Jones v. Popper, No. COA05-1210 (N.C. App. 9/4/2007)
| Decision Date | 04 September 2007 |
| Docket Number | No. COA05-1210,COA05-1210 |
| Court | North Carolina Court of Appeals |
| Parties | FRANKLIN G. JONES and wife, LINDA RUSSELL JONES, Plaintiffs, v. RAYMOND A. POPPER and wife, AUDREY A. POPPER, Defendants; and NEIL MOORE and wife, DARLENE MOORE, Plaintiffs, v. FRANKLIN G. JONES and wife, LINDA RUSSELL JONES, Defendants. |
Brown, Ward & Haynes, PA, by Frank G. Queen, for Appellants.
Ferikes & Bleynat, PLLC, by Edward L. Bleynat, Jr., and Evans & Rice, PLLC, by Susan L. Evans, for Appellees.
This case involves the location, ownership and use of a right-of-way, more specifically a private road, located in the Millshoal Township of Macon County, North Carolina. Situated to the north of this road is real property, formerly used as a slaughterhouse, which has been owned since April 1998 by Appellants, Franklin G. and Linda Russell Jones ("the Joneses"). Adjacent to the Joneses' property is property owned by Plaintiffs-Appellees, Neil and Darlene Moore ("the Moores"). Directly across the road from the Joneses' property is "Fetty Field," which is owned by Defendants-Appellees, Raymond A. and Audrey A. Popper ("the Poppers"). Adjacent to Fetty Field is a parcel of land owned by the Poppers, where their residence is located. At least as far back as the 1960s, all of these various properties were part of one tract of land titled to J.R. and Inez Franklin ("the senior Franklins").
In or around 1966, the senior Franklins deeded a portion of the property where the slaughterhouse was located to C.W. and Grace Franklin ("the junior Franklins"). The senior Franklins' tract was divided by the deed down the center of the road located next to the slaughterhouse. One parcel was transferred to the junior Franklins, and each couple reserved for themselves and granted to the other a six-foot right-of-way on either side of the center of the road to run with the land. Thus, the boundary line between the two properties went down the center of the original road. In or around 1982, the right-of-way where the original road was located was extended by deed to certain other properties, including the property on which the Poppers now reside and have resided since 1983. The Moores and the Poppers used the road located in the right-of-way to access their houses. In April 2000, the Joneses had the road between their property and Fetty Field flattened and paved. According to the Poppers and the Moores, when the road was flattened and paved, it was moved from its original location to its alleged present location on Fetty Field. In February 2002, two years after the road was paved, the Poppers purchased the Fetty Field property.
During or around June 2000, the Moores commissioned a survey of the area by Thomas Cabe ("Cabe"), a licensed land surveyor with approximately thirty years of professional experience. The Poppers also commissioned similar surveys in 2002 and 2003. Cabe purported to establish the property line, which supposedly corresponded with the center line of the original twelve-foot right-of-way, with the easement extending six feet on either side of the property line. According to Cabe's survey, at various points called out along the survey, the paved road was as far as seventeen feet outside the deeded right-of-way onto Fetty Field.
Following the completion of the 2002 survey, the Poppers had the roadway marked approximately six and one-half feet beyond the property line as established by Cabe's survey (six inches outside the easement) onto Fetty Field. They then had a chain link fence constructed on this line. The fence almost completely blocked the use of the paved road in places.
In April 2002, the Joneses filed suit against the Poppers alleging trespass and claiming title to the entire right-of-way by adverse possession. In June 2002, the Poppers counterclaimed alleging trespass and requesting the court to appoint a surveyor to locate the common boundaries of the Joneses' and Poppers' land. However, in May 2003, the Poppers amended their answer and counterclaim, eliminating their request for a court surveyor, seeking damages for trespass, and requesting judgment, inter alia, quieting title. In June 2003, the Moores filed suit against the Joneses seeking damages for trespass and judgment quieting title. The matters were consolidated for trial by order filed 30 January 2004.
