Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes, No. 401PA89

Docket NºNo. 401PA89
Citation329 N.C. 37, 404 S.E.2d 677
Case DateApril 12, 1991
CourtUnited States State Supreme Court of North Carolina

Page 677

404 S.E.2d 677
329 N.C. 37
CONCERNED CITIZENS OF BRUNSWICK COUNTY TAXPAYERS
ASSOCIATION, Raymond Cope and Royal Williams
v.
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. 401PA89.
Supreme Court of North Carolina.
Heard 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 Court, Brunswick County. Heard in the Supreme Court 12 April 1990.

Maxwell & Hutson, P.A. by James B. Maxwell, Durham, for plaintiffs-appellants.

Lacy H. Thornburg, Atty. Gen. by Daniel F. McLawhorn, Sp. Deputy Atty. Gen., and J. Allen Jernigan, Asst. Atty. Gen., Raleigh, for intervenor-plaintiff-appellant.

Murchison, Taylor, Kendrick, Gibson & Davenport by Vaiden P. Kendrick and Barbara J. Sullivan, Wilmington, for defendant-appellee Holden Beach Enterprises.

Page 679

MEYER, Justice.

In this case, we once again face the question of whether there was sufficient evidence of the establishment of an easement by [329 N.C. 39] prescription by the public's use of a pathway along and across the shifting dunes of an area on the Outer Banks of North Carolina. The area in question is privately owned but over the years has been crossed by the public seeking access to the ocean strand and inlet for fishing and recreation. A portion of the prescriptive easement sought to be established is alleged to be sufficiently similar to a road marled and paved some years later across the same lands such that the public has acquired a right to the use and enjoyment of that paved road. A collateral issue is whether the evidence supported the trial judge's conclusion that, from time to time, defendant had barred public use of the roadway so as to interrupt the continuity of the use over the period of time required to establish an easement by prescription. With regard to the issue of the sufficiency of the evidence of the establishment of an easement by prescription, we conclude that the trial judge employed an erroneous standard in reaching his determination that there was insufficient evidence. We also address the collateral issue regarding interruption of the public's continuity of use for the requisite period and conclude that the evidence does not support the trial judge's finding of fact and conclusion of law that defendant had successfully interrupted adverse use by the public so as to defeat the establishment of the easement by prescription. We remand this case for a new trial on the merits employing the proper standard as to the sufficiency of the evidence to establish an easement by prescription.

On 13 August 1986, plaintiffs Concerned Citizens of Brunswick County Taxpayers Association and two individuals initiated this action after defendant erected a guardhouse in July 1985 blocking public access over a roadway crossing defendant's property. Plaintiffs sought to have this roadway declared a public right-of-way by virtue of prescriptive use. In the alternative, plaintiffs alleged that defendant Holden Beach Enterprises, Inc., or its predecessor in interest, Holden Beach Realty Corporation, had dedicated the roadway to public use. The State of North Carolina, ex rel. S. Thomas Rhodes, Secretary of the Department of Natural Resources and Community Development, intervened in 1987 on the ground that it was the designated state agency authorized to manage public beach accessways under N.C.G.S. §§ 113A-134.1 and 113A-134.2. The State did not assert the public trust doctrine as an independent means of acquiring rights to the road. The trial judge concluded at the end of defendant's evidence that the public held no prescriptive[329 N.C. 40] easement in the road due to changes in the location of the path and interruptions of use during the prescriptive period. The judge also concluded that there had been no offer or acceptance of dedication of the roadway. The Court of Appeals affirmed in all respects, 95 N.C.App. 38, 381 S.E.2d 810, and we granted the plaintiff-appellants' petition to review the issue of the prescriptive easement. The acceptance and dedication issue is not before this Court for review.

The easement sought by the plaintiffs is over property located at the far western end of what is now Holden Beach. Holden Beach is a sandy barrier island made up largely of sand dunes and beach vegetation, lying on a generally east-west axis off the coast of North Carolina in Brunswick County. To the west of the island is Ocean Isle; to the east, Long Beach. The Atlantic Intracoastal Waterway separates the north shore of Holden Beach from the mainland. Lockwood Folly Inlet connects the Intracoastal Waterway to the Atlantic Ocean on the eastern shore of the island, and Shallotte Inlet offers passage to the ocean on the western shore. The road over which plaintiffs claim a public prescriptive easement is now known as "Ocean View Boulevard West" and is located within the Holden Beach West Subdivision.

