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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.
THOMAS G. POTTLE and wife, MARY E. POTTLE; and SNUG HARBOR SOUTH,
LLC, Plaintiffs, v. CHARLES DAVID LINK and, GENE WILLETS,
Filed: 18 December 2007
Easements--statute of limitations--injury to incorporeal hereditament
A dispute which alleged obstructions on easements providing access to lots involved an
injury to an incorporeal hereditament rather than a continuous trespass or a prescriptive easement
to property held in fee, and the six year statute of limitations of N.C.G.S. § 1-50(a)(3) is
applicable. Two of the alleged encroachments did not violate the limitations period but involved
an issue of fact as to whether actual encroachment occurred. Those issues were preserved for the
jury; the remainder were remanded for entry of summary judgment for defendants.
Appeal by Defendants from order entered 21 August 2006 by
Judge Benjamin G. Alford in New Hanover County Superior Court.
Heard in the Court of Appeals 17 October 2007.
Ward and Smith, P.A., by Ryal W. Tayloe, for Plaintiffs-
Smith Moore LLP, by Sidney S. Eagles, Jr. and Elizabeth Brooks
Scherer; and Law Offices of G. Grady Richardson, Jr., P.C., by
G. Grady Richardson, Jr., for Defendants-Appellants.
Thomas G. Pottle and his wife, Mary E. Pottle, own Tract 6 of
Cedar Island, in New Hanover County, North Carolina, and Snug
Harbor South, LLC, a North Carolina limited liability company, owns
Tract 4 of Cedar Island (together, Plaintiffs). Plaintiffs' Tract
6 and Tract 4 are adjoining properties on Cedar Island, and both
are the owners of two easements, allegedly thirty feet in width,
which allow ingress to and egress from the public road to Tracts 6
and 4 and other lots comprising Cedar Island. Charles D. Link
(Defendant Link) owns Tract 3 on Cedar Island,
and Gene Willets
(Defendant Willets) owns Tract 5, which are properties
adjacent toPlaintiffs' properties and are the servient lots over which the
aforementioned thirty-foot easements run.
In the summer of 1994, approximately eleven years before the
commencement of Plaintiffs' action, Defendant Link planted several
oak, cypress, holly, and cedar trees on Tract 3. In autumn of
1996, Defendant Link planted two additional oak trees, replacing
two trees that had been destroyed by hurricanes. Thereafter,
Defendant Link maintained the trees by installing an irrigation
drip line and planting other vegetation on Tract 3.
In the summer
of 2004, Defendant Willets installed a post and rope fence on Tract
5, and in 2005, Defendant Link also constructed a fence on Tract 3.
Plaintiffs alleged that all of the aforementioned landscaping
encroached onto their thirty-foot easement.
Plaintiffs initially filed a complaint on 8 February 2005, and
Defendant Link filed motions and an answer on 13 April 2005.
Plaintiffs then filed an amended complaint on 8 September 2005,
adding Defendant Willets, and alleging that [t]rees, shrubs, and
other vegetation have grown up on [Defendant Link's] property . .
. within and over the thirty foot easement area[,] which impede
vehicular traffic, especially large vehicles such as delivery
trucks, moving vans, and emergency vehicles. Plaintiffs further
alleged that Defendant Willets placed a post and rope fence on the
property . . . lying within and over the thirty foot easement
area[.] The amended complaint states that the encroachments
interfered with Plaintiffs' right to the full use and enjoyment of
the easement, and
Plaintiffs prayed that the court order apreliminary and permanent injunction prohibiting Defendants from
obstructing or interfering with Plaintiffs' right to the thirty-
Defendant Link filed motions and an answer to Plaintiffs'
amended complaint on 29 November 2005. Defendant Willets filed
motions and an answer on 27 March 2006.
On 24 July 2006, Plaintiffs filed a
Rule 56 motion for summary
judgment, arguing that there are no genuine issues of material
fact . . . and that Plaintiffs are entitled to judgment as a matter
of law on all claims. Plaintiffs provided the affidavits of
Joseph M. James, M.D (James), Plaintiff Thomas Pottle, and Stuart
Y. Benson to support their motion. James, a resident of Cedar
Island, stated in his affidavit that the Snug Harbor South, LLC
deed conveyed the property with a right of ingress and egress over
two thirty-foot roadway easements, [t]he purpose [being] . . . to
provide [access] from the public road to the property owners within
Cedar Island. James stated, [t]here is no other overland route
by which I can access my house[,] . . . absent the [e]asements.
When James began construction of his house, [he] discussed with .
