Parker v. DesherbininÂ, 257 N.C. App. 319

Background

Parker (plaintiff) and the DeSherbinins (defendants) own adjoining lots in New Hanover County; a dispute arose over the precise boundary (the “Disputed Area”) between Lots 4 and 5 of Edgewater Subdivision.
Parker’s 1983 deed to 19 Bridge Rd. incorporates a 1982 Losak survey; Parker installed a chain‑link fence in 1984–85 and maintained the area south of that fence for decades.
The DeSherbinins purchased the adjacent lot in 2013, commissioned a Glenn survey (which differed from the Losak line), and built a house based on the Glenn/Blanchard line; construction proceeded despite Parker’s objections.
Parker sued asserting negligence, nuisance, declaratory judgment, and adverse possession (both under color of title and for 20 years). The trial judge (bench trial) found for defendants, concluding Parker had not shown adverse possession.
On appeal the Court of Appeals held (1) some trial court factual findings (about fence location and maintenance) were unsupported by competent evidence, (2) Parker proved adverse possession south of the fence for the statutory period, and (3) unresolved factual questions remained about whether Parker’s deed/survey provided color of title to the portion north of the fence—requiring remand.

Issues

Issue	Parker’s Argument	DeSherbinins’ Argument	Held
Did the trial court have competent evidence for findings that Parker’s fence was placed on the boundary and that the Disputed Area was overgrown/unmaintained?	The record and Parker’s survey/photos show the chain‑link fence was inside Parker’s claimed line (per Losak) and Parker maintained the area south of the fence; thus the court’s findings were unsupported.	The DeSherbinins contended the precise fence location could not be fixed more precisely on the record.	Court of Appeals: Trial court findings (¶37, ¶39) lacked competent evidence and are reversed in part.
Did Parker obtain title by adverse possession (20‑year possession) of the portion of the Disputed Area south of the chain‑link fence?	Parker argued his decades of open, notorious, exclusive, continuous, and hostile possession south of the fence met the 20‑year prescriptive period.	DeSherbinins argued Parker failed to show the required elements across the Disputed Area.	Court: Parker’s uncontradicted evidence establishes adverse possession of the area south of the fence; trial court erred to the extent it denied that claim.
Is Parker entitled to the entire Disputed Area under adverse possession with color of title (shorter, 7‑year period) based on his deed referencing the Losak survey?	Parker argued his deed and incorporated Losak survey constitute color of title covering the disputed tract (lappage doctrine), so possession south of the fence ripens into title to the whole described tract.	DeSherbinins argued the Losak survey was erroneous and Parker failed to prove the deed description fits the ground; thus color of title cannot be invoked.	Court: There are unresolved factual issues whether Parker’s deed/Losak survey can be fitted to the ground; remand required for findings whether color of title applies.
Were Parker’s nuisance and negligence claims properly dismissed with prejudice?	Parker maintained dismissal was premature because the true boundary was not resolved; potential setback violations depended on final boundary.	DeSherbinins argued their reliance on their survey/permit process negated negligence and no nuisance occurred.	Court: Vacated dismissal of nuisance and negligence claims because the boundary remains unresolved; remand for further findings.

Key Cases Cited

In re Estate of Trogdon, 330 N.C. 143 (bench trial standard — judge as fact‑finder)
Hanson v. Legasus of North Carolina, LLC, 205 N.C. App. 296 (non‑jury findings conclusive if supported; conclusions of law reviewed de novo)
Jones v. Miles, 189 N.C. App. 289 (elements for adverse possession)
Federal Paper Board Co. v. Hartsfield, 87 N.C. App. 667 (adverse possession requires actual, open, notorious, exclusive, continuous, hostile possession)
Blue v. Brown, 178 N.C. 334 (fence and long maintenance can support adverse possession)
McDaris v. "T" Corp., 265 N.C. 298 (requirements for deed to constitute color of title and fitting description to the ground)
Wachovia Bank & Tr. Co. v. Miller, 243 N.C. 1 (lappage doctrine: possession under color of title may extend to the whole described tract)
Chappell v. Donnelly, 113 N.C. App. 626 (plaintiff must fit deed description to the land to establish adverse possession)
Andrews v. Bruton, 242 N.C. 93 (proof requirement to locate deed description upon the earth's surface)