Young v. Lica

• Decision Date: 04 March 2003
• Docket Number: No. COA02-652.,COA02-652.
• Citation: 156 NC App. 301,576 S.E.2d 421
• Parties: Lanning YOUNG and wife, Charlene Young, Plaintiffs v. Michael B. LICA and wife, Cheryl J. Lica, Barry A. Imler and wife, Delores Imler, Defendants.
• Court: North Carolina Court of Appeals

576 S.E.2d 421

156 NC App. 301

Lanning YOUNG and wife, Charlene Young, Plaintiffs v. Michael B. LICA and wife, Cheryl J. Lica, Barry A. Imler and wife, Delores Imler, Defendants.

No. COA02-652.

Court of Appeals of North Carolina.

March 4, 2003.

Gary E. Kirby, Sylva, for plaintiffs-appellants.

William C. Morris, Jr., Asheville, for defendants-appellees.

TYSON, Judge.

I. Background

Lanning Young and wife, Charlene, ("plaintiffs") own property located between State Highway 107 ("highway") and Shoal Creek in Jackson County. In 1997, Michael B. Lica and wife, Cheryl, and Barry A. Imler and wife, Delores, ("defendants") acquired property across Shoal Creek adjoining plaintiffs' property and an easement across plaintiffs' land to the highway. Defendant's deed described the easement as:

BEGINNING at the margin of State Highway No. 107, (right side of Highway going towards Sylva, N.C.) and runs near Southeast about 90 feet to the middle of the Creek; thence about North West the same distance to the margin of said highway, and wide enough for trucks or other vehicle to travel over, which includes the present site, for use of travel only for [the predecessors-in-interest of defendants] and their heirs and assigns forever.

When defendants purchased their property, only a single lane extended from the highway to a wooden bridge that crossed Shoal Creek between plaintiffs' and defendants' property. The old bridge was approximately five feet high, between twelve and sixteen feet wide, and was "very hazardous... even for foot traffic".

Defendants contacted plaintiffs one time prior to construction to inform them that defendants intended to improve the old bridge. Plaintiffs, who resided out of state and visited their property infrequently, stated a desire to shift the location of the path and bridge. No further contact occurred until after defendants removed the wooden bridge and installