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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1210

NORTH CAROLINA COURT OF APPEALS

Filed: 4 September 2007

FRANKLIN G. JONES and wife,
LINDA RUSSELL JONES,
    Plaintiffs,

v .                         Macon County
                            No. 02 CVS 167
RAYMOND A. POPPER and wife,
AUDREY A. POPPER,
    Defendants;

    and

NEIL MOORE and wife,
DARLENE MOORE,
    Plaintiffs,

v .                         Macon County
                            No. 03 CVS 304
FRANKLIN G. JONES and wife,
LINDA RUSSELL JONES,
    Defendants.

    Appeal by Franklin G. Jones and wife Linda Russell Jones from order entered 23 August 2004 by Judge Zoro J. Guice, Jr. in Macon County Superior Court. Heard in the Court of Appeals 9 May 2006.

    Brown, Ward & Haynes, PA, by Frank G. Queen, for Appellants.

    Ferikes & Bleynat, PLLC, by Edward L. Bleynat, Jr., and Evans & Rice, PLLC, by Susan L. Evans, for Appellees.

    STEPHENS, Judge.

I. Background
    This case involves the location, ownership and use of a right-of-way, more specifically a private road, located in the Millshoal Township of Macon County, North Carolina . Situated tothe north of this road is real property, formerly used as a slaughterhouse, which has been owned since April 1998 by Appellants, Franklin G. and Linda Russell Jones (“the Joneses”) . Adjacent to the Joneses' property is property owned by Plaintiffs-Appellees, Neil and Darlene Moore (“the Moores”) . Directly across the road from the Joneses' property is “Fetty Field,” which is owned by Defendants-Appellees, Raymond A. and Audrey A. Popper (“the Poppers”) . Adjacent to Fetty Field is a parcel of land owned by the Poppers, where their residence is located . At least as far back as the 1960s, all of these various properties were part of one tract of land titled to J.R. and Inez Franklin (“the senior Franklins”) .
    In or around 1966, the senior Franklins deeded a portion of the property where the slaughterhouse was located to C.W. and Grace Franklin (“the junior Franklins”). The senior Franklins' tract was divided by the deed down the center of the road located next to the slaughterhouse. One parcel was transferred to the junior Franklins, and each couple reserved for themselves and granted to the other a six-foot right-of-way on either side of the center of the road to run with the land. Thus, the boundary line between the two properties went down the center of the original road . In or around 1982, the right-of-way where the original road was located was extended by deed to certain other properties, including the property on which the Poppers now reside and have resided since 1983 . The Moores and the Poppers used the road located in the right-of-way to access their houses .    In April 2000, the Joneses had the road between their property and Fetty Field flattened and paved . According to the Poppers and the Moores, when the road was flattened and paved, it was moved from its original location to its alleged present location on Fetty Field . In February 2002, two years after the road was paved, the Poppers purchased the Fetty Field property .
    During or around June 2000, the Moores commissioned a survey of the area by Thomas Cabe (“Cabe”), a licensed land surveyor with approximately thirty years of professional experience . The Poppers also commissioned similar surveys in 2002 and 2003 . Cabe purported to establish the property line, which supposedly corresponded with the center line of the original twelve-foot right-of-way, with the easement extending six feet on either side of the property line . According to Cabe's survey, at various points called out along the survey, the paved road was as far as seventeen feet outside the deeded right-of-way onto Fetty Field .
    Following the completion of the 2002 survey, the Poppers had the roadway marked approximately six and one-half feet beyond the property line as established by Cabe's survey (six inches outside the easement) onto Fetty Field . They then had a chain link fence constructed on this line . The fence almost completely blocked the use of the paved road in places .
    In April 2002, the Joneses filed suit against the Poppers alleging trespass and claiming title to the entire right-of-way by adverse possession . In June 2002, the Poppers counterclaimed alleging trespass and requesting the court to appoint a surveyor tolocate the common boundaries of the Joneses' and Poppers' land. However, in May 2003, the Poppers amended their answer and counterclaim, eliminating their request for a court surveyor, seeking damages for trespass, and requesting judgment, inter alia, quieting title . In June 2003, the Moores filed suit against the Joneses seeking damages for trespass and judgment quieting title . The matters were consolidated for trial by order filed 30 January 2004 .
    At trial, the court directed verdicts at the close of the evidence on all issues except the boundary line and trespass . The court submitted the issue of the placement of the boundary line and the trespass-related issues to the jury . The court framed the boundary line issue thusly: “Is the boundary between the Jones' property and the Popper's property located at the place shown on the survey of Thomas Cabe[?]” The jury found that the boundary line between the Joneses' and the Poppers' property was not where Cabe's survey had located it. Furthermore, the jury found the Poppers had trespassed against the Joneses and found the Joneses were entitled to recover $421.17 in damages. The jury found no trespass by the Joneses against the Poppers or the Moores .
    The Poppers and the Moores made post-trial motions for judgments notwithstanding the verdict, which the trial court allowed . The trial court determined as a matter of law that the boundary line between the Joneses' and the Poppers' property is located at the place shown on Cabe's survey . Based on this boundary line determination, the trial court further determinedthat the Joneses trespassed on the Poppers' and the Moores' property, but the trial court did not award damages to the Poppers or the Moores for such trespass . Additionally, the court conditionally allowed the Poppers' and the Moores' motions for a new trial on the issues of the boundary line location and trespass in the event the judgments notwithstanding the verdict were vacated or reversed . The Joneses appeal.
II. Directed Verdict _ Prescriptive Easement
    The Joneses first argue that the trial court erred in directing verdict on the issue of a prescriptive easement and by not instructing the jury on other easement theories. We disagree.
    “The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citation omitted).
    “A prescriptive easement or right-of-way over the land of another, being acquired in the manner of adverse possession, is disfavored in the law.” Johnson v. Stanley, 96 N.C. App. 72, 74, 384 S.E.2d 577, 579 (1989) (citing Potts v. Burnette, 301 N.C. 663, 667, 273 S.E.2d 285, 288 (1981)). “[M]ere use alone is presumed to be permissive, and, unless that presumption is rebutted, the use will not ripen into a prescriptive easement.” Id. (citing Dickinson v. Pake, 284 N.C. 576, 580-81, 201 S.E.2d 897, 900 (1974)).
        In order to establish an easement by prescription, a claimant must meet thefollowing 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.