At trial, the court directed verdicts at the close of the evidence on all issues except the boundary line and trespass. The court submitted the issue of the placement of the boundary line and the trespass-related issues to the jury. The court framed the boundary line issue thusly: "Is the boundary between the Jones' property and the Popper's property located at the place shown on the survey of Thomas Cabe[?]" The jury found that the boundary line between the Joneses' and the Poppers' property was not where Cabe's survey had located it. Furthermore, the jury found the Poppers had trespassed against the Joneses and found the Joneses were entitled to recover $421.17 in damages. The jury found no trespass by the Joneses against the Poppers or the Moores.
The Poppers and the Moores made post-trial motions for judgments notwithstanding the verdict, which the trial court allowed. The trial court determined as a matter of law that the boundary line between the Joneses' and the Poppers' property is located at the place shown on Cabe's survey. Based on this boundary line determination, the trial court further determined that the Joneses trespassed on the Poppers' and the Moores' property, but the trial court did not award damages to the Poppers or the Moores for such trespass. Additionally, the court conditionally allowed the Poppers' and the Moores' motions for a new trial on the issues of the boundary line location and trespass in the event the judgments notwithstanding the verdict were vacated or reversed. The Joneses appeal.
The Joneses first argue that the trial court erred in directing verdict on the issue of a prescriptive easement and by not instructing the jury on other easement theories. We disagree.
"The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury." Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citation omitted).
"A prescriptive easement or right-of-way over the land of another, being acquired in the manner of adverse possession, is disfavored in the law." Johnson v. Stanley, 96 N.C. App. 72, 74, 384 S.E.2d 577, 579 (1989) (citing Potts v. Burnette, 301 N.C. 663, 667, 273 S.E.2d 285, 288 (1981)). "[M]ere use alone is presumed to be permissive, and, unless that presumption is rebutted, the use will not ripen into a prescriptive easement." Id. (citing Dickinson v. Pake, 284 N.C. 576, 580-81, 201 S.E.2d 897, 900 (1974)).
In order to establish an easement by prescription, a claimant must meet the following criteria: (1) the use must be adverse, hostile, or under a claim of right; (2) the use must be open and notorious; (3) the use must be continuous and uninterrupted for a period of 20 years; and (4) there must be substantial identity of the easement claimed.
Woodring v. Swieter, ___ N.C. App. ___, ___, 637 S.E.2d 269, 276 (2006) (citing Concerned Citizens of Brunswick County Taxpayers Ass'n v. State ex rel. Rhodes, 329 N.C. 37, 45, 404 S.E.2d 677, 682 (1991)).
The Joneses did not present sufficient evidence to meet the twenty-year requirement. While the Joneses can "tack" their period of alleged adverse use to prior allegedly adverse users, see Connolly v. Robertson, 151 N.C. App. 613, 620, 567 S.E.2d 192, 198 (2002) (), the Joneses presented no evidence that any prior owner of their property asserted an adverse claim. The Joneses purchased their property in 1998. Accordingly, the Joneses did not present sufficient evidence that their use of the road has been continuously adverse and hostile for a period of twenty years. This argument is without merit.
We are equally unpersuaded by the Joneses' contention that the trial court should have submitted other easement theories (implied easement, easement by necessity, easement by prior use, etc.) to the jury. The only easement claims asserted by the Joneses in the pleadings were easement by prescription and express easement (easement by deed). By submitting the boundary line issue to the jury, see infra, the trial court implicitly submitted the express easement claim to the jury. The trial court properly did not submit easement theories not advanced in the pleadings to the jury. See Alston v. Britthaven, Inc., 177 N.C. App. 330, 334, 628 S.E.2d 824, 828 (2006) () (quoting Johnson v. Massengill, 280 N.C. 376, 384, 186 S.E.2d 168, 174 (1972)), disc. review denied, 361 N.C. 218, 642 S.E.2d 242 (2007). This argument is overruled.
The Joneses next contend that the trial court erred in submitting the issue of the boundary line to the jury. However, since the parties' claims put the boundary line between the Joneses' and the Poppers' property in dispute and because the resolution of these claims was dependent upon the determination of the location of the boundary line, we conclude that the trial court correctly submitted the location of the boundary line to the jury.
A disputed boundary...
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