. . Defendant [Link], the need to clear trees, shrubs and other
vegetation from the [e]asements. James stated that he made
attempts to remove the trees and encroachments by hiring
contractors at his own expense, but Defendant Link consistently
refused and physically interposed himself and interfered with all
attempts . . . to clear the [e]asements[.] James further stated
that Defendant [Willets] . . . maintains and continues to erectpost and rope fencing around his property and within the
[e]asements[,] and that James made similar attempts to remove the
post and rope fencing, which Defendant Willets consistently
refused. James said the encroachments make the right-of-way narrow
and create a low overhanging obstruction so as to prevent access
to [his] house by any large vehicles[.]
Defendants moved for summary judgment on 26 July 2006, and at
the 10 August 2006 hearing, Defendants argued that the applicable
statute of limitations for injuries to incorporeal hereditaments,
N.C. Gen. Stat.
, had expired, and secondarily that
Plaintiffs' actions constituted an abandonment of the easement.
Defendants also supported their motion with the affidavits of
Defendant Willet, Defendant Link and R.K. Goodyear. In addition,
Defendants filed a motion to dismiss on 26 July 2006, arguing that
Plaintiffs fail[ed] to join all necessary and proper parties.
On 21 August 2006, the court entered an order granting
Plaintiffs' motion for summary judgment and denying Defendants'
motions for summary judgment and dismissal. From this order,
A motion for summary judgment should be granted 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 and that any party is
entitled to a judgment as a matter of law. N.C. Gen. Stat.
1, Rule 56(c) (2005). Therefore, [a]ppellate review of the grantof summary judgment is limited to two questions, including: (1)
whether there is a genuine question of material fact, and (2)
whether the moving party is entitled to judgment as a matter of
law. Wooten v. Town of Topsail Beach, 127 N.C. App. 739, 740, 493
S.E.2d 285, 286-87 (1997) (citation omitted).
Evidence is viewed
in the light most favorable to the non-moving party with all
reasonable inferences drawn in favor of the nonmovant. Id. at
741, 493 S.E.2d at 287.
On appeal, Defendants argue that the trial court committed
reversible error by granting Plaintiffs' motion for summary
judgment because Plaintiffs' claims are time-barred by application
of the statute of limitations [f]or injury to any incorporeal
hereditament under N.C. Gen. Stat.
Plaintiffs argue that their claims are governed by the twenty-year
adverse possession statute of limitations, N.C. Gen. Stat. § 1-40
Ordinarily, the question of whether a cause of action is
barred by the statute of limitations is a mixed question of law and
. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488,
491, 329 S.E.2d 350, 353 (1985). However, when the bar is
properly pleaded and the facts are admitted or are not in conflict,
the question of whether the action is barred becomes one of law,
and summary judgment is appropriate. Id. (citations omitted).
Here, the relevant facts are not disputed. The parties agree that
all encroachments, except the fences installed in 2004 and 2005,
were planted or installed approximately nine to eleven years beforethe commencement of Plaintiffs' action. The only question is which
statute of limitations applies, and that is a question of law.
Easements are classified as affirmative or negative. Davis
v. Robinson, 189 N.C. 589, 598, 127 S.E. 697, 701 (1925)
quotation marks omitted)
An affirmative easement is a right to
make some use of land owned by another without taking a part
thereof. Builders Supplies Co. v. Gainey, 282 N.C. 261, 266, 192
S.E.2d 449, 453 (1972) (citations omitted). A negative easement
prohibits the owner of a servient estate . . . from doing
something otherwise lawful upon his estate, because it will affect
the dominant estate.
Davis, 189 N.C. at 598, 127 S.E. at 701
(internal quotation marks omitted)
. A restrictive
covenant is a
servitude, commonly referred to as a negative easement[.]
Hawthorne v. Realty Syndicate, Inc., 43 N.C. App. 436, 440, 259
S.E.2d 591, 593 (1979) (citations omitted). Both a restrictive
covenant and an easement are incorporeal hereditaments. Id. at
440, 259 S.E.2d at 593.
This Court has adopted the following definition of the term
incorporeal hereditament, which derives from English law:
Anything, the subject of property, which is
inheritable and not tangible or visible. A
right issuing out of a thing corporate
(whether real or personal) or concerning or
annexed to or exercisable within the same. A
right growing out of, or concerning, or
annexed to, a corporeal thing, but not the
substance of the thing itself.
Karner v. Roy White Flowers, Inc., 134 N.C. App. 645, 649, 518
S.E.2d 563, 567 (1999), rev'd on other grounds, 351 N.C. 433, 527
S.E.2d 40 (2000), (citing Black's Law Dictionary 726 (6th ed.1990)). The 8th edition of Black's Law Dictionary defines
incorporeal hereditament as [a]n intangible right in land, such
as an easement. Black's Law Dictionary 743 (8th ed. 2004).
N.C. Gen. Stat.
1-50(3) (2005) requires that an action for
injury to any incorporeal hereditament be brought within six years.
See also Boyden v. Achenbach, 79 N.C. 539, 543 (1878)
[i]f the right of way is claimed as an incorporeal hereditament .
. . then six years is the statute [of limitations]).
