Appeal by plaintiffs from orders entered 16 May and 5 July
2005 by Judge Zoro J. Guice, Jr. in Watauga County Superior Court.
Heard in the Court of Appeals 6 June 2006.
Charles E. Clement and Jeffery M. Hedrick for plaintiffs-
di Santi Watson Capua & Wilson, by Anthony S. di Santi, for
Plaintiffs Gary and Henry Woodring appeal from two orders of
the superior court awarding summary judgment to defendants, Robert
K. Swieter, Sr., Steven J. Swieter, Rebecca Pierucci-Swieter,
Thomas Andrew Stahl, Virginia R. Stahl, Mark S. Swieter, Kimberly
Swieter, Robert K. Swieter, Jr., Elaine G. Swieter (collectively
"the Swieter defendants"), and Blue Ridge Mountain Spring Water
Company, Inc. ("the Water Company"). The trial court concluded
that defendants were entitled to: (1) an easement acrossplaintiffs' property for ingress and egress; and (2) an underground
easement to maintain a water pipeline for transporting spring water
from their property to a state road for sale. At oral argument
before this Court, plaintiffs conceded that the Swieter defendants
have an easement for ingress and egress. As a result, the primary
issue remaining on appeal is whether the trial court properly
concluded, as a matter of law, that defendants have acquired an
easement for their waterline.
Because the evidence establishes that Henry Woodring did not,
as of the filing of the lawsuit, own any of the property over which
the claimed easements run, we dismiss plaintiff Henry Woodring's
appeal for lack of standing. With respect to the pipeline
easement, we hold that the trial court erred in granting summary
judgment to defendants. The evidence in the record establishes no
basis upon which defendants are entitled to an easement for their
pipeline. Defendants were, however, entitled to summary judgment
on plaintiff Gary Woodring's claims for trespass, nuisance, unjust
enrichment, and unfair trade practices. Accordingly, we dismiss in
part, affirm in part, and reverse and remand in part.
This case involves six pieces of real estate and one right of
way. Three of the real estate parcels are presently owned by
plaintiffs: a 23.5 acre tract owned jointly by plaintiffs Gary and
Henry Woodring; a 28.62 acre tract owned solely by plaintiff GaryWoodring; and a 2 acre tract also owned solely by plaintiff Gary
Woodring. These three tracts adjoin to create a rough vertical
rectangle (the "Woodring Tract").
The Swieter defendants own three large adjoining parcels that
form a rough "horseshoe" around the west, north, and east sides of
the Woodring Tract (the "Swieter Tract"). The Swieter Tract is
comprised of: a 50 acre parcel, adjoining the west side of the
Woodring Tract and extending northward; a 43.941 acre parcel,
adjoining the north side of the Woodring Tract; and a 51.645 acre
parcel extending about one third of the way down the eastern side
of the Woodring Tract.
State Road 1335 is located south of both the Woodring and
Swieter Tracts. Access to the Swieter Tract is provided by "Creek
Road," which runs north/south between the lower western corner of
the easternmost Swieter parcel and State Road 1335. As Creek Road
heads south from the Swieter Tract, it curves slightly west into
the Woodring Tract, traveling through it until reaching State Road
Although plaintiffs once resided on the Woodring Tract, they
left North Carolina and moved to Texas in 1971. In 1978, certain
members of the Swieter family acquired the 43.941 acre and 51.645
acre parcels of the Swieter Tract from their predecessors in
interest, the Gilleys. The deed for this transaction included a
conveyance of all "right, title and interest" the Gilleys had in
any rights of way leading to the Swieter Tract. The parties agree
that this conveyance refers to Creek Road, and, at oral argument,plaintiffs conceded that this did in fact convey a valid roadway
easement, appurtenant to the Swieter Tract, over Creek Road.
Shortly after acquiring the property in 1978, the Swieter
family improved Creek Road, which was at that time substantially
washed out, overgrown, and unreachable by car. The Swieters have
since used Creek Road continuously as their only means of access to
and from State Road 1335.
