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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 September 2007
FRANKLIN G. JONES and wife,
LINDA RUSSELL JONES,
No. 02 CVS 167
RAYMOND A. POPPER and wife,
AUDREY A. POPPER,
NEIL MOORE and wife,
No. 03 CVS 304
FRANKLIN G. JONES and wife,
LINDA RUSSELL JONES,
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.
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
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
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
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
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
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
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
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
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
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.
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
[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
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.
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
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
Judges WYNN and GEER concur.
Report per Rule 30(e).
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