Woodring v. Swieter, __ N.C. App. __, __, 637 S.E.2d 269, 276 (2006) (citing Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes, 329 N.C. 37, 45, 404 S.E.2d 677, 682 (1991)).
    The Joneses did not present sufficient evidence to meet the twenty-year requirement. While the Joneses can “tack” their period of alleged adverse use to prior allegedly adverse users, see Connolly v. Robertson, 151 N.C. App. 613, 620, 567 S.E.2d 192, 198 (2002) (“Tacking is a permissible legal principle between a successive and prior adverse user when there is no hiatus or interruption in the possession.”), the Joneses presented no evidence that any prior owner of their property asserted an adverse claim. The Joneses purchased their property in 1998. Accordingly, the Joneses did not present sufficient evidence that their use of the road has been continuously adverse and hostile for a period of twenty years. This argument is without merit.
    We are equally unpersuaded by the Joneses' contention that the trial court should have submitted other easement theories (implied easement, easement by necessity, easement by prior use, etc.) to the jury. The only easement claims asserted by the Joneses in the pleadings were easement by prescription and express easement (easement by deed). By submitting the boundary line issue to thejury, see infra, the trial court implicitly submitted the express easement claim to the jury. The trial court properly did not submit easement theories not advanced in the pleadings to the jury. See Alston v. Britthaven, Inc., 177 N.C. App. 330, 334, 628 S.E.2d 824, 828 (2006) (“It is well-settled that a trial court must submit to a jury all issues that are 'raised by the pleadings and supported by the evidence.'”) (quoting Johnson v. Massengill, 280 N.C. 376, 384, 186 S.E.2d 168, 174 (1972)), disc. review denied, 361 N.C. 218, 642 S.E.2d 242 (2007). This argument is overruled.
III. Boundary Line
    The Joneses next contend that the trial court erred in submitting the issue of the boundary line to the jury. However, since the parties' claims put the boundary line between the Joneses' and the Poppers' property in dispute and because the resolution of these claims was dependent upon the determination of the location of the boundary line, we conclude that the trial court correctly submitted the location of the boundary line to the jury.
    A disputed boundary line may be judicially determined in several types of actions. First, it may be determined in a special proceeding called a processioning proceeding. N.C. Gen. Stat. § 38-1 et seq. (2003). The proceeding is generally heard before the clerk of superior court, and the location of a disputed boundary line is the sole issue that may be decided in the proceeding. Pruden v. Keemer, 262 N.C. 212, 136 S.E.2d 604 (1964). A boundary line location may also be determined incidentally, in the nature of a processioning proceeding, in actions in ejectment, for trespass,and to quiet title. See, e.g., Coffey v. Greer, 241 N.C. 744, 86 S.E.2d 441 (1955); Goodwin v. Greene, 237 N.C. 244, 74 S.E.2d 630 (1953); Clegg v. Canady, 217 N.C. 433, 8 S.E.2d 246 (1940); Cody v. England, 216 N.C. 604, 5 S.E.2d 833 (1939).
    Here, the parties raised various claims, including trespass and ejectment, slander of title, to quiet title, for declaratory judgment, and for injunctive relief. The right or ability of any party to obtain such relief is dependent on the location of the boundary line between the Joneses' and the Poppers' property. Hence, the trial court properly submitted the issue of the location of the boundary line to the jury.
IV. Judgments Notwithstanding the Verdict
    The Joneses next contend that the trial court erred in granting judgment notwithstanding the verdict on the boundary line and trespass issues. We agree.
    The standard of review for judgment notwithstanding the verdict is whether the evidence, when taken in the light most favorable to the non-movant, is sufficient as a matter of law to support a verdict in favor of the non-movant. Streeter v. Cotton, 133 N.C. App. 80, 514 S.E.2d 539 (1999). The evidence is sufficient if there is more than a scintilla of evidence supporting each element of the non-movant's case. Poore v. Swan Quarter Farms, Inc., 94 N.C. App. 530, 380 S.E.2d 577, modified on other grounds, 95 N.C. App. 449, 382 S.E.2d 835 (1989), disc. review denied, 326 N.C. 50, 389 S.E.2d 93 (1990).
A. Boundary Line
    The trial court erred in determining as a matter of law that the location of the boundary line between the Joneses' property and the Poppers' property is located at the place shown on the survey of Thomas Cabe, as set forth in Poppers' Exhibit 2. In reaching its decision, the court relied on the “uncontradicted evidence the Poppers and Moores offered on the location of the boundary line . . . described by witness, Thomas Cabe, a registered surveyor . . . .”
    However, at trial, the Joneses presented the following evidence to contradict the location of the boundary line set out by Thomas Cabe and to support their own placement of the boundary line:
        1.    The deed from James T. Butler to the Joneses for the slaughterhouse property describing the right of way between the Joneses' and the Poppers' property with the property line going down the center of the road.
        2.    Testimony from Don Seagle, who worked in the slaughterhouse and used the road on a daily basis starting in 1946, that the road between the Joneses and the Poppers was not moved when it was paved and was still in its original position.
        3.    Testimony from Linda Jones that the road was not moved when it was paved.    
        4.    Testimony from Cabe that a survey of the road at issue done in or around 1970 did not show the right of way passing through the slaughterhouse structure while Cabe's survey did.
        5.    Testimony from witnesses on both sides that the footprint of the slaughterhouse has not been altered since the 1960s.
        6.    Testimony from long-time residents of the area that the road has not been moved since at least 1976.
        7.    Testimony from Cabe that the description of the property line at issue changed between the deed from Mr. Stiwinter, a previous ownerof Fetty Field, to Mr. Fetty and the deed from Mr. Fetty to the Poppers. As a result, the Poppers received different property from Mr. Fetty than the property Mr. Fetty received from Mr. Stiwinter.
        8.    Testimony from Cabe that based upon the deeds to the Joneses and Fetty, there was a vacant strip of land that was unclaimed between the two of them.
        9.    Testimony from Cabe that when he performed a survey of Fetty Field, he moved the Fetty Field boundary line to encompass this vacant strip.

