Appeal by plaintiffs from judgment entered 17 March 2005 by
Judge Russell J. Lanier, III in Sampson County Superior Court.
Heard in the Court of Appeals 9 May 2006.
McLeod & Harrop, by Donald E. Harrop, Jr., for plaintiffs-
James D. Johnson, Jr.; and Woodruff, Reece & Fortner, by
Gordon C. Woodruff and Michael J. Reece, for defendants-
Plaintiffs Jerry G. Jernigan, George J. Jernigan, Jr., and
Learry L. Warren appeal from a jury verdict and resulting judgment
concluding that defendants Laurastine Lee Rayfield, James E.
Rayfield, Sr., Wilma Lee Albrecht, Robert Lee Albrecht, Loyde Earl
Herring, Sylvia K. Herring, Loyde Ray Herring, Javier E. Pacheco,
Michelle N. Pacheco, American General Finance, Inc., Wade Allen
Lewis, Cecil Lee Williford, Robert Eugerald Williford, and Sue
Jernigan-Smith acquired title to certain real estate by adverse
possession. On appeal, plaintiffs argue that defendants failed to
offer evidence of each of the elements of adverse possession, and
the trial court, therefore, erred in denying plaintiffs' motions
for both a directed verdict and judgment notwithstanding the
verdict. Because plaintiffs argued at trial only that defendants
failed to present sufficient evidence of their exclusive possession
of the property, our review is limited solely to that issue. Based
upon our review of the record, we hold defendants presented
sufficient evidence of exclusive use and, accordingly, the trial
court properly denied plaintiffs' motions.
In the early 1900s, Moses Lee and his wife, Lucy, owned a
large parcel of land consisting of over 180 acres in Sampson County
(the "Large Lot"). In 1912, the Lees deeded a two acre triangular
tract out of the Large Lot to Bud Jernigan and his heirs for use as
a private cemetery (the "Cemetery Lot"). The following two deed
transfers of the Large Lot, occurring in 1916 and 1925,
specifically excepted the Cemetery Lot from the property conveyed. Subsequent deed transfers, however, merely referenced the 1925 deed
without mentioning the Cemetery Lot.
The Cemetery Lot currently contains about eight gravestones.
1946 was the last year that anyone was buried in the Cemetery Lot;
that person's remains and headstone were, however, later moved to
another cemetery. Of the gravestones still in the Cemetery Lot,
the most recent burial occurred in 1907.
In 1954, defendants Laurastine Lee Rayfield and Wilma Lee
Albrecht acquired the Large Lot by a deed that, again, made no
mention of the Cemetery Lot and instead only referred back to the
1925 transfer. Rayfield and Albrecht managed the property as a
farm continuously from 1954 until 1995.
In 1995, Rayfield and Albrecht hired an auctioneer and a
surveyor, and the entire property _ including both the Large Lot
and the Cemetery Lot _ was split into smaller tracts to be sold.
One of the tracts, Lot 29, included all of the actual gravestones
and, like the original Cemetery Lot, was two acres in size. In an
effort, however, to increase the road frontage provided to other
lots, the boundaries of Lot 29 were different from those of the
original Cemetery Lot. As a result, Lots 19, 25, and 30 all
contained portions of the original Cemetery Lot. Lot 29 was later
conveyed to Sue Jernigan-Smith to be held in trust for use as the
Jernigan family burial ground. Lot 19 was conveyed to defendants
Javier E. Pacheco and Michelle N. Pacheco; Lot 25 to defendants
Loyde Earl Herring, Sylvia K. Herring, and Loyde Ray Herring; andLot 30 to defendants Cecil Lee Williford and Robert Eugerald
On 11 December 2002, plaintiffs filed a complaint in Sampson
County Superior Court alleging that they were the direct
descendants of Bud Jernigan and seeking a declaratory judgment that
they had superior title in the Cemetery Lot to that of any of the
defendants. In answer, defendants alleged that they had obtained
superior title of those portions of the Cemetery Lot not including
the actual burial plots through adverse possession. Defendants had
farmed the lot with the exception of a 25- to 30-foot area around
the gravestones. The case proceeded to trial and, on 23 February
2005, the jury rendered a verdict concluding that defendants had in
fact obtained title to Lots 19, 25, and 30 by adverse possession.
The trial court entered judgment accordingly, and plaintiffs timely
appealed to this Court.
 Plaintiffs first argue that the trial court erred by
denying their motions for a directed verdict and judgment
notwithstanding the verdict. When considering a motion for a
directed verdict, a trial court must view the evidence in the light
most favorable to the non-moving party, giving that party the
benefit of every reasonable inference arising from the evidence.
Clark v. Moore
, 65 N.C. App. 609, 610, 309 S.E.2d 579, 580 (1983).
Any conflicts and inconsistencies in the evidence must be resolved
in favor of the non-moving party. Davis & Davis Realty Co. v.
, 96 N.C. App. 306, 308-09, 385 S.E.2d 539, 541 (1989),disc. review denied
, 326 N.C. 263, 389 S.E.2d 112 (1990). If there
is more than a scintilla of evidence supporting each element of the
non-moving party's claim, the motion for a directed verdict should
be denied. Clark
, 65 N.C. App. at 610, 309 S.E.2d at 580-81. The
same standard applies to motions for judgment notwithstanding the
verdict. Smith v. Price
, 315 N.C. 523, 527, 340 S.E.2d 408, 411
At trial, a party is required to state the specific grounds
for the motion for a directed verdict, N.C.R. Civ. P. 50(a), and
this Court's review on appeal of the denial of that motion is
"limited to those grounds asserted by the moving party before the
trial court." Jones v. GMRI, Inc.
, 144 N.C. App. 558, 564, 551
S.E.2d 867, 872 (2001), cert. improvidently allowed
, 355 N.C. 275,
559 S.E.2d 787 (2002).
"Moreover, a 'motion for judgment
notwithstanding the verdict is technically only a renewal of the
motion for a directed verdict made at the close of all the
evidence, and thus [a] movant cannot assert grounds not included in
the motion for directed verdict.'" Id.
(alteration in original)
(quoting Lee v. Capitol Tire Co.
, 40 N.C. App. 150, 156, 252 S.E.2d
252, 256-57, disc. review denied
, 297 N.C. 454, 256 S.E.2d 807
With respect to the elements of a claim of adverse possession,
"'[o]ne may assert title to land embraced within the bounds of
another's deed by showing adverse possession of the portion claimed
for twenty years under known and visible lines and boundaries (G.S.
1-40), but his claim is limited to the area actually possessed, andthe burden is upon the claimant to establish his title to the land
in that manner.'" Dockery v. Hocutt
, 357 N.C. 210, 217-18, 581
S.E.2d 431, 436 (2003) (quoting Wallin v. Rice
, 232 N.C. 371, 373,
61 S.E.2d 82, 83 (1950)). See also
N.C. Gen. Stat. § 1-40 (2005)
(defining statutory time frame for adverse possession). Further,
the "possession must be 'open, notorious, and adverse.'" Dockery
357 N.C. at 218, 581 S.E.2d at 437 (quoting Wilson County Bd. of
Educ. v. Lamm
, 276 N.C. 487, 490, 173 S.E.2d 281, 283 (1970)).
"Successive adverse users in privity with prior adverse users can
tack successive adverse possessions of land so as to aggregate the
prescriptive period . . . ." Merrick v. Peterson
, 143 N.C. App.
656, 663, 548 S.E.2d 171, 176, disc. review denied
, 354 N.C. 364,
556 S.E.2d 572 (2001).
On appeal, plaintiffs assert that defendants failed to present
sufficient evidence of the following elements of adverse
possession: (1) that defendants' possession was under known and
visible lines; (2) that defendants' possession was open and
notorious; and (3) that defendants' possession was adverse and
exclusive. The transcript, however, reveals that, at trial,
plaintiffs argued only the insufficiency of the evidence as to the
exclusivity element. Consequently, the only issue preserved for
review in this Court with respect to adverse possession is whether
defendants presented at least a scintilla of evidence that they had
"exclusive possession of the property for the requisite statutory
period of twenty years." Lancaster v. Maple St. Homeowners Ass'n
156 N.C. App. 429, 438, 577 S.E.2d 365, 372, appeal dismissed anddisc. review denied in part
, 357 N.C. 251, 582 S.E.2d 272, aff'd
per curiam in part
, 357 N.C. 571, 597 S.E.2d 672 (2003).