In 1991, certain members of the Swieter family formed the
Water Company to sell natural spring water found on the Swieter
Tract. In 1992, the members of the Swieter family with ownership
interests in the Water Company executed two easements to the Water
Company: one granting access to the Swieter Tract via Creek Road
and the other "for the purpose of installing, inspecting,
maintaining and repairing a potable water line" along Creek Road.
An underground waterline was subsequently installed along
Creek Road to transmit water from the Swieter Tract to a filling
station installed by the Swieters pursuant to a lease on a third
party's property near the State Road. During this project, the
Swieters also improved Creek Road by widening the road and adding
more gravel and culverts to facilitate proper maintenance.
The Water Company leased a 10 acre portion of the northern
43.941 acre parcel of the Swieter Tract in 1994. Since 1992, the
Water Company has continuously inspected, maintained, and repaired
Creek Road and piped water through the underground waterline.
In 1998, plaintiff Henry Woodring returned to North Carolina
for the first time since 1971 and discovered defendants'improvements and alterations on Creek Road. On 6 May 2004,
plaintiffs filed suit against defendants in Watauga County Superior
Court, alleging trespass, unjust enrichment, and unfair trade
practices. Following discovery, the parties filed cross-motions
for summary judgment, and, on 16 May 2005, Judge Zoro J. Guice, Jr.
denied both plaintiffs' and defendants' motions with respect to the
waterline easement along Creek Road, but awarded defendants summary
judgment "as to a roadway easement for ingress and egress."
Following a motion by plaintiffs to reconsider, however, Judge
Guice also awarded defendants summary judgment "as to a waterline
easement running along the roadway easement." Plaintiffs timely
appealed to this Court.
 We first address defendants' contentions related to
plaintiff Henry Woodring's standing. Standing "refers to whether
a party has a sufficient stake in an otherwise justiciable
controversy so as to properly seek adjudication of the matter."
Neuse River Found., Inc. v. Smithfield Foods, Inc.
, 155 N.C. App.
110, 114, 574 S.E.2d 48, 51 (2002), disc. review denied
, 356 N.C.
675, 577 S.E.2d 628 (2003). "'If a party does not have standing to
bring a claim, a court has no subject matter jurisdiction to hear
the claim.'" Coker v. DaimlerChrysler Corp.
, 172 N.C. App. 386,
391, 617 S.E.2d 306, 310 (2005) (quoting Estate of Apple v.
Commercial Courier Express, Inc.
, 168 N.C. App. 175, 177, 607
S.E.2d 14, 16, disc. review denied
, 359 N.C. 632, 613 S.E.2d 688
(2005)), aff'd per curiam
, 360 N.C. 398, 627 S.E.2d 461 (2006). Asis generally the case with issues impacting our subject matter
jurisdiction, the issue of standing may be raised for the first
time on appeal. Town of Spruce Pine v. Avery County
, 123 N.C. App.
704, 710, 475 S.E.2d 233, 237 (1996), rev'd on other grounds
N.C. 787, 488 S.E.2d 144 (1997).
Defendants contend Henry Woodring lacked any interest in the
Woodring Tract on the date plaintiffs brought this action.
Standing is assessed at the time the complaint is filed. Messer v.
Town of Chapel Hill
, 346 N.C. 259, 260, 485 S.E.2d 269, 270 (1997).
Henry deeded his interest in the 2 acre portion of the Woodring
Tract to Gary Woodring in November 1998 and subsequently
quitclaimed his interests in the 28.62 acre and 23.5 acre parcels
to Gary on 3 July 2003. Plaintiffs Henry and Gary Woodring then
jointly filed this suit on 6 May 2004. As Henry had conveyed any
and all interest in the Woodring Tract to Gary prior to the filing
of the complaint, Henry lacked standing to bring this action. See
Beachcomber Props., L.L.C. v. Station One, Inc.
, 169 N.C. App. 820,
824, 611 S.E.2d 191, 194 (2005) (plaintiff did not have standing
when it neither owned nor had contracted to purchase any portion of
disputed real property).
