Parker v. DesherbininÂ
256 N.C. App. 55
| N.C. Ct. App. | 2017Background
- Neighboring lots in New Hanover County: Parker (19 Bridge Rd.) acquired in 1983 by deed that incorporated a 1982/1983 Losak survey; DeSherbinins bought 1450 Edgewater Club Rd. in 2013 and relied on a 2013 Glenn survey.
- Glenn survey located the boundary several feet south of the Losak line; Appellees built a house based on Glenn.
- Parker installed a chain‑link fence in 1984–85 located between the Losak and Glenn/Blanchard lines and maintained the south side of that fence for decades.
- Trial court found Blanchard’s 2016 survey established the true boundary (favoring DeSherbinins), and concluded Parker had not shown adverse possession (open, notorious, continuous) of any disputed area.
- Parker appealed; this Court found some trial findings unsupported, held Parker proved adverse possession of the area south of the chain‑link fence for the 20‑year statutory period, reversed the adverse‑possession ruling to that extent, and remanded for further findings on whether Parker’s deed/survey furnish color of title to the remainder of the disputed area (which would shorten the prescriptive period to seven years).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse possession of area south of chain‑link fence (20 years) | Parker maintained, used, and exclusively possessed the land south of the fence continuously since mid‑1980s, satisfying elements for 20‑yr prescriptive title | DeSherbinins contended no adverse possession established | Held: Parker proved actual, open, notorious, exclusive, continuous hostile possession south of fence for statutory period; trial court erred to the contrary — title to that portion must be quieted for Parker |
| Adverse possession under color of title to entire disputed area (7 years) | Parker’s deed references the Losak survey and thus may be color of title covering the disputed tract (lappage principle) | DeSherbinins argued survey/deed description does not properly fit the ground and thus cannot serve as color of title | Held: Remanded — trial court must make findings whether Parker’s deed/survey can be fit to the ground; if so, Parker may prevail to entire disputed area under color of title / lappage doctrine |
| Adequacy of trial court findings re fence and possession | Parker pointed to uncontradicted testimony, photos, and Riggs survey showing fence location and maintained south‑side possession | DeSherbinins relied on trial court’s credibility findings for Blanchard and survey result | Held: Trial court findings that fence was on the boundary and that disputed area was overgrown were unsupported; court must, if necessary, direct surveyor to physically locate fence and make findings |
| Nuisance and negligence claims | Parker alleged nuisance/negligence from construction | Parker abandoned these claims on appeal | Held: Issues abandoned on appeal; trial court judgment on nuisance and negligence affirmed |
Key Cases Cited
- McDaris v. "T" Corp., 265 N.C. 298 (explains that deed used as color of title must be fitted to the ground; plaintiff must prove deed boundaries cover disputed land)
- Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1 (establishes lappage principle: color of title to a described tract allows adverse possession to ripen to whole tract if boundaries are visible and no other adverse possession exists)
- Federal Paper Board Co. v. Hartsfield, 87 N.C. App. 667 (states elements required to acquire title by adverse possession)
- Blue v. Brown, 178 N.C. 334 (supports that longstanding fences and possession can justify adverse possession)
- Chappell v. Donnelly, 113 N.C. App. 626 (explains burden to locate deed descriptions on the ground when claiming adverse possession)