Concerned Citizens of Brunswick County Taxpayers Ass'n v. Holden Beach Enterprises, Inc., No. 8813SC1075

Docket NºNo. 8813SC1075
Citation381 S.E.2d 810, 95 N.C.App. 38
Case DateAugust 15, 1989
CourtCourt of Appeal of North Carolina (US)

Page 810

381 S.E.2d 810
95 N.C.App. 38
CONCERNED CITIZENS OF BRUNSWICK COUNTY TAXPAYERS
ASSOCIATION, Raymond Cope and Royal Williams and State of
North Carolina, ex rel, S. Thomas Rhodes, Secretary of the
Department of Natural Resources and Community Development
v.
HOLDEN BEACH ENTERPRISES, INC.
No. 8813SC1075.
Court of Appeals of North Carolina.
Aug. 15, 1989.

Attorney Gen. Thornburg by Asst. Atty. Gen. J. Allen Jernigan, Raleigh, for the State.

Maxwell, Freeman & Beason by James B. Maxwell, Durham, for plaintiffs-appellants.

Murchison, Taylor, Kendrick, Gibson & Davenport by Vaiden P. Kendrick, Barbara J. Sullivan, and Reid G. Hinson, Wilmington, for defendant-appellee.

EAGLES, Judge.

The issues here all relate to whether the public may have access through defendant's property to the beach at Shallotte Inlet. Specifically, appellants assign as error the trial court's denial of a prescriptive easement for public access through Holden Beach [95 N.C.App. 41] West and the trial court's failure to find that there has been a dedication of Ocean View Boulevard West. We affirm.

Initially we note that when the trial court is the factfinder its findings of fact are conclusive on appeal if supported by any competent evidence even though there is evidence which might support a contrary finding. Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975). Our standard of review in a declaratory judgment action is whether the record supports the trial court's findings and whether the findings support the trial court's conclusions. Insurance Co. v. Allison, 51 N.C.App. 654, 277 S.E.2d 473, disc. rev. denied, 303 N.C. 315, 281 S.E.2d 652 (1981).

In West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985), our Supreme Court restated the elements necessary to establish a prescriptive easement:

1. The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement.

2. The law presumes that the use of a way over another's land is permissive or with the owner's consent unless the contrary appears.

3. The use must be adverse, hostile, or under a claim of right....

4. The use must be open and notorious....

5. The adverse use must be continuous and uninterrupted for a period of twenty years....

6. There must be substantial identity of the easement claimed....

Id. at 49-50, 326 S.E.2d at 610-611.

Plaintiffs and intervenor-plaintiff presented evidence which tended to show the following. Loie Priddy, a land surveyor with the North Carolina Geodetic Survey, testified as an expert witness in coastal surveying and interpretation of aerial photography. Using aerial photographs and maps of the Shallotte Inlet and Holden Beach areas which spanned from 1962 until 1972 Priddy testified that there were several definite trails through defendant's property. He described the trails as "several pedestrian appearing trails going to the beach and one vehicular trail." On each of the photographs[95 N.C.App. 42] he testified that the vehicular trail began at the end of a paved road, Ocean View Boulevard, and that the trail continued west about 3200 feet to a large sandy overwash area. In this overwash area Priddy could not detect any trails but was able to point to a number of trails emerging from the west edge of the overwash towards the beach. The overwash area he explained was a low spot which

Page 813

resulted from Hurricane Hazel in 1954. Additionally, because the overwash was a low spot in the terrain it was subject to continued flooding which would obliterate any trails through that area.

Harrell Paden, a long-time Brunswick County resident, testified that from about 1930 until the 1950s he and his family had been going to the Shallotte Inlet area of Holden Beach on a seasonal basis to fish. He stated that the owner of the property, Peter Robinson, allowed people to use the property. He further testified that he used the pathway described by Priddy to get to the beach. Paden claimed that the pathway he used was in the same general location as the present Ocean View Boulevard West. He also testified that the present road is straighter than the pathway and located a little further away from the beach. Until about 1972 Paden's trips to the beach were unimpeded. However, in 1972 the owners of the property put a log across the road at approximately the same spot where the guardhouse is now located. Paden stated that a short time later the log disappeared and he continued using the road to get to the beach. Two or three years later a farm gate was put up to block the road.