Henry nonetheless argues that he had standing because Henry
and Gary meant for the 3 July 2003 quitclaim deed to convey
separate real property unrelated to this action, and the
quitclaim's inclusion of his portions of the Woodring Tract was
purely accidental. Plaintiffs point to the fact that, on 15 April
2005, they filed a correction deed to this effect. In the absence of some other fatal defect, deeds containing
mutual mistakes are merely voidable and not void. See
23 Am. Jur.
§ 191 (2002) ("Mistake renders a deed voidable only. The
deed, in other words, conveys title to the grantee therein . . .
."). See also Mock v. Mock
, 77 N.C. App. 230, 231, 334 S.E.2d 409,
409 (1985) ("[A] written instrument may be reformed
on the grounds
of mutual mistake . . . ." (emphasis added)). Such deeds are,
therefore, valid until challenged. See Daniels v. Montgomery Mut.
, 320 N.C. 669, 676, 360 S.E.2d 772, 777 (1987) (noting
that a void order is "'a nullity and may be attacked . . . or may
simply be ignored
,'" whereas "'a voidable order stands until it is
'" (emphases added) (quoting State v. Sams
, 317 N.C. 230,
235, 345 S.E.2d 179, 182 (1986))
). The purportedly mistaken
quitclaim deed thus was valid until the correction deed was
recorded. As a result, at the time the complaint was filed, Henry
had effectively conveyed all of his interest in the Woodring Tract
to Gary, and Henry lacked standing to bring this claim. Henry's
appeal is, therefore, dismissed.
 We next consider plaintiff Gary Woodring's argument that,
by failing to distinguish between the Swieter defendants and the
Water Company, the trial court's summary judgment order effectively
granted the Water Company ownership over the claimed easements.
Plaintiff contends that because the Water Company was merely alessee _ rather than an owner _ of a portion of the Swieter Tract,
it could not own an easement.
"[A]n easement appurtenant is incident to and exists only in
connection with a dominant estate . . ., pertains to the enjoyment
of the dominant estate, and is incapable of existence separate and
apart from the land to which it is annexed." Coastal Ready-Mix
Concrete Co. v. Board of Comm'rs
, 299 N.C. 620, 630, 265 S.E.2d
379, 385 (1980) (internal citations omitted). As appurtenant
easements can exist only in connection with their dominant estates,
they cannot be conveyed or owned separate from the land to which
they are appurtenant. See
1 James A. Webster, Jr., Webster's Real
Estate Law in North Carolina
§ 15-3, at 692-93 (Patrick K. Hetrick
& James B. McLaughlin, Jr. eds., 5th ed. 1999) (noting appurtenant
easements cannot be conveyed independently of their dominant
In contrast, "an easement is in gross [if] there is no
dominant tenement; . . . and [is] personal to the grantee because
it is not appurtenant to other premises. An easement in gross
attaches to the person and not to land." Shingleton v. State
N.C. 451, 454, 133 S.E.2d 183, 186 (1963) (internal citations
omitted). Certain types of easements in gross may be independently
1 Webster, supra
§ 15-4, at 693-94 (noting easements
in gross may be separately assignable).
Here, the parties do not dispute that the easements asserted
by plaintiffs must be appurtenant to the Swieter Tract. It is also
undisputed that the Water Company is a lessee and not an owner ofthe Swieter Tract. Accordingly, the Water Company could not have
an ownership interest in the easements claimed by the Swieter
The trial court's summary judgment order grants summary
judgment to all the defendants without distinguishing among them.
By failing to distinguish between the actual owners of the dominant
estate and their lessee, however, the trial court's order
necessarily grants the same rights in the easements to all
defendants. Because the Water Company could not have ownership of
an easement appurtenant to its landlord's land, we conclude this
aspect of the trial court's ruling was error. As we are reversing
for the reasons specified below, we instruct the trial court on
remand to distinguish between defendants in any subsequent orders.
(See footnote 1)
 Plaintiff next argues that the trial court erred in
awarding defendants summary judgment, as genuine issues of material
fact existed for each of defendants' four easement theories:
easement by prescription under color of title, easement implied by
prior use, easement implied by necessity, and easement by estoppel. Plaintiff contends alternatively that he was entitled to summary
judgment with respect to defendants' claims.
Summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, show that there is no genuine issue of material fact
and a party is entitled to judgment as a matter of law. N.C.R.
Civ. P. 56(c). The moving party bears the burden of showing a lack
of triable issues of fact. Pembee Mfg. Corp. v. Cape Fear Constr.
, 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). Once the
moving party meets this burden, the nonmoving party must "produce
a forecast of evidence demonstrating that the [nonmoving party]
will be able to make out at least a prima facie case at trial."
Collingwood v. Gen. Elec. Real Estate Equities, Inc.
, 324 N.C. 63,
66, 376 S.E.2d 425, 427 (1989).
(See footnote 2)
A. Easement by Prescription
In order to establish an easement by prescription, a claimant
must meet the following criteria: (1) the use must be adverse,
hostile, or under a claim of right; (2) the use must be open and
notorious; (3) the use must be continuous and uninterrupted for a
period of 20 years; and (4) there must be substantial identity of
the easement claimed. Concerned Citizens of Brunswick County
Taxpayers Ass'n v. State
, 329 N.C. 37, 45, 404 S.E.2d 677, 682
(1991). The burden of proving the elements essential to the
acquisition of an easement by prescription is on the party claiming
the easement. Id.
Here, we need only address the third element: whether
defendants' use has been continuous and uninterrupted for the
required prescriptive period, which is ordinarily 20 years. Id.
Having installed the waterline in or around 1992, defendants
plainly have not met this burden. Defendants nevertheless argue
that summary judgment in their favor was proper because they
utilized the purported waterline easement under "color of title"
for more than seven years. In contrast to the ordinary 20-year
period, if a party obtains ownership under color of title, then the
period of time for which the party must adversely possess the
property is shortened to 7 years. N.C. Gen. Stat. § 1-38(a)
Although the color of title doctrine had previously been
applied primarily to obtaining ownership in fee simple by adverse
possession, this Court held in Higdon v. Davis
, 71 N.C. App. 640,647-48, 324 S.E.2d 5, 11-12 (1984), aff'd in part and rev'd in
, 315 N.C. 208, 337 S.E.2d 543 (1985), that the doctrine was
equally applicable to obtaining an easement by prescription. The
Supreme Court, however, in partially affirming and reversing the
Court of Appeals in Higdon
, specifically declined to address
whether an easement in North Carolina could be acquired by
prescription under color of title. See
315 N.C. at 217, 337 S.E.2d
at 548 ("Because we find that the evidence as a matter of law does
not support a finding of seven years' use of the easement under
color of title, we decline to decide whether in North Carolina an
easement may be acquired by seven years' adverse use under color of
title."). But see
1 Webster, supra
§ 15-18, at 721 ("If a
landowner can lose a full fee simple absolute to a claimant
succeeding under the adverse possession by color of title doctrine,
there is logic to the argument that an easement, a mere incorporeal
hereditament, could be acquired by a claimant under the same theory
. . . .").
For purposes of this opinion, we assume, without deciding,
that the doctrine of color of title applies to easements by
prescription. "'Color of title is generally defined as a written
instrument which purports to convey the land described therein but
fails to do so because of a want of title in the grantor or some
defect in the mode of conveyance.'" Hensley v. Ramsey
, 283 N.C.
714, 732, 199 S.E.2d 1, 12 (1973) (quoting Price v. Tomrich Corp.
