Thе single issue on appeal is whether plaintiff presented sufficient evidence at trial to establish each essential element оf an easement by prescription, and, thus, permit submission of the question to a jury. We hold that she did and the trial court’s entry of judgment notwithstanding the verdict was error.
Plaintiff instituted this action in June 1985 seeking a permanent injunction against defendants to restrain them from obstructing a roadway over lаnds of the defendants in which plaintiff claims an easement by prescription.
Plaintiff alleged in her complaint that she and her predecessors in title have used the roadway over defendants’ land for ingress and egress to plaintiffs farm for the purpose of cultivating, *528 harvesting, and transporting crops grown thereon. Plaintiff further contends this use of the roadway has been hostile, open, notorious, and continuous for a period of at least forty years. Defendants denied the material allegations of the complaint.
At trial, plaintiffs evidence tended to show that her use of the roadway was without permission; was under a claim of right; and that she and her agent used the roadway at аll hours of the day during the farming seasons. Plaintiff and her predecessors in title began using the roadway in 1942, and have used it every season the land was farmed until the roadway was blocked by defendants in May 1985. The roadway in question has been in existence for substantially more than forty years and has remained in essentially the same location.
After the trial court denied defendants’ motion for a directed verdict, the issue of whether an easement by prescription had been created in the roadway was submitted to the jury. The jury returned judgment in plaintiffs favor, granting plаintiff a permanent easement in the roadway over defendants’ land. Defendants filed a motion under N.C.G.S. § 1A-1, Rule 50(b) for judgment notwithstanding the verdict, which thе trial court granted, setting aside the judgment for plaintiff, and entering judgment for defendants. Plaintiff appeals to this Court.
Other facts pertinent to this decision will be set out below.
A motion for a judgment notwithstanding the verdict, like a motion for a directed verdict, will be granted only if the evidencе, considered in the light most favorable to the plaintiff, is insufficient as a matter of law to justify a verdict for the plaintiff.
Potts v.
Burnette,
To obtain a prescriptive easement plaintiff must establish four elements by the greater weight of the evidence: “(1) that the use is adverse, hostile or under claim of right; (2) that the use has been open and notorious such that the true owner had notice of the claim; (3) that the use has been continuous and uninterrupted
*529
for a period of at least twenty years; and (4) that there is substantial identity оf the easement claimed throughout the twenty-year period.”
Potts v. Burnette,
The first element, a hostile use, is defined as “simply a use of such nature and еxercised under such circumstances as to manifest and give notice that the use is being made under claim of right.”
Dulin v. Faires,
In
Dickinson
and
Potts,
actions taken by the plaintiffs to maintain or improve the roadway underlying the prescriptive easement were sufficient to rebut the presumption of permissive use. In
Dickinson,
plaintiffs raked leaves and scattered oyster shells in the roadway, performing the slight maintenance required to keep the road in passable condition.
Dickinson,
In the case sub judice David White, plaintiffs agent, testified at trial that he placed brickbats and rocks in holes, hauled sand to fill in low areas, and cut trees and bushes in order to maintain the roadway fоr plaintiffs use. White’s testimony is corroborated in part by defendant K. C. Williams’ testimony that he found brickbats and rock debris in the roadway, when the roаdway was washed out by flooding. No permission was ever asked or given to use the farm path, and statements made by plaintiff and her agent to defendants show they believed their use of the road was by right and not by privilege. This evidence was sufficient to rebut the presumption of pеrmissive use.
The second element, open and notorious use, requires that the use be “not only under a claim of right, but that it is open and of suсh character that the true owner may have notice of the claim.”
Snowden v. Bell,
The third element, continuous and uninterrupted use for a period of at least twenty years, requires that the use be exercised more or less frequently, according to the nature and purpose of the easement.
Dickinson v. Pake,
The fourth and final element, that there be substantial identity of the easement claimed throughout the twenty-year period, was not in issue at the trial. The exhibits presented by both plaintiff and defendants clearly identifiеd the roadway as being in the same location, and both parties agreed that its location had not deviated substantially since 1942.
Plaintiff presented sufficient evidence, through the use of exhibits and testimony, establishing each of the four elements required for finding the existence of a permanent prescriptive easement.
Defendants did not challenge the competency of plaintiffs evidence. Thе single issue remaining at trial was the credibility of plaintiffs evidence, a question reserved exclusively for the jury’s determination. “Appellate courts, absent error of law, are bound by the jury’s verdict.”
Norwood v. Sherwin-Williams Co.,
Reversed and remanded.