wife, BETTY SPENCER, R.L. SPENCER, JR., SUE S.
LUFFMAN and husband, ARVIL LUFFMAN, Defendants
Filed: 4 October 2005
1. Civil Procedure_directed verdict_close of plaintiffs' evidence
Defendants waived their motion for a directed verdict made at the close of plaintiffs'
evidence by presenting evidence.
2. Civil Procedure_directed verdict_standard of review
The standard of review for a denial of directed verdict is whether the evidence,
considered in the light most favorable to the non-moving party, is sufficient to be submitted to
3. Easements_necessity_sufficiency of evidence to go to jury
The trial court did not err by refusing defendants' motion for a directed verdict at the
close of all the evidence on the question of easement by necessity. An earlier conveyance had
severed title to plaintiffs' property from that of defendants; no evidence shows public road access
other than by a road over defendants' property; and the road over defendants' property had been
used by all of plaintiffs' predecessors in title as a means of ingress and egress.
4. Appeal and Error_preservation of issues_review limited to questions in briefs
The Court of Appeals did not consider the question of whether there was sufficient
evidence of an easement by prescription to go to the jury where the jury did not reach the issue
and defendants did not argue the issue on appeal. Review is limited to questions presented in the
Appeal by defendants from judgment entered 21 June 2004 by
Judge David V. Byrd in Wilkes County District Court. Heard in
the Court of Appeals 14 September 2005.
McElwee Firm, PLLC, by John M. Logsdon, for plaintiffs-
Franklin Smith, for defendants-appellants.
Ralph and Betty Spencer, R.L. Spencer, Jr., Sue S. and Arvil
Luffman (collectively, defendants) appeal from judgment entered
21 June 2004 after a jury found Wendy G. and Scott Boggess
(collectively, plaintiffs) to have an easement by necessity
over defendants' property. We affirm.
Plaintiffs are the owners of a parcel of land containing
approximately 4.09 acres located in Wilkes County. Defendants are
the owners of a parcel adjoining plaintiffs' property. The
relevant conveyances with respect to these properties are as
1) By deed dated 12 April 1933, J.C. and Maggie Spencer
conveyed a northern portion of their property consisting of 3.5
acres to W.F. and Callie Gilliam. On the same day, W.F. and Callie
Gilliam conveyed a southern portion of their property consisting of
3.5 acres to Lionel Spencer and wife, Irene Spencer. This property
is the subject of this appeal.
2) By deed dated 14 January 1943, J.C. and Maggie Spencer
conveyed the remainder of their property to Lionel Spencer and
wife, Irene Spencer. Following this conveyance, Lionel and Irene
Spencer owned both the ninety-seven acre parcel and the adjacent
3.5 acre parcel acquired from W.F. and Callie Gilliam.
3) By deed dated 8 October 1943, Lionel and Irene Spencer
conveyed the 3.5 acre parcel back to W.F. and Callie Gilliam.
4) By a series of mesne conveyances, the 3.5 acre parcel at
issue was acquired by Henry Harp. Henry Harp conveyed the parcelto plaintiff Wendy Boggess on 11 August 1989. A new survey was
performed prior to the 11 August 1989 conveyance and the original
3.5 acres was increased to 4.09 acres. The identical property is
described in all previous deeds in the chain of title as the 3.5
acre parcel originally deeded by W.F. and Callie Gilliam to Lionel
and Irene Spencer.
Plaintiffs' property does not adjoin a public road.
Defendants' property adjoins Secondary Road 2026 (Murray Road),
but its primary means of access is along a gravel road known as the
Old Ozark Road, which runs through the property of others. The
sole issue at trial was whether plaintiffs have a right-of-way
along an existing gravel road which extends from plaintiffs'
property, across the creek, and through defendants property, to Old
Ozark Road, which connects with Murray Road.
There is no written, recorded right-of-way describing this
road. Plaintiffs retained an attorney to search the title prior to
purchasing the property and were advised no written right-of-way
was being acquired. Plaintiffs were also advised that the property
had been conveyed thirteen previous times and none of the deeds
contained a right-of-way description. Plaintiffs did not discuss
the right-of-way with defendants prior to their purchase of the
property. The existing gravel road served as ingress and egress to
plaintiffs' property across defendants' property and was used by
all previous owners of plaintiffs' property.
In or about 2000, plaintiff Scott Boggess approached defendant
Ralph Spencer and offered to pay $3,000.00 for a written right-of-way, which defendant Ralph Spencer rejected. Shortly thereafter,
defendants erected a sign along the gravel road stating, Right of
Way by Permission Only _ The Spencers. Defendants did not revoke
any oral consent for plaintiffs to use the road. As a result of
the placement of the sign, plaintiffs were unable to sell their
property to at least two prospective buyers.
Plaintiffs filed suit on 3 October 2002 and the case was heard
on 27 April 2004. Defendants moved for a directed verdict pursuant
to N.C. Gen. Stat. § 1A-1, Rule 50. The trial court reserved its
ruling on this motion until the close of all the evidence.
Defendants renewed their motion for a directed verdict at the close
of all the evidence and the trial court denied their motion.
The issues presented to the jury were whether plaintiffs were
entitled to an easement by necessity across defendants' property
and whether plaintiffs were entitled to an easement by prescription
across defendants' property. Although the issue of prescriptive
easement went to the jury in accordance with the jury instructions
and the verdict sheet, the jury did not reach this issue. The jury
returned a verdict in favor of plaintiffs finding that plaintiffs
were entitled to an easement by necessity across defendants'
property that existed along the gravel road. Defendants appeal.
The issue on appeal is whether the trial court erred in
failing to grant defendants' motion for a directed verdict at the
close of plaintiffs' evidence and at the close of all evidence.
