*1 663 Potts v. Burnette POTTS, POTTS; B. POTTS and MAVIS L. WAYNE ARTHUR H. DON WADE CEMETERY; POTTS, H. POTTSMEMORIAL BOBBY TRUSTEES OF JOHN McDANIEL; McDANIEL; wife, R. McDANIEL and NANCY M. DONALD E. wife, S. McDANIEL v. W. BUR B. McDANIEL JOANN J. and and FRED BURNETTE; wife, LEE ESTELLE JUDY BURNETTE ROG NETTE ROGERS; BURNETTE; husband, HENRY ALEXANDER JAMES ERS BURNETTE; wife, JUANITA DENNIS HALL T. BURNETTE C. BURNETTE
No. 108 January (Filed 1981) possession adverse 6.1—elements of § Easements 1. prevail by prescription, to in an action to establish an easement In order a prove greater weight
plaintiff (1) elements ofthe evidence: adverse, right; (2) the use is hostile or under a claim of that that the use has claim; open that the and notorious such true owner had notice of been uninterrupted period years; has been continuous and for a of use at least 20 identity throughout there of the easement claimed is substantial year period. — 6.1; prescriptive pre- § Adverse Possession 2— § Easements easements 2. permissive sumption of use Supreme presumption permissive will adhere Court use adopt prescriptive and will not easement cases use. hostile — 6.1; prescriptive Possession Adverse 25.1— § Easements 3. - sufficiency of evidence rebuttal a easement in a In an action establish across defend- land, plaintiffs’ presumption permis- was sufficient to rebut the ants’ and to allow a to conclude that the under such used sive circumstances under as that the use was notice hostile and right open that the use a claim and notorious and with defend- knowledge acquiescence, disputed where it tended to showthat the plaintiffs’ ants’full roadway cemetery means of access to land and the located has thereon years; title, of at no least 50 for use has occasion,smoothed, given; plaintiffs, graded on at least one ever been and road, have, it; attempted gravelled the onother occasions to work on and privilege. be a and not considered their use participate in Brock consideration or this case. did not decision of Justice dissenting. Branch Chief discretionary plaintiffs’ petition for review of the decision
On Appeals, App. (1980), 2d the Court of reversing following jury April entered verdict on 16 County. Leatherwood, Judge, in the District JACKSON IN THE SUPREME COURT *2 brought by primary appeal The issues forward are presumption adhere to the whether this State should of adopt presumption use easement cases of use, presumption permissive- if we adhere to the hostile ness, plaintiffs’ adequately presump- whether evidence rebuts that Although adopt hostility to tion. decline by urged upon plaintiff-appellants, appellants’ us we hold that permissiveness was sufficient to rebut the Appeals. reverse the Court of Henson, Rodgers, by Henson, Cabler plaintiff- & J. Edwin for appellants. Orr, Orr, Payne Kelley, & defendant-appellees. Robert F. for CARLTON, Justice.
I. long-continued arose plaintiffs This case out of use of a roadway get plaintiffs’ over defendants’ to and from brought Plaintiffs this action to land. establish their to use roadway by defendants’ virtue of an prescription easement enjoin interfering plaintiffs’ defendants from with theof road. alleged complaint plaintiffs In prede- and their openly in title had leading cessors used a road lands across the lands of State by plaintiffs No. and that Road and their open, notorious, hostile, in title had been adverse and period fifty years. continuous for of more than complaint alia, enjoin requested, inter court defendants from inter- fering roadway permanent with their use of the and decree a existing plaintiffs’ in favor of land. De- allegations denied the complaint. fendants material of the trial, plaintiffs’ At evidence tended to show that the road in question substantially had fifty existence for more than years essentially and had remained in the same location. The road is plaintiffs’ property. means access for vehicular traffic Plaintiffs, public members of their families have used the fifty years road at least to reach land for social and agricultural purposes and also to visit and attend funerals Cemetery, John H. Potts Memorial which upper is located in the corner of land. Neither nor members prede- requested permission of defendants or their have ever given. Plaintiffs to use the road and none has been cessors title by smoothing, gravelling upgrading maintained the road have presented no but it on at least one occasion. Defendants verdict, close of the was denied. At the moved for a directed evidence, jury: “(1) Have submitted to the issue was predecessors used the the Plaintiffs and their in interest adversely notoriously, openly, over Defendant’s land [sic] answered, twenty (20)years or more?” The continuous “Yes,” Judge judgment granting plain- Leatherwood entered right-of-way permanent over defendants’ tiffs a easement for a road enjoining permanently restraining defendants from lands “blocking, obstructing, fencing, chaining, inter- or in manner fering Defendants.” with Plaintiffs’ easement the lands of the over *3 judgment (b) notwithstand- Defendants’ motion under Rule 50 ing the verdict denied. Appeals appealed reversed.
Defendants and the Court of Judge Arnold, Judge Judge opinion Morris and in an in which Chief concurred, go Vaughn insufficient found evidence hostility were held that defendants on the issue of notwithstanding the to a directed verdict or a entitled discretionary re- thereupon petitioned for our verdict. Plaintiffs decision, granted Appeals’ on 15 the Court of which view of August 1980. pertinent out below. decision will be set
Other facts to our
II.
and, thus, a
verdict
are entitled to a directed
Defendants
when
judgment notwithstanding
if the
the verdict
plaintiffs, fails to show
most favorable to
considered
every
required to establish an ease
existence of each and
element
576, 583, 586, 201
Pake,
by prescription.
N.C.
Dickinson v.
