Dickinson v. Pake

• Decision Date: 01 February 1974
• Docket Number: No. 102,102
• Citation: 201 S.E.2d 897,284 N.C. 576
• Parties: Ellen DICKINSON et al. v. Charles L. PAKE and wife, Tommie Pake.
• Court: North Carolina Supreme Court

Page 897

201 S.E.2d 897

284 N.C. 576

Ellen DICKINSON et al. v. Charles L. PAKE and wife, Tommie Pake.

No. 102.

Supreme Court of North Carolina.

Feb. 1, 1974.

Taylor & Marquardt by Nelson W. Taylor, Beaufort, for plaintiff appellants.

Wheatly & Mason by L. Patten Mason, Beaufort, for defendant appellees.

HUSKINS, Justice:

Development of the law in North Carolina with respect to acquisition of prescriptive easements has followed a tortuous route--roundabout and bent in different directions.

Coke states that at common law a long, continuous and peaceable user was necessary to establish a prescriptive right. Coke on Littleton § 113B. However, most American courts have sought to equate acquisition of prescriptive easements to acquisition of title by adverse possession so that it is generally held that prescriptive acquisition requires open, exclusive, continuous, uninterrupted, adverse user under a claim of right with the knowledge and acquiescence of the owner of the servient estate for the prescriptive period--usually twenty years. 25 Am.Jur.2d, Easements, §§ 49--63 (1966); 3 R. Powell, Real Property, para. 413 (1973). The majority view today in other jurisdictions is that a Presumption of adverse user arises when it is made to appear that the user has been enjoyed openly, continuously and uninterruptedly for the prescriptive period. 2 G Thompson, Real Property, § 350 (repl.vol.1961); Annot., 170 A.L.R. 776, 779 (1947).

Earlier North Carolina cases followed the majority view, holding that a prescriptive use was Presumed to be adverse, subject to rebuttal evidence by the owner of the servient estate showing that the elements on which the presumption was based did not exist. Wilson v. Wilson, 15 N.C. 154 (1833); Pugh v. Wheeler, 19 N.C. 50 (1836); Gerenger v. Summers, 24 N.C. 229 (1842); State v. Hunter, 27 N.C. 369 (1845).

Gradually and almost imperceptively, however, North Carolina moved away from the presumption that the user was adverse and began to emphasize the necessity of showing adverseness without mention of any initial presumption to that effect. See Felton v. Simpson, 33 N.C. 84 (1850); Mebane v. Patrick, 46 N.C. 23 (1853); Ingraham v. Hough, 46 N.C. 39 (1853); Smith v. Bennett, 46 N.C. 372 (1854); Ray v. Lipscomb, 48 N.C. 185 (1855). 'There must, then, be some evidence accompanying the user, giving it a hostile character and repelling the inference that it is permissive and with the owner's consent, to create the easement by prescription and impose the burden upon the land.' Boyden v. Achenbach, 86 N.C. 397 (1882). Thus, we moved from the majority view that the user is presumed to be adverse to the view that it is presumed to be permissive; and the permissive presumption rule has been followed in this jurisdiction ever since. See Comment, Prescriptive Acquisition in North Carolina, 45 N.C.L.Rev. 284 (1966).

In the case before us we must apply the following legal principles which are now established by decisions of this Court:

1. The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement. Williams v. Foreman, 238 N.C. 301, 77 S.E.2d 499 (1953), and cases therein cited.

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. Henry v. Farlow, 238 N.C. 542, 78 S.E.2d 244 (1954); Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946), and cases therein cited.

3. The use must be adverse, hostile, or under a claim of right. Dulin v. Faires, 266 N.C. 257, 145 S.E.2d 873 (1966); Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2 (1926); Mebane v. Patrick, 46 N.C. 23 (1853). 'To establish that a use is 'hostile' rather than permissive, 'it is not necessary to show that there was a heated controversy, or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the servient estate.' (Citations omitted.) A 'hostile' use is simply a use of such nature and exercised under such circumstances as to manifest and give notice that the use is being made under claim of right.' Dulin v. Faires, supra. There must be some evidence accompanying the user which tends to show that the use is hostile in character and tends to repel the inference that it is permissive and with the owner's consent. Boyden v. Achenbach, supra. A mere permissive use of a way over another's land, however long it may be continued, can never ripen into an easement by prescription. Nicholas v. Furniture Co., 248 N.C. 462, 103 S.E.2d 837 (1958); Williams v. Foreman, supra.