III. Directed VerdictA. At the Close of Plaintiffs' Evidence
 Defendants first contend the trial court erred in denying
their motion for a directed verdict at the close of plaintiffs'
evidence. We disagree.
When a motion is made for directed verdict at
the close of the plaintiff's evidence, the
trial court may either rule on the motion or
reserve its ruling on the motion. By offering
evidence, however, a defendant waives its
motion for directed verdict made at the close
of plaintiff's evidence. Accordingly, if a
defendant offers evidence after making a
motion for directed verdict, any subsequent
ruling by the trial judge upon defendant's
motion for directed verdict must be upon a
renewal of the motion by the defendant at the
close of all the evidence, and the judge's
ruling must be based upon the evidence of both
plaintiff and defendant.
Cox v. Steffes, 161 N.C. App. 237, 242, 587 S.E.2d 908, 912 (2003)
(quoting Stallings v. Food Lion, Inc., 141 N.C. App. 135, 136-37,
539 S.E.2d 331, 332 (2000)). Defendants moved for directed verdict
at the close of plaintiffs' evidence. The trial court reserved its
ruling on the motion and defendants proceeded to present evidence.
By presenting evidence, defendants waived the motion for directed
verdict made at the close of plaintiffs' evidence. Id. This
assignment of error is dismissed.
B. At the Close of All Evidence
 Defendants next contend the trial court erred in failing
to grant defendants' motion for directed verdict at the close of
all evidence. In deciding whether to grant or deny a motion for
directed verdict, the trial court must accept the non-movant's
evidence as true and view all the evidence in the light mostfavorable to him. Williamson v. Liptzin, 141 N.C. App. 1, 9-10,
539 S.E.2d 313, 318-19 (2000) (citations omitted). The trial court
should deny the motion if there is more than a scintilla of
evidence supporting each element of the non-movant's claim. Id.
at 10, 539 S.E.2d at 319. The standard of review of a denial of a
motion for directed verdict is whether the evidence, considered in
a light most favorable to the non-moving party, is sufficient to be
submitted to the jury. Di Frega v. Pugliese, 164 N.C. App. 499,
505, 596 S.E.2d 456, 461 (2004) (citation omitted).
IV. Easement by Necessity
Defendants argue the trial court erred in denying their
motion for directed verdict on the issue of whether plaintiffs have
an easement by necessity across defendants' property. We disagree.
A way of necessity arises when one grants a
parcel of land surrounded by his other land,
or when the grantee has no access to it except
over the land retained by the grantor or land
owned by a stranger. An implied easement of
necessity arises only by implication in favor
of a grantee and his privies as against a
grantor and his privies.
Wilson v. Smith, 18 N.C. App. 414, 417, 197 S.E.2d 23, 25 (1973)
(citations omitted). It is not necessary that the party claiming
the easement show absolute necessity. An easement by necessity may
arise even where other inconvenient access to the parcel in
It is sufficient to show such physical
conditions and such use as would reasonably
lead one to believe that grantor intended
grantee should have the right to continue to
use the road in the same manner and to the
same extent which his grantor had used it,
because such use was reasonably necessary tothe fair, full, convenient and
comfortable, enjoyment of his property.
Smith v. Moore, 254 N.C. 186, 190, 118 S.E.2d 436, 439-40 (1961)
(internal quotations omitted).
Lionel and Irene Spencer acquired the 3.5 acre parcel now
owned by plaintiffs from W.F. and Callie Gilliam by deed dated 12
April 1933. The parcel had no access to a public road. By deed
dated 14 January 1943, Lionel and Irene Spencer acquired an
adjoining ninety-seven acre parcel from J.C. and Maggie Spencer.
This is the same servient parcel over which the easement at issue
runs. After that conveyance, Lionel and Irene Spencer owned both
the 3.5 acre parcel and the adjoining ninety-seven acre parcel.
Lionel and Irene Spencer conveyed the 3.5 acre parcel to W.F. and
Callie Gilliam by deed dated 8 October 1943. An easement by
necessity is created, if at all, upon severance of title from
common ownership. Broyhill v. Coppage, 79 N.C. App. 221, 226, 339
S.E.2d 32, 37 (1986). Title to plaintiffs' property was severed
from common ownership by the 8 October 1943 deed from Lionel and
Irene Spencer to W.F. and Callie Gilliam.
No evidence in the record shows W.F. and Callie Gilliam had
public road access to plaintiffs' parcel by means other than the
gravel road over defendants' property. The road over defendants'
property had been used by all of plaintiffs' predecessors in title
as a means of ingress and egress. Plaintiffs met their burden of
showing an easement by necessity arose upon the conveyance from
Lionel and Irene Spencer to W.F. and Callie Gilliam. Based upon
the evidence, the jury found Lionel and Irene Spencer intended W.F.and Callie Gilliam and their successors in title to have the right
to continue to use the road in the same manner and to the same
extent which plaintiffs' predecessors in title used it. Smith,
254 N.C. at 190, 118 S.E.2d at 439-40. This assignment of error is
V. Easement by Prescription
 Defendants also argued in their motion for directed
verdict that insufficient evidence was presented on the issue of
whether plaintiffs had an easement by prescription across
defendants' property. The jury did not reach this issue and
defendants failed to argue the issue of an easement by prescription
on appeal. Our review is limited to questions presented in the
briefs. N.C.R. App. P. 28(a) (2004). We do not consider this
Defendants waived their motion for directed verdict at the
close of plaintiffs' evidence by presenting evidence. The trial
court did not err in denying defendants' motion for directed
verdict at the close of all evidence. Sufficient evidence was
introduced to submit the issue to the jury of whether plaintiffs
acquired an easement by necessity over defendants' property. The
trial court's judgment is affirmed.
Judges HUNTER and STEELMAN concur.
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