Prior to the dredging of the Intracoastal Waterway in the early 1930s, Holden Beach was in fact two islands of roughly equal size. To the east lay Holden Beach, and to the west was Robinson's Beach. Separating the two near where the Holden Beach

Page 680

Fishing Pier now stands was an inlet known variously as Meares or Mary's Inlet. What is now the Intracoastal Waterway was formerly a creek, and a wooden bridge suitable for use by automobiles spanned that creek. It was by this bridge that the public could reach Holden Beach from the mainland. Testimony indicated that until Meares Inlet was filled with the tailings dredged from the Intracoastal Waterway project, Robinson's Beach was not accessible to automobile traffic. At the time of the project to construct the Intracoastal Waterway, the Holden family owned the original island of Holden Beach through a land grant received from Governor Dobbs in 1735. In exchange for land lost to the Intracoastal Waterway, the State granted the Holdens a covenant to provide access to Holden Beach in perpetuity. This access initially took the form of a two-car ferry, which the State eventually replaced with a bridge in 1953.

[329 N.C. 41] Until the early 1960s, the land on the far western end of what is now Holden Beach was owned jointly by two families, the Robinsons and the Bellamys. There were no houses or paved roads on the island during the 1920s and 1930s. In 1962, the Holden Beach Realty Corporation, predecessor to defendant Holden Beach Enterprises, Inc., purchased the tract of land now known as Holden Beach West Subdivision from the Robinson and Bellamy families. This tract extends approximately one mile east of the Shallotte Inlet and includes the entire western tip of the island. A significant physical feature of this property is a low-lying area approximately 2,000 feet long caused by overwash of the ocean from Hurricane Hazel in 1954 and which has been frequently overwashed since that time. The eastern end of the overwash lies approximately 1,400 feet from the eastern property line. From time to time, storm tides have reflooded the area, obliterating trails and destroying vegetation in the overwash.

Development on what is now Holden Beach began unmistakably in the 1940s when the State began a gradual process of paving an east-west road across the island. The road, which has since come to be known as "Ocean Boulevard," started at the ferry landing near Lockwood Folly Inlet and, by the time Hurricane Hazel struck the island in 1954, reached some distance past the Holden Beach Fishing Pier. By 1962, the paved road extended west approximately two and a half miles past the pier but fell short of the subdivision property line by some 2,880 feet, slightly over one-half mile. There existed at this point an area called "the west turn around," which people used to turn their cars around, to park their cars, and to gain both pedestrian and vehicular access to the beach. Not until 1982 or 1983 did the State pave the 2,880 foot segment of Ocean Boulevard running from the west turn around to the boundary line of defendant's property. It is the extension from the end of Ocean Boulevard known as "Ocean View Boulevard West" over which the prescriptive easement is claimed.

During the years 1977 and 1978, defendant's predecessor in interest, Holden Beach Realty Corporation, laid a marl road from the boundary line west to within 1,700 or 1,800 feet of Shallotte Inlet, a distance of approximately 3,700 feet, or seven-tenths of a mile. The marl road followed precisely a road bulldozed by the same corporation a few years earlier. Defendant purchased the property and paved the marl road in 1985. The private developers paid all costs for the bulldozing, marling, and paving of the road. [329 N.C. 42] It is access along and across this improved road, Ocean View Boulevard West, that is in question.

Prior to the time that the State paved Ocean Boulevard to the entrance of Holden Beach West, an unimproved road extended from the west turn around, westwardly for approximately three-tenths of a mile to a campground. This unimproved road continued west through the campground to the subdivision boundary line. This state-maintained public road is now known as Ocean Boulevard and is not a subject of this dispute.

The evidence presented was in substantial conflict. The plaintiffs' evidence tended to show that, before the island was developed, fishermen, swimmers, picnickers, and others seeking recreation had used

Page 681

the west end of Holden Beach near the Shallotte Inlet freely, openly, and in an unrestricted manner. The public gained access to the area by vehicle and by foot along a pathway or road running through the island to the inlet. Mr. Harrell Paden...