4. The use must be open and notorious. 'The term 'adverse user' or 'adverse possession' implies a user or possession that is not only under a claim of right, but that it is open and of such character that the true owner may have notice of the claim, and this may be proven by circumstances as well as by direct evidence.' Snowden v. Bell, 159 N.C. 497, 75 S.E. 721 (1912).

5. The adverse use must be continuous and uninterrupted for a period of twenty years. Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946). 'The continuity required is that the use be exercised more or less frequently, according to the purpose and nature of the easement.' J. Webster, Real Estate Law in North Carolina § 288 (1971). An interruption to an easement for a right-of-way 'would be any act, done by the owner of the servient tenement, which would prevent the full and free enjoyment of the easement, by the owner of the dominant tenement . . ..' Ingraham v. Hough, 46 N.C. 39 (1853).

6. There must be substantial identity of the easement claimed. Hemphill v. Bd. of Aldermen, 212 N.C. 185, 193 S.E. 153 (1937). 'To establish a private way by prescription, the user for 20 years must be confined to a definite and specific line. While there may be slight deviations in the line of travel there must be a substantial identity of the thing enjoyed.' Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946).

The evidence in this case, when considered in the light most favorable to plaintiffs, tends to show the facts narrated below:

Plaintiffs are the five children of Sophia Lupton, now deceased, By deed dated 28 March 1938 Sophia Lupton acquired title from her sister Julia Pake to a tract of land lying south of the Lennoxville Road and next to Taylor's Creek in Carteret County. A house was built and Sophia and four of her five children moved into it sometime in 1938. (It was discovered around 1960 that the house had been built over the west property line and Julia Pake conveyed to Sophia Lupton an adjacent strip along the west boundary of the 1938 tract so as to give Sophia title to all the land on which the house was located, but this fact is without significance on the questions involved in this case.)

By deed dated 16 March 1939 defendants Charles L. Pake and wife acquired title to a tract of land north of the tract conveyed to Sophia Lupton in 1938, lying between the Lupton property and the Lennoxville Road. In 1940 defendants built a house on this land and have lived in it since that time.

When Sophia Lupton acquired her property in 1938 there was already in existence an unpaved road leading from the Lennoxville Road to Taylor's Creek, passing over the land acquired by defendants in 1939 and continuing over the Sophia Lupton property to the creek. This old roadway is designated as Lupton Drive on Plaintiffs' Exhibit 1.

Lupton Drive, a rutted, sandy road, had been used from 1915 until 1938 by local residents for access to Taylor's Creek. Sophia Lupton and her children used said road continuously as the sole route of ingress and egress to and from the Lupton property from 1938 until 1968 when defendants blocked it. It was being used in that fashion by Sophia Lupton and her children when defendants acquired their property in 1939. The road was used by family friends who came to visit, by deliverymen, and by all others having occasion to reach the Lupton property. Friends and relatives of the Luptons, and other persons, who docked their boats in Taylor's Creek also used the road. That portion of Lupton Drive between the Lennoxville Road and the Pake house was also used by the Pakes for ingress and egress after they moved onto their land in 1940.

From 1938 until the present time the location of Lupton Drive has remained essentially unchanged. At one time defendants placed shrubbery and old tires along one edge of the road so as to restrict travel to the well-defined roadway. At another time, a power pole was placed on the Lennoxville Road right-of-way so as to cause a slight narrowing of the mouth of Lupton Drive where it connects with the Lennoxville Road.

Plaintiffs and their mother, by raking leaves and scattering oyster shells in the roadway, have performed what slight maintenance was required to keep Lupton Drive in passable condition.

Mrs. Ellen Lupton Dickinson, one of the plaintiffs, moved out of her mother's home in 1941 but continued to use Lupton Drive four or five times a week to visit her mother. Callie Lupton Ferrier moved out of the house in 1959, and Allen Lupton moved out in 1960. The evidence does not disclose when James Lupton moved away. William Baker Lupton, the fifth child, was living in Florida in 1938 and has never lived in the Sophia Lupton house.

There is no evidence that plaintiffs ever sought permission or that defendants ever gave permission for use of the road. Plaintiffs and defendant Charles Pake are first cousins and had always been very close prior to obstruction of the road in 1968. Ellen Dickinson testified, among other things: 'I and my brothers and sister did think this was our road. We had always used it any had a right to use it.'

That portion of defendants' answer admitting that defendants had obstructed Lupton Drive to bar vehicular traffic was offered in evidence.

We must first decide, preliminary to the main question, whether the foregoing evidence is sufficient to withstand d...