275 N.C. 385, 391, 167 S.E.2d 766, 770 (1969)). The Swieter defendants contend they have color of title for a
waterline easement by virtue of their deed from the Gilleys. The
deed from the Gilleys refers only to defendants' "right-of-way"
over Creek Road and makes no mention of any underground waterline
rights. "A deed offered as color of title is such only for the
land designated and described in it." McDaris v. Breit Bar "T"
, 265 N.C. 298, 300, 144 S.E.2d 59, 61 (1965). See also
§ 14-11, at 659 n.116. Further, "'when an easement
is created by express conveyance and the conveyance is "perfectly
precise" as to the extent of the easement, the terms of the
conveyance control.'" Intermount Distrib., Inc. v. Public Serv.
Co. of N.C., Inc.
, 150 N.C. App. 539, 542, 563 S.E.2d 626, 629
(2002) (quoting Williams v. Abernethy
, 102 N.C. App. 462, 464-65,
402 S.E.2d 438, 440 (1991)). As the deed from the Gilleys provides
only a right of way over Creek Road, it fails to provide the
Swieter defendants with color of title to a waterline easement
located under the road. Cf. Swaim v. Simpson
, 120 N.C. App. 863,
463 S.E.2d 785 (1995) (express easement only for ingress and egress
did not permit installation of underground utility pipes), aff'd
, 343 N.C. 298, 469 S.E.2d 553 (1996).
Defendant Water Company, on the other hand, contends it has
color of title under deeds from members of the Swieter family
purporting to grant or assign to the Water Company an easement
under Creek Road "for the purpose of installing, inspecting,
maintaining and repairing a potable water line." As noted
previously, however, the Water Company could not obtain ownershipof an easement appurtenant to its landlord's estate, whether under
color of title or otherwise. See
1 Webster, supra
§ 15-3, at 692-
93. Rather, the Water Company, as lessee, is entitled to no more
than use of the appurtenant easements of the dominant estate. See
, 272 N.C. at 589, 158 S.E.2d at 836. Consequently, the Water
Company failed to obtain color of title to the waterline easement
under its deeds from the Swieters.
(See footnote 3)
Because of the failure of the
defendants to demonstrate their entitlement to an easement by
prescription under color of title, this theory cannot support the
trial court's entry of summary judgment in their favor.
B. Easement Implied by Prior Use
To establish an easement implied by prior use, a party must
prove that: (1) there was a common ownership of the dominant and
servient parcels and a transfer which separates that ownership; (2)
before the transfer, the owner used part of the tract for the
benefit of the other part, and that this use was apparent,
continuous, and permanent; and (3) the claimed easement is
necessary to the use and enjoyment of the claimant's land. Tedder
, 128 N.C. App. 27, 32-33, 493 S.E.2d 487, 490 (1997),
disc. review denied
, 348 N.C. 290, 510 S.E.2d 917 (1998). "Once
these elements are established, 'an "easement from prior use" may
be implied to "protect the probable expectations of the grantor andthe grantee that an existing use of part of the land would continue
after the transfer
at 33, 493 S.E.2d at 490 (emphasis
added) (quoting Curd v. Winecoff
, 88 N.C. App. 720, 724, 364 S.E.2d
730, 732 (1988)). Although it is unclear whether the common
ownership element has been met, we need not address that issue
because defendants have failed to forecast evidence sufficient to
establish the latter two elements of an easement implied by prior
The fact that there was apparent, continuous, and permanent
use of Creek Road for the benefit of the Swieter Tract prior to the
transfer from common ownership is insufficient to meet the
requirements of the second element. Easements implied by prior use
are designed to protect the expectations of the grantor and grantee
that an existing use
will continue after the transfer. Id.
result, the grantee must show the disputed "use of the purported
easement existed prior to the severance of title . . . and that at
the time of the severance, [the grantor] intended that the use
would continue." CDC Pineville, LLC v. UDRT of N.C., LLC.
N.C. App. 644, 654, 622 S.E.2d 512, 519 (2005), disc. review
, 360 N.C. 478, 630 S.E.2d 925 (2006).