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42 practice notes
  • Town of Nags Head v. Toloczko, No. 2:11–CV–1–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 28, 2012
    ...in North Carolina is an unsettled question.” Id. at 835;cf. Concerned Citizens of Brunswick Cnty. Taxpayers Ass'n v. State ex rel. Rhodes, 329 N.C. 37, 55, 404 S.E.2d 677, 688 (1991) (“We note dicta in the Court of Appeals opinion to the effect that the public trust doctrine will not secure......
  • State v. Wilkinson, No. 465A94
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 6, 1996
    ...the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged." Weddington, 329 N.C. at 210, 404 S.E.2d at 677. The instructions were given in conformity with defendant's assent, and the manner in which the trial judge instructed the jury was not Th......
  • DEPT. OF ENVIRONMENT v. Carroll, No. 329PA03.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 13, 2004
    ...Ltd., 358 N.C. 440, 469, 597 S.E.2d 674, 693 (2004) (quoting Concerned Citizens of Brunswick Cty. Taxpayers Ass'n v. Holden Beach Enters., 329 N.C. 37, 54-55, 404 S.E.2d 677, 688 (1991)); see also State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984), habeas proceeding at McDowell ......
  • Ventres v. Goodspeed Airport, LLC, No. 17280.
    • United States
    • Supreme Court of Connecticut
    • August 30, 2005
    ...circumstances beyond his control), cert. denied, 115 N.M. 60, 846 P.2d 1069 (1993); Concerned Citizens v. Holden Beach Enterprises, Inc., 329 N.C. 37, 47, 404 S.E.2d 677 (1991) (deviations in line of travel do not necessarily preclude finding of substantial identity of prescriptive easement......
  • Request a trial to view additional results
41 cases
  • Town of Nags Head v. Toloczko, No. 2:11–CV–1–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 28, 2012
    ...in North Carolina is an unsettled question.” Id. at 835;cf. Concerned Citizens of Brunswick Cnty. Taxpayers Ass'n v. State ex rel. Rhodes, 329 N.C. 37, 55, 404 S.E.2d 677, 688 (1991) (“We note dicta in the Court of Appeals opinion to the effect that the public trust doctrine will not secure......
  • State v. Wilkinson, No. 465A94
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 6, 1996
    ...the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged." Weddington, 329 N.C. at 210, 404 S.E.2d at 677. The instructions were given in conformity with defendant's assent, and the manner in which the trial judge instructed the jury was not Th......
  • DEPT. OF ENVIRONMENT v. Carroll, No. 329PA03.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 13, 2004
    ...Ltd., 358 N.C. 440, 469, 597 S.E.2d 674, 693 (2004) (quoting Concerned Citizens of Brunswick Cty. Taxpayers Ass'n v. Holden Beach Enters., 329 N.C. 37, 54-55, 404 S.E.2d 677, 688 (1991)); see also State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984), habeas proceeding at McDowell ......
  • Ventres v. Goodspeed Airport, LLC, No. 17280.
    • United States
    • Supreme Court of Connecticut
    • August 30, 2005
    ...circumstances beyond his control), cert. denied, 115 N.M. 60, 846 P.2d 1069 (1993); Concerned Citizens v. Holden Beach Enterprises, Inc., 329 N.C. 37, 47, 404 S.E.2d 677 (1991) (deviations in line of travel do not necessarily preclude finding of substantial identity of prescriptive easement......
  • Request a trial to view additional results
1 books & journal articles
  • Owning Up to the Environment
    • United States
    • Environmental Law Reporter Nbr. 40-10, October 2010
    • October 1, 2010
    ...the California Coast , 34 Ecology L.Q. 533, 566-76 (2007). 29. See Concerned Citizens of Brunswick Co. Taxpayers Ass’n v. North Carolina, 404 S.E.2d 677 (N.C. 1991); Arrington v. Texas General Land Oice, 38 S.W.3d 764 (Tex. App. 2001); Feinman v. Texas, 717 S.W.2d 106 (Tex. App. 1986). 30. ......

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