An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-428


Filed: 03 January 2006


v .                         Sampson County
                            No. 02 CVS 1292

    Appeal by plaintiff from judgment entered 21 October 2004 by Judge Thomas D. Haigwood in Sampson County Superior Court. Heard in the Court of Appeals 6 December 2005.

    Daughtry, Woodard, Lawrence & Starling, by K. Alice Morrison, for plaintiff-appellant.

    Defendants-appellees pro se.

    STEELMAN, Judge.

    Defendants, Robert C. Stone and wife, Elaine, own a tract of land located at the end of S.R. 1122 (Jake Ivey Road) in Sampson County. Plaintiff, John Melvin, owns a tract of land situated to the south of defendants' land and to the west of a third property owner, and is located between Jake Ivey Road and S.R. 1105 (Doctor Kerr Road). Jake Ivey Road and Doctor Kerr Road essentially run parallel to each other. Plaintiff's land does not have access to a state road and is landlocked. A two-rut dirt road exists, which extends from the end of Jake Ivey Road in a southeasterly direction and crosses both plaintiff's, defendants', and another property owner's land, where it connects to Doctor Kerr Road. This dirtroad provides access to plaintiff's land and has been in existence and used for over fifty years. During this fifty-year period, the road has been well defined and its location has remained constant. The road is a two-rut, dirt road approximately six to seven feet in width, generally only wide enough for one vehicle to pass at a time. Plaintiff does not maintain a permanent residence on his property, so the road has not been used daily, but only occasionally for various hunting and logging activities.
    In May 2002, the North Carolina Department of Health and Human Services issued plaintiff a permit to upgrade his hog farm. Plaintiff contacted defendants at the end of May, seeking a written, permanent easement over defendants' property. Defendants declined to grant plaintiff an easement upon learning that plaintiff wished to use it to access a commercial hog farm. Subsequently, defendants placed a locked gate across the road and posted “no trespassing” signs.
    On 1 November 2002, plaintiff filed this action seeking a declaratory judgment that an easement by prescription existed across defendants' land for the benefit of plaintiff's property, and defining the scope of that easement. Plaintiff further sought a preliminary injunction compelling defendants to remove the gate blocking the road. Both parties filed motions for summary judgment, which the trial court denied by order dated 24 March 2004. Pursuant to Rule 38(d) of the Rules of Civil Procedure, the parties agreed to a non-jury trial. The trial court heard the matter and on 21 October 2004 entered an order finding that aprescriptive easement, seven feet in width, existed over defendants' property from Jake Ivey Road for the benefit of plaintiff's property. Plaintiff appeals.
    In plaintiff's first argument, he asserts that by limiting the width of the easement to seven feet, the trial court effectively excluded him from using the road for mining activities, commercial agricultural activities, and river access. We disagree.
    The trial court made the following finding of fact pertaining to the use of the road:
        13. During this fifty-year period, this road has been used by the Plaintiff, Plaintiff's predecessors-in-title, and/or the public at large for various activities, including:

         a. Ingress and egress;

         b. Logging activities with timber being removed using said road with tractor-
             trailer trucks;

         c. Timber farming activities;

         d. Mining activities with dirt and sand
             being removed;

         [e]. Commercial and private hunting activities.
    Our standard of review upon the appeal from a non-jury trial is limited to whether competent evidence exists in the record to support the trial court's findings of fact, and whether, in light of those findings, the court's conclusions of law were proper. Starco, Inc. v. AMG Bonding & Ins. Services, 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996). In a non-jury trial, the court's findings “have the force and effect of a jury verdict[.]” Id. As a result, if the evidence tends to support the findings, they arebinding on appeal, even though evidence may exist which would support findings to the contrary. Id.
    At trial, conflicting evidence was presented as to the width and nature of the prior use of the road. Plaintiff now complains he presented evidence demonstrating the road had been used for activities that would require an easement wider than seven feet. However, defendants presented evidence that the road was a two-rut road, six to seven feet in width. It is the function of the trial court in a non-jury trial to determine the credibility of the witnesses and the weight to be given to the evidence presented. Powers v. Fales, 61 N.C. App. 516, 521, 301 S.E.2d 123, 126 (1983). If there is evidence in the record which supports the trial court's findings of fact, they are binding on appeal. West v. West, 257 N.C. 760, 762, 127 S.E.2d 531, 532 (1962).
    In the instant case, there was evidence presented that supports the trial court's finding that the road is a “'2-rut road approximately seven (7) feet in width.” Further, the record reveals that much of the evidence to which plaintiff cites regarding usage of the road pertains to the use of the road where it crosses the lands of a third party and not defendants' land. It is the usage of the road over the servient estate that is relevant in determining the width and scope of a prescriptive easement. Blevins v. Welch, 137 N.C. App. 98, 104, 527 S.E.2d 667, 672 (2000). This argument is without merit.
    In plaintiff's second argument, he contends the trial court erred in concluding there were findings of fact supporting itsconclusion that the roadway was a two-rut road, seven feet in width, rather than the entire width of the roadway. We disagree.
    As discussed above, there was evidence in the record supporting the trial court's findings of fact. The findings support the trial court's conclusion of law 7, which reads: “As a result of the uses, nature and character of the aforementioned road, Plaintiff has acquired a non-exclusive prescriptive easement 7 feet wide (7') across the lands of the Defendants.” This argument is without merit.
    Judges WYNN and LEWIS concur.
    Report per Rule 30(e).     

*** Converted from WordPerfect ***