Here, there is no dispute that the waterline was installed in
or around 1992, long after the 1938 transfer of the property away
from any common ownership. Thus, although Creek Road may have been
used to benefit the Swieter Tract prior to the transfer, the
underground waterline was not, and the parties to the original
transfer could not, therefore, have "intended that the use" ofCreek Road as the site for a waterline "continue" after the
Similarly, as to whether the waterline is necessary to enjoy
the Swieter Tract, "[t]he element of necessity, with an implied
easement by prior use, does not require a showing of absolute
necessity. '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
. . . .'" Metts v. Turner
, 149 N.C. App. 844, 850, 561
S.E.2d 345, 348 (emphasis added) (quoting Smith v. Moore
, 254 N.C.
186, 190, 118 S.E.2d 436, 438-39 (1961)), disc. review denied
N.C. 164, 568 S.E.2d 198 (2002). Again, plaintiff's predecessors
in interest did not install any waterlines. As defendants'
installation of the waterline went beyond the "manner" and "extent"
of the use to which plaintiff's predecessors put Creek Road,
defendants also failed to present evidence of the third element of
an easement implied by prior use. See Broome v. Pistolis
, 53 N.C.
App. 366, 368, 280 S.E.2d 794, 795 (1981) ("[C]reation of an
easement by implication cannot rest upon mere convenience.").
As there were no genuine issues of material fact as to either
the second or third elements of an easement implied from prior use,
defendants were not entitled to an easement under this theory.
This theory cannot, therefore, support the trial court's grant of
summary judgment to defendants.
C. Easement Implied by Necessity
We next turn to defendants' argument that they are entitled to
an easement implied by necessity. "In some instances property
could not be used for the purpose for which granted or any
beneficial purpose unless an easement is implied." 1 Webster,
§ 15-13, at 701. "North Carolina follows the generally
accepted view that the requirements for such an easement are: (1)
a conveyance (2) of a portion of the grantor's land (i.e., the
grantor retains a portion of his land) and (3) after this severance
of the two portions or parcels, it is necessary for the grantee to
have an easement over the grantor's retained land to reach a public
at 702 (emphasis and internal footnote omitted).
"[T]he easement must arise, if at all, at the time of the
conveyance from common ownership." Broyhill v. Coppage
, 79 N.C.
App. 221, 226, 339 S.E.2d 32, 37 (1986). Consequently, all
elements required for the easement's creation must exist at the
time of the severance of the alleged dominant and servient estates.
1 Webster, supra
§ 15-13, at 702. Although this doctrine is most
typically considered with respect to rights of way, this Court has
also recently applied it in the context of underground utility
piping. See CDC Pineville, LLC
, 174 N.C. App. at 654, 622 S.E.2d
at 519 (noting that because "it was not necessary that the pipe .
. . be located on plaintiff's property in order for defendant to
use and enjoy its property, . . . there was no easement by
On appeal, the parties dispute only the third element: whether
it is necessary for defendants to have the waterline easement underCreek Road. As with easements implied by prior use, "the party
claiming the easement [need not] show absolute necessity." Boggess
, 173 N.C. App. 614, 618, 620 S.E.2d 10, 13 (2005), disc.
, 360 N.C. 288, 627 S.E.2d 619 (2006). Rather, "'[i]t
is sufficient to show such physical conditions and such use as
would reasonably lead one to believe that the grantor intended the
grantee should have the right of access.'" Broyhill
, 79 N.C. App.
at 223, 339 S.E.2d at 35 (quoting Oliver v. Ernul
, 277 N.C. 591,
599, 178 S.E.2d 393, 397 (1971)). Additionally, necessity may be
established if the easement is "necessary to the beneficial use of
the land granted, 'and to its convenient and comfortable enjoyment,
as it existed at the time of the grant.'" Wiggins v. Short
N.C. App. 322, 331, 469 S.E.2d 571, 578 (1996) (quoting Meroney v.
, 182 N.C. 739, 744, 110 S.E. 89, 91 (1921)).
As the waterline was not installed until nearly 60 years after
the 1938 transfer of the property away from any purported common
ownership, we fail to see how a waterline easement, at the time of
the conveyance, could possibly have been either intended by the
parties to the transfer or necessary to the convenient and
comfortable enjoyment of the Swieter Tract. Thus, defendants
failed to present evidence sufficient to establish an easement
implied by necessity.