(See footnote 1)
As was the case before the trial court, plaintiffs' sole
argument on appeal as to why defendants failed to present adequate
evidence of exclusive possession is that "cemeteries, because of
their unique nature, are occupied and possessed by the persons
actually buried in the ground . . . ." Plaintiffs contend that
defendants' occupation of the Cemetery Lot _ which encompassed more
than the actual burial plots _ was, therefore, "not exclusive," as
defendants necessarily shared the land with "actual . . .
deceased persons." Plaintiffs "concede [they] can find no case law
on point to support this theory . . . ."
For possession of property to be exclusive, "other people must
not make similar use of the land during the required statutory
period." McManus v. Kluttz
, 165 N.C. App. 564, 574, 599 S.E.2d
438, 446 (2004). Regarding the nature of the use required, actual
possession to the exclusion of others
"is denoted by the exercise of acts of
dominion over the land, in making the ordinary
use and taking the ordinary profits of which
it is susceptible in its present state
acts to be so repeated as to show that they
are done in the character of owner, in
opposition to right or claim of any other
person, and not merely as an occasional
New Covenant Worship Ctr. v. Wright
, 166 N.C. App. 96, 103-04, 601
S.E.2d 245, 251 (2004) (emphasis added) (quoting Locklear v.
, 159 N.C. 236, 237-38, 74 S.E. 347, 348 (1912)). Thus, the
exclusion element of adverse possession contemplates the exclusive
use of the ordinary functions of the type of land at issue, given
its present state. See, e.g.
, Stone v. Conder
, 46 N.C. App. 190,
198, 264 S.E.2d 760, 765 ("'[T]he acts relied upon to establish
[adverse] possession must always be as distinct as the character of
the land reasonably admits of
and be exercised with sufficient
continuity to acquaint the true owner with the fact that a claim of
ownership, in denial of his title is being asserted.'"
added; second alteration in original) (quoting Alexander v. Cedar
, 177 N.C. 137, 144-45, 98 S.E. 312, 315 (1919)), disc. review
, 301 N.C. 105 (1980).
Here, defendant Eugerald Williford testified that his father
had farmed the Cemetery Lot for Rayfield and Albrecht as a
sharecropper from the 1960s until the 1995 auction. Mr. Williford
explained that they had "farmed up to" a 25- to 30-foot area
directly surrounding the gravestones and even cleared the
gravestone area of brush every spring. There was no evidence that
plaintiffs made any use whatsoever of the Cemetery Lot during that
time. Moreover, defendants offered evidence that there had not
been a burial in the Cemetery Lot in nearly 60 years, and no one
(other than defendants) had been maintaining the graves in the lot.
Instead, as plaintiff Jerry O. Jernigan admitted at trial, the land
is now "grown up around the stones, mostly [with] briars." Thistestimony provides more than a scintilla of evidence that the
defendants made exclusive use of Lots 19, 25, and 30, in their
present ordinary use as farmland, for the requisite statutory
period. The trial court, therefore, properly denied the motions
for a directed verdict and for judgment notwithstanding the
 Plaintiffs also contend that the trial court erred by
improperly instructing the jury, in response to a question posed by
the jury, regarding the intent necessary to establish adverse
possession. Plaintiffs did not object to the judge's instruction
at trial, and, consequently, they have failed to preserve this
issue for appellate review. See
N.C.R. App. P. 10(b)(2) ("A party
may not assign as error any portion of the jury charge or omission
therefrom unless he objects thereto before the jury retires to
consider its verdict, stating distinctly that to which he objects
and the grounds of his objection . . . ."); Seafare Corp. v. Trenor
, 88 N.C. App. 404, 410, 363 S.E.2d 643, 649 (appellant could
not challenge on appeal trial court's supplemental instructions to
the jury when it did not object at trial to the instructions),
disc. review denied
, 322 N.C. 113, 367 S.E.2d 917 (1988). This
assignment of error is, therefore, overruled.
Judges WYNN and STEPHENS concur.