This evidence, when taken in the light most favorable to the Joneses, tends to show that the center of the road between the Joneses and the Poppers as it exists today is the boundary line between the Joneses' and the Poppers' property. While Thomas Cabe's survey is evidence to be considered by the jury, it is not conclusive evidence in and of itself. Regardless, when reviewing a judgment notwithstanding the verdict, it is not the strength of the moving party's evidence that is considered, but the sufficiency of the non-moving party's evidence. Streeter, 133 N.C. App. 80, 514 S.E.2d 539. Since the Joneses offered more than a scintilla of evidence to support their contended placement of the boundary line, the trial court erred in granting judgment notwithstanding the verdict on the boundary line issue.
B. Trespass
    The Joneses allege the Poppers' construction of a chain link fence on the road between the Joneses' and the Poppers' property constitutes a trespass. In order to establish a trespass to real property, the Joneses must show: (1) possession of the property at the time the trespass was committed; (2) an unauthorized entry bythe defendant; and (3) resulting damage to the plaintiff. Shadow Group, LLC v. Heather Hills Home Owners Ass'n, 156 N.C. App. 197, 579 S.E.2d 285 (2003).
    First, the evidence the Joneses offered to support the placement of the boundary line down the center of the existing road is also sufficient to support their contention that they were in possession of the property at issue, the first element of trespass.
    Second, the testimony of the Joneses and the Poppers established that the Poppers constructed a chain link fence down the center of the paved roadway without the Joneses' consent. This is sufficient evidence to support the second element, an unauthorized entry onto the property at issue.
    Third, Mrs. Jones testified that she received an estimate of $4,500.00 to repair the holes in the road resulting from the construction of the chain link fence. This is sufficient evidence to support the element of damages arising from the trespass. Since the Joneses presented satisfactory evidence on all three elements of trespass, the issues and the evidence should be submitted to the jury, where it then becomes the province of the jury to decide the weight and credibility of the evidence presented and to determine if there was a trespass. See Brown v. Brown, 264 N.C. 485, 141 S.E.2d 875 (1965). As the Joneses presented more than a scintilla of evidence to support each element of trespass, the trial court erred in granting judgment notwithstanding the jury's verdict on the trespass issue.
V. New Trial
    Finally, the Joneses contend that the trial court erred in conditionally allowing the Moores' and the Poppers' motions for a new trial on the boundary line and trespass issues in the event the judgments notwithstanding the verdict were vacated or reversed. In doing so, the trial court determined under Rule 59(a) of the North Carolina Rules of Civil Procedure that the jury manifestly disregarded the instructions given by the court; that the evidence was insufficient to justify the verdict which was given; and that the verdict was contrary to law. N.C. Gen. Stat. § 1A-1, Rule 59 (2003). A trial judge's discretionary order for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown. Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). We find no such abuse of discretion here, and we thus affirm the court's order granting a new trial.
A. Boundary line
    The jury manifestly disregarded the instructions given by the trial court on the determination of the boundary line. The trial court submitted the issue of the boundary line to the jury framed in the following manner: “Is the boundary between the Jones' property and the Popper's property located at the place shown on the survey of Thomas Cabe, Defendant Popper's Exhibit number 2?” The jury was then instructed to determine the boundary line as follows:
        [I]f you find by the greater weight of the evidence that the Poppers have proved that the location of the boundary between the Popper land and the Jones' land is the line shown onPoppers' Exhibit No. 2 on the survey of Cabe, then it would be your duty to answer this first Popper issue in accordance with the Poppers' contentions by designating that line as the location of the boundary.

