C&S Realty v Blowe, (05-461) 01/17/2006

Appeal by defendants from judgment entered 22 December 2004 by Judge C. Christopher Bean in Dare County Superior Court. Heard in the Court of Appeals 16 November 2005.

Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler for plaintiff-appellee.

Hornthal, Riley, Ellis & Maland, L.L.P., by M.H. Hood Ellis, for the defendants-appellants.

    CALABRIA, Judge.

    Ralph M. Blowe and Josephine W. Blowe (“defendants”) appeal the 22 December 2004 grant of summary judgment to C&S Realty Corporation (“plaintiff”) determining that because a portion of defendants' cement driveway constituted an unlawful encroachment onto plaintiff's property defendants had to remove the same. We affirm.
    Defendants own a cottage and lot at 200 East Third Street, Kill Devil Hills, North Carolina. Plaintiff is the adjoining landowner of the Days Inn Mariner Motel (“property”). Plaintiffacquired record title to property on 9 February 1970. Defendants acquired record title to their cottage and lot on 11 March 1986. A concrete driveway was constructed by defendants' immediate predecessors in interest, Mr. Frederick K. Pfeiffer and Carolyn E. Pfeiffer (“Pfeiffers”) in March of 1982. However, the deed received by defendants from the Pfeiffers failed to include the area encompassed by the driveway. Plaintiff commissioned a survey of the property in December of 2000 revealing a portion of defendants' driveway (approximately 5.3 feet by 31 feet) encroaches upon plaintiff's property. Plaintiff demanded defendants remove the disputed portion of the driveway encroaching upon plaintiff's property and defendants refused.
    Plaintiff filed suit on 8 May 2002 seeking to quiet title in the disputed area and declare defendants entry upon their property a trespass. Defendants filed an answer on 27 June 2002 alleging, among other things, they acquired title to the disputed area in question by adverse possession. Cross motions for summary judgment were heard on 18 October 2004; the trial court granted summary judgment to plaintiff and denied the same to defendants on 21 December 2004. Defendants appeal.
    Defendants first argue the trial court erred by ordering them to remove the portion of their concrete driveway unlawfully encroaching onto plaintiff's property. Defendants contend summary judgment was improperly granted to plaintiff because defendants acquired the driveway encroachment through the doctrine of adverse possession. We disagree.    Summary judgment is appropriate and “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact....” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). The party moving for summary judgment has the burden to satisfy the court there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Hagler v. Hagler, 319 N.C. 287, 295, 354 S.E.2d 228, 235 (1987) (citing Moore v. Crumpton, 306 N.C. 618, 295 S.E.2d 436 (1982)). The movant can carry this burden “by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim.” Zimmerman v. Hogg & Allen, Prof'l. Ass'n., 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1974).
    “To acquire title to land by adverse possession, the claimant must show actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period (seven years or twenty years) under known and visible lines and boundaries.” Merrick v. Peterson, 143 N.C. App. 656, 663, 548 S.E.2d 171, 176 (2001) (citations omitted). The prescriptive period is seven years when claimant possesses colorable title. See N.C. Gen. Stat. § 1-38(a) (2005). Absent colorable title, the prescriptive period is twenty years. See N.C. Gen. Stat. § 1-40 (2005). Defendants in the instant case did not assert adversepossession under color of title and thus their prescriptive period to illustrate adverse possession is twenty years.
    “To be continuous, adverse possession does not have to be unceasing, but the evidence must warrant the inference that actual use and occupation has extended over the required period and that during it, the claimant has, from time to time, continuously subjected the land to its susceptible use.” McManus v. Kluttz, 165 N.C. App. 564, 574-75, 599 S.E.2d 438, 446-47 (2004) (citations omitted) (emphasis added). Defendants adversely possessed the driveway in question for a period of sixteen years, 1986 through 2002, prior to this action by plaintiff. Thus, alone, defendants cannot attain continuous possession for the prescriptive period of twenty years. Consequently, defendants must rely on the legal principle of “tacking.”
    “Tacking is the [process] whereby successive adverse users in privity with prior adverse users can tack successive adverse possessions of land so as to aggregate the prescriptive period of twenty years.” Dickinson v. Pake, 284 N.C. 576, 585, 201 S.E.2d 897, 903 (1974). However, “[a] grantee in a deed is not entitled to tack the adverse possession of his predecessors in title as to a parcel of land not contained within the description in his deed, unless privity exists between the parties.” Burns v. Crump, 245 N.C. 360, 363, 95 S.E.2d 906, 909 (1957) (emphasis added). Moreover, “[a] deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, although thegrantee enters into possession of the land not described and uses it in connection with that conveyed.” Id., 245 N.C. at 364, 95 S.E.2d at 910 (quoting Boyce v. White, 227 N.C. 640, 641, 44 S.E.2d 49, 50 (1947)). Consequently, under long-settled North Carolina precedent “[t]he...rule is that possessions cannot be tacked to make out title by prescription, when the deed under which the last occupant claims title does not include the land in dispute.” Jennings v. White, 139 N.C. 23, 26, 51 S.E. 799, 800 (1905) (citation omitted) (emphasis added); see also Simmons v. Lee, 230 N.C. 216, 223, 53 S.E.2d 79, 84 (1949) (explaining a grantee is “not...entitled to tack the adverse possession of his predecessor or predecessors in title as to a parcel of land not embraced within the description in his deed.”).
    In the instant case defendant Ralph Blowe admitted in his deposition that the deed he received from his immediate predecessors in interest, the Pfeiffers, did not contain a description of the concrete driveway. Thus, defendants cannot tack the Pfeiffers' four years of prior use to their subsequent sixteen years of adverse use. As a result, defendants must attain the necessary twenty years of continuous adverse possession on their own. However, as noted above, defendants have possessed the driveway encroachment for only sixteen years. Therefore, because defendants cannot legally tack the Pfeiffers' four years of previous adverse possession to their current sixteen year use, defendants cannot allege continuous adverse possession of the driveway encroachment on plaintiff's property for the requiredprescriptive twenty year period. Having failed to meet one of the essential elements of adverse possession, continuous use, we hold summary judgment was properly granted to plaintiff and accordingly, properly denied to defendants.
    Affirmed.
    Judges BRYANT and JACKSON concur.
    Report per Rule 30(e).

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