D. Easement by Estoppel
As a general matter, "'[e]quitable estoppel precludes a party
from asserting rights "he otherwise would have had against another"
when his own conduct renders assertion of those rights contrary toequity.'" Ellen v. A.C. Schultes of Md., Inc.
, 172 N.C. App. 317,
321, 615 S.E.2d 729, 732 (2005) (quoting Int'l Paper Co. v.
Schwabedissen Maschinen & Anlagen, GMBH
, 206 F.3d 411, 417-18 (4th
Cir. 2000)), disc. review and cert. denied
, 360 N.C. 575, 635
S.E.2d 430 (2006). Accordingly, an easement by estoppel "'may
arise where one cognizant of his own right keeps silent in the
knowledge that another will be innocently and ignorantly induced to
. . . expend money or labor in reliance on the existence of such an
easement.'" Delk v. Hill
, 89 N.C. App. 83, 87, 365 S.E.2d 218, 221
(1988) (quoting Patrick K. Hetrick, Webster's Real Estate Law in
§ 316 (rev. ed. 1981)), disc. review denied
N.C. 605, 370 S.E.2d 244 (1988). See also Packard v. Smart
N.C. 480, 484, 31 S.E.2d 517, 519 (1944) (concluding successors in
interest of single building spanning two adjoining parcels were
bound by appurtenant cross-easements by estoppel following
predecessors' oral agreement to jointly use common hallways).
"[I]n order for the doctrine of equitable estoppel to apply, the
party against whom estoppel is asserted must have full knowledge
its rights and of facts which will enable it to take action as to
enforcement thereof." State Farm Mut. Auto. Ins. Co. v. Atlantic
, 122 N.C. App. 67, 76, 468 S.E.2d 570, 575 (1996)
Thus, in Delk
, this Court held the plaintiff had shown
sufficient evidence of an easement by estoppel to withstand summary
judgment when he had graded a road across the defendant's property
"at plaintiff's great expense," in the belief that he had aneasement and following a request by the defendant
. 89 N.C. App. at
87, 365 S.E.2d at 221. By way of contrast, in Huberth v. Holly
120 N.C. App. 348, 352, 462 S.E.2d 239, 242 (1995), this Court held
that no easement by estoppel was created when the record contained
no evidence "that plaintiffs led the defendants to believe that
plaintiffs had granted them an easement."
In this case, Henry Woodring's affidavit states that he was
not aware of the waterline beneath Creek Road until 1998,
approximately six years after it was installed. In response,
defendants have pointed to no evidence suggesting that plaintiff or
his father were aware that defendants had installed a waterline
along Creek Road. None of the affidavits or requested admissions
attached to defendants' motion for summary judgment indicate that
plaintiff had such knowledge, and none of the evidence suggests
that plaintiff led defendants to believe they had an easement that
allowed installation of an underground commercial waterline.
Consequently, the record contains insufficient evidence to support
a finding of an easement by estoppel.
E. The Trial Court's Grant of Summary Judgment
As indicated above, the record contains insufficient evidence
to support a finding by a jury that defendants are entitled to a
waterline easement under any of the theories they asserted.
Accordingly, the trial court erred not only in granting summary
judgment to defendants as to the waterline easement, but also erredin failing to grant summary judgment to plaintiff Gary Woodring on
his claim that defendants were not entitled to a waterline
 Finally, plaintiff asserts that the trial court erred by
granting defendants summary judgment with respect to his claims for
trespass, nuisance, unjust enrichment, and unfair trade practices.
With respect to these claims, plaintiff's brief includes argument
only as to his trespass claim, and, therefore, we conclude that his
appeal as to the remaining claims is abandoned. See
N.C.R. App. P.
28(a) ("Questions raised by assignments of error in appeals from
trial tribunals but not then presented and discussed in a party's
brief, are deemed abandoned."). We, therefore, address only
plaintiff's trespass claim.