Plaintiffs rely on Karner, 134 N.C. App. 645, 518 S.E.2d 563,
and Bishop v. Reinhold, 66 N.C. App. 379, 311 S.E.2d 298 (1984),
for their argument that even though easements are incorporeal
hereditaments, the six-year statute of limitations under G.S.
does not apply in this case. Plaintiffs contend that the
injury here is similar to an adverse possession, having a
limitation period of twenty years under G.S.
1-40, and that their
claim for relief [is] . . . not barred 'until defendants [have]
been in continuous use [of the easement] for a period of twenty
years so as to acquire the right by prescription.' Karner, 134
N.C. App. at 650, 518 S.E.2d
at 567 (quoting Bishop, 66 N.C. App.
At 384, 311 S.E.2d at 301).
In Bishop, notwithstanding the three-year statute of
limitations for a continuing trespass, see N.C. Gen. Stat.
1-52(3) (2005), this Court held
that any action to remove the
defendants' structure, which partially encroached onto Bishops'
property, would not be barred until defendants had been in
continuous use thereof for a period of twenty years[.] Bishop, 66N.C. App. at 384, 311 S.E.2d at 301. The Court in Bishop
To deny plaintiffs a right of action . . .
would be to allow the defendants a right of
eminent domain as private persons (and without
the payment of just compensation) or grant
defendants a permanent prescriptive easement
to use the plaintiffs' land. This the law will
not do, as the defendants have not been in
possession for 20 years from 1973, the date
the house was constructed.
Id. at 384, 311 S.E.2d at 301-02.
Similarly, in Williams v. South & South Rentals, 82 N.C. App.
378, 382, 346 S.E.2d 665, 667 (1986), an apartment building
encroached approximately one square foot onto the plaintiff's
property. The Court in Williams said, [w]hile the action sounds
in trespass because there is no dispute over title or location of
the boundary line, plaintiff seeks a permanent remedy and is
subject to the twenty-year statute of limitations for adverse
We conclude that Bishop and Williams, are distinguishable from
the instant case. In both Bishop and Williams, the defendants'
continuous trespass encroached onto plaintiffs' property held in
fee, not plaintiffs' incorporeal hereditament.
Furthermore, in Karner, this Court rejected a similar argument
and ruled that G.S. § 1-50(a)(3), the statute of limitations for
injury to an incorporeal hereditament, was applicable to
restrictive covenants. In Karner, the defendants intended to
construct a commercial building in a neighborhood developed as a
residential subdivision, and the plaintiffs, lot owners in theneighborhood
, filed a complaint to enjoin defendants from erecting
Defendants answered with the defense that the
statute of limitations for injury to an incorporeal hereditament,
1-50(a)(3), had expired. Plaintiffs then argued that the
correct statute of limitation . . . [was] the 'prescriptive
period' of twenty years. Karner, 134 N.C. App. at 649, 518 S.E.2d
at 567. The Court distinguished Bishop, stating that a
residential restrictive covenant is at issue rather than [a] . . .
prescriptive easement [to property held in fee]. Id. at 650, 518
S.E.2d at 567.
Therefore, G.S. § 1-50(a)(3) was the applicable
statute of limitations.
Here, we find the logic of Karner persuasive
. Because an
injury to an incorporeal hereditament is at issue, rather than a
continuous trespass or a prescriptive easement to property held in
fee, as in Bishop and Williams, we conclude that G.S.
is the applicable statute of limitations, and Plaintiffs' case is
barred if the six year statute of limitations is satisfied.
The parties agree that all but two encroachments onto
Plaintiffs' easement began approximately nine to eleven years
before the commencement of Plaintiffs' action
. Defendants were
therefore entitled to partial summary judgment as a matter of law,
and the trial court erred in granting summary judgment to
Defendants admit, however, that Defendant Link's fence and
Defendant Willets' fence have not been in place for more than six
years[,] and the parties contest whether these fences [actuallyencroach] into . . . Plaintiffs' easement. Defendants contend
that the fences do not encroach, but Plaintiffs disagree and
submitted as evidence the affidavit of Stuart Y. Benson, a
professional land surveyor
, which stated that [t]he Survey shows
a post and rope fence within the Easements around the perimeter of
the Willets Lot. Furthermore, the affidavit stated, [an]
additional post and rope fenc[e] [was] erected within the Easements
on the Link Lot. The record therefore reveals a genuine issue of
material fact, such that summary judgment should be denied and the
issue preserved for the jury
as to whether Defendants' fences
encroached onto Plaintiffs' easement.
The trial court erred by granting summary judgment in
Plaintiffs' favor. We therefore reverse and remand for entry of
summary judgment for Defendants on all issues for which the statute
of limitations has expired, noting that this does not include the
2004 and 2005 installation of fences
Reversed and Remanded.
Judges CALABRIA and STEPHENS concur.
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