284
ment
897, 902,
Sizemore,
Scope
Philo
(1974);
General
S.E. 2d
903
1,
Rules,
(1969); see
sophy
Forest L. Rev.
of the New
5 Wake
Dickens,
(1977); Summey v.
356, 237
2d 832
v.
293 N.C.
S.E.
Snider
640,
Kelly
Cauthen,
(1973);
v. Harvester
283 N.C.
or under a claim of This Court occasions, meaning requirement. several considered the In cases, the most recent of these principle long
S.E. 2d we reiterated the established in a line of cases that: permissive,
“To establish that a use is ‘hostile’rather than necessary ‘it is not troversy, to show that there was a heated con will,
or a manifestation of ill
or that the claim
enemy
ant was in
sense an
of the owner of the servient
simply
estate.’
A ‘hostile’ use is
a use
[Citations omitted.]
of such nature and exercised under such circumstances
being
as to manifest and
notice that the use is
made
right.”
Paires,
under a claim of
260-61, 145
Dulin v.
N.C.
*4
873,
(1966)].
S.E. 2d
There must be some
accompanying
repel
the user which tends to
the
permissive
inference that it is
and with the owner’s con
permissive
way
sent.
A mere
use of a
[Citations omitted.]
land,
long may
continued,
over another’s
however
it
be
ripen
by prescription.
can never
an
into
easement
[Cita
tions omitted.]
Pake,
284 N.C.
[2] Much confusion and
controversy
have
arisen over the
require
vigorously
ment that the use be hostile.1 Plaintiffs
urged
have
us to
reject
position
presumed
present
that a user
our
is
to be
development
prescriptive
the
law
an excellent discussion of
the
1For
opinion in Dickinson v.
in North Carolina see Justice Huskins’ learned
easements
Pake,
576,
N.C.
On Huskins, writing affirming judgment, for reversed. most favorable viewed found the following: to establish the sufficient family continuously uninterruptedly Lupton located, substantially Lupton as Drive now enjoyment of purposes to the use and and all incident property, 1968 as their means from 1938 until Road; (2) property to the Lennoxville access from their *5 (1979) Powell, Property cited at cases 34-113 of Real R. The Law 2 3 18; Property and cases cited Thompson, at n. Real therein at G. at n. 28. therein THE IN SUPREME COURT v. Potts Burnette the use of road said commenced before defendants acquired the servient estate and was continued under give such as to circumstances defendants notice that the adverse, hostile, right; was under claim open and use was knowledge notorious and with defendants’ full acquiescence. Faires, Dulin 2d 873 S.E. 284 N.C. at 2d at 902. [3] We think Dickinson controls the disposition this case. Plain light, tiffs’ viewed most favorable shows that disputed roadway plaintiffs’ means of access to land cemetery openly thereon and located has been by plaintiffs, title their and the fifty years. of at least No has ever been given. occasion, Plaintiffs, smoothed, graded least one gravelled road, have, occasions, attempted on other to work Although on it. thought there no evidence that road, owned there was abundant that consid ered their right privilege. use of the road to be a not a This evidence is sufficient rebut the allow, compel, jury
and to but not to conclude that the road was used under such circumstances as to notice that hostile, use was and under claim and that the use knowledge and with notorious defendants’ full acquiescence.
We conclude evidence tends to establish existence of easement, essential element of claim for a jury We, therefore, verdict must stand. reverse the Court of and remand to that court with directions to County, entry remand to judg- the District Jackson ment in plaintiffs. with the accordance verdict favor of Reversed remanded. participate Justice did not consideration or deci- BROCK
sion of this case. dissenting. Chief BRANCH agree I upon majority with the rules of law which the relies. However, taking the evidence most favorable to glean I am unable to record evidence which is sufficient to overcome the use of *6 TERM 1980 FALL State v. Maines permissive. road was It is true that there is evidence that on one plaintiffs scraped roadway, occasion but on that occasion de- permit scrape portion fendants did not them to a certain of the land. occasion, On another the evidence discloses that bring of defendants to in a bulldozer in order to widen a portion lying my opinion, land. In these acts hostile, are not consistent with a adverse use or a use under claim of right. contrary, To the such acts per- seem to be consistent with a missive use. I vote to affirm the Appeals. decision of the Court of
STATE OF NORTH CAROLINA v. JERRY MAINES
No. 118 (Filed January 1981) Larceny possession recently property 1. 7.4— stolen § presumption spawned possession recently property stolen arises when, only when, beyond prop- the State shows a reasonable doubt that the stolen; erty goods described the indictment was the stolen were found in de- custody subject disposition
fendant’s and necessarily to his control and to the exclusion of others, though person long not found in hands or on his defendant’s so power goods; possession he intent to control as recently had larceny, being possession property after the mere of stolen insufficient to guilt. presumption raise the 5.9; Burglary Breakings Larceny breaking 7.4— 2. and Unlawful — entering larceny possession recently property stolen support the conviction of defendant of Evidence insufficient felonious entering larceny possession breaking recently under doctrine of persons where it to show that defendant was stolen tended one of four goods; stolen the State did not demonstrate a criminal a car contained among four; only conspiracy possessory one of the four claimed a interest car; goods; person defendant, owned the stolen also order to convict possessed goods driving infer that he the mere fact of with the him, beside and then infer he was the thief owner of the car seated that stole them recently goods, possession stolen based on the such a conviction based on inferences could not stand. stacked participate Brock not did consideration or decision of this case. Appeals, defendant from decision of the Court of APPEAL App. (1980), upholding judgment S.E.2d 268 48 N.C. McConnell, J., Superior
entered 18 October Court. ASHE