 "'The elements of trespass to real property are: (1)
possession of the property by the plaintiff when the alleged
trespass was committed
; (2) an unauthorized entry by the defendant;
and (3) damage to the plaintiff from the trespass.'" Keyzer v.
, 173 N.C. App. 284, 289, 618 S.E.2d 768, 772 (2005)
(emphasis added) (quoting Broughton v. McClatchy Newspapers, Inc.
161 N.C. App. 20, 32, 588 S.E.2d 20, 29 (2003)), aff'd per curiam
360 N.C. 397, 627 S.E.2d 462 (2006). Plaintiff Gary Woodring
obtained no legally recognized interest in the Woodring Tract until
Henry deeded his interest in the two acre parcel to Gary in
November 1998, approximately six years after the installation of
the waterline _ the date when the original trespass was committed. As a result, plaintiff failed to satisfy the first element of a
claim for trespass, and, accordingly, summary judgment in favor of
defendants was proper. See, e.g.
, Fordham v. Eason
, 131 N.C. App.
226, 229, 505 S.E.2d 895, 898 (1998) ("Since [the plaintiff] cannot
show that it was the owner of the land, it cannot maintain a cause
of action for trespass."), rev'd on other grounds
, 351 N.C. 151,
521 S.E.2d 701 (1999).
Moreover, even assuming, arguendo
, that plaintiff did have a
legally recognized interest in the Woodring Tract at the time of
defendants' trespass, plaintiff's claim would be barred by the
applicable statute of limitations. Because the waterline is an
actual encroachment on plaintiff's land for which damages could
adequately be measured in a single action, it is a "continuing" _
rather than a "recurring" _ trespass. See Bishop v. Reinhold
N.C. App. 379, 383, 311 S.E.2d 298, 301 (building constructed on
complainant's property was a continuing trespass as there was no
reason "why all relief cannot be granted in this one action, and in
one trial"), disc. review denied
, 310 N.C. 743, 315 S.E.2d 700
(1984). "When the trespass is a continuing one, the action shall
be commenced within three years from the original trespass, and not
thereafter." N.C. Gen. Stat. § 1-52(3) (2005).
Although the disputed waterline was completed in 1992,
plaintiff filed this suit in 2004, long after the three-year
statute of limitations had run.
(See footnote 4)
Accordingly, the trial courtproperly granted summary judgment in defendants' favor as to the
In sum, at the time the complaint was filed, plaintiff Henry
Woodring lacked any interest in the property at issue and,
consequently, lacked standing to bring this action. We, therefore,
dismiss Henry Woodring's appeal. Similarly, since the Water
Company does not own any portion of the property to which an
easement would be appurtenant, it cannot be deemed to own any
easement. We reverse the trial court's order to the extent it can
be construed to grant the Water Company an easement of any kind.
With respect to the Swieter defendants' claim for easements,
plaintiff Gary Woodring has abandoned his appeal of the trial
court's determination that an easement for ingress and egress along
Creek Road exists in favor of the Swieter defendants. As for the
claimed waterline easement underneath Creek Road, however, we hold:
(1) defendants have not satisfied the requisite period for an
easement by prescription and are not entitled to rely upon the
shorter period provided by the doctrine of color of title; (2) as
to implied easements, defendants have failed to show that the
installation of a waterline was intended by the parties to the
original transfer from common ownership or reasonably necessary to
defendants' use of the property; and (3) defendants failed to
forecast sufficient evidence that they are entitled to an easementby estoppel. The trial court, therefore, should have entered
summary judgment in favor of plaintiff Gary Woodring regarding
defendants' claim of an easement for their waterline.
With respect to plaintiff's claims for trespass, nuisance,
unjust enrichment, and unfair trade practices, however, the trial
court properly entered summary judgment in favor of defendants.
Accordingly, we dismiss the appeal in part, affirm the trial court
in part, reverse the trial court in part, and remand for further
proceedings in accordance with this opinion.
Dismissed in part; affirmed in part; reversed and remanded in
Judges WYNN and HUDSON concur.