Kermit Coble, a former member of the Holden Beach Town Council, next testified that he first came to Holden Beach in 1954. He frequently visited the Shallotte Inlet using the pathway which continued west after the paved road stopped. Coble testified that Ocean View Boulevard West was within 100 feet of the pathway he had used to get to Shallotte Inlet. He further testified that until a log was placed across the pathway he had never been prevented from using it to get to Shallotte Inlet. Coble stated that the log was placed across the trail during the 1960s. After a short time a cable replaced the log and a little later a gate was placed. While the gate was kept locked, he could get the key from a realtor and use the pathway for access to the beach.

Plaintiff Raymond Cope, a member of the Association, testified that he and his family had been camping on the west end of Holden [95 N.C.App. 43] Beach since 1973 or 1974. He would drive to the beach by driving west onto a path at the end of Ocean View Boulevard to the beach. Cope said that at least once or twice a month during the summer he would bring his family to this beach. He also testified that there is not much difference in location between the present road and the path he used to drive to Shallotte Inlet.

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5 practice notes
  • Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes, No. 401PA89
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 12, 1991
    ...Decided June 12, 1991. Page 678 [329 N.C. 38] On discretionary review pursuant to N.C.G.S. § 7A-31 of a decision of the Court of Appeals, 95 N.C.App. 38, 381 S.E.2d 810 (1989), which affirmed a judgment entered for defendant by Briggs, J., at the 9 November 1987 Civil Session of Superior Co......
  • Waterway Drive Prop. Owners' Ass'n, Inc. v. Town of Cedar Point, No. COA12–614.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 18, 2012
    ...by the payment of their ad valorem taxes.” Concerned Citizens of Brunswick County Taxpayers Ass'n v. Holden Beach Enterprises, Inc., 95 N.C.App. 38, 46, 381 S.E.2d 810, 815 (1989), rev'd on other grounds sub nom. Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes......
  • State v. Lynch, No. COA13–1193.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 2, 2014
    ...was entitled to an instruction on a lesser included offense that did not require the intent to kill. Id.at 190–91, 381 S.E.2d 808, 381 S.E.2d at 810.In the instant case, the State's evidence was positive as to each element of the charged offense, and there is no contradictory evidence of de......
  • Nies v. Town of Emerald Isle, No. COA15–169.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • November 17, 2015
    ...individual property owners of some portion of their property rights without compensation. Concerned Citizens v. Holden Beach Enterprises, 95 N.C.App. 38, 46, 381 S.E.2d 810, 815 (1989) (Concerned Citizens I ), rev'd, Concerned Citizens v. Holden Beach Enterprises, 329 N.C. 37, 404 S.E.2d 67......
  • Request a trial to view additional results
5 cases
  • Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes, No. 401PA89
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 12, 1991
    ...Decided June 12, 1991. Page 678 [329 N.C. 38] On discretionary review pursuant to N.C.G.S. § 7A-31 of a decision of the Court of Appeals, 95 N.C.App. 38, 381 S.E.2d 810 (1989), which affirmed a judgment entered for defendant by Briggs, J., at the 9 November 1987 Civil Session of Superior Co......
  • Waterway Drive Prop. Owners' Ass'n, Inc. v. Town of Cedar Point, No. COA12–614.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 18, 2012
    ...by the payment of their ad valorem taxes.” Concerned Citizens of Brunswick County Taxpayers Ass'n v. Holden Beach Enterprises, Inc., 95 N.C.App. 38, 46, 381 S.E.2d 810, 815 (1989), rev'd on other grounds sub nom. Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes......
  • State v. Lynch, No. COA13–1193.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 2, 2014
    ...was entitled to an instruction on a lesser included offense that did not require the intent to kill. Id.at 190–91, 381 S.E.2d 808, 381 S.E.2d at 810.In the instant case, the State's evidence was positive as to each element of the charged offense, and there is no contradictory evidence of de......
  • Nies v. Town of Emerald Isle, No. COA15–169.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • November 17, 2015
    ...individual property owners of some portion of their property rights without compensation. Concerned Citizens v. Holden Beach Enterprises, 95 N.C.App. 38, 46, 381 S.E.2d 810, 815 (1989) (Concerned Citizens I ), rev'd, Concerned Citizens v. Holden Beach Enterprises, 329 N.C. 37, 404 S.E.2d 67......
  • Request a trial to view additional results

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