        If, on the other hand you fail to so find, then it would be your duty to establish the location of the boundary by fixing the line as you find as shown by the greater weight of the evidence and as justified by the greater weight of the evidence.

The jury did not find by the greater weight of the evidence that the Poppers had proved the location of the boundary line and answered the issue as it was submitted to them, “NO.” Failing to so find, they were required by the court's instructions to establish the location of the true boundary by fixing the line wherever the evidence justified its location. This they did not do.
    However, the way in which the trial court framed the boundary line issue essentially precluded the jury from fixing the line in accordance with the evidence and their instructions from the court when the jury did not agree with the Poppers' placement of the line. The boundary line issue submitted to the jury should have been framed as follows: “What is the location of the true boundary between the [Joneses'] land and the [Poppers'] land?” N.C.P.I., Civ. 825.00 (May 2000). The jury is not compelled to agree with either party's contention as to the placement of the boundary line, and framing the issue in this manner would correctly indicate that the jury may locate the boundary wherever the evidence proves it to them to be. Combs v. Woodie, 53 N.C. App. 789, 281 S.E.2d 705 (1981), superseded by statute as stated in Green Hi-Win Farm, Inc.v. Neal, 83 N.C. App. 201, 349 S.E.2d 614 (1986), disc. review denied, 319 N.C. 104, 353 S.E.2d 109 (1987).
    Since this action requires a boundary line to be located, we affirm the trial court's order for a new trial and remand with the instruction to the trial court to follow the pattern jury instructions for the determination of the boundary line.
B. Trespass
    Under the circumstances herein presented, the jury's verdict on the issues of trespass was contrary to law. The trial court correctly instructed the jury on the elements of trespass with the first element being possession of the property. Shadow Group, 156 N.C. App. 197, 579 S.E.2d 285 (2003). The location of the boundary line determines who was in possession of the property at the time the alleged trespass took place. Because the jury did not determine the boundary line, the jury could not legally reach a verdict on the issues of trespass. Accordingly, we affirm the trial court's order for a new trial on the issues of trespass.
    REVERSED in part, AFFIRMED in part, and REMANDED with instructions.
    Judges WYNN and GEER concur.
    Report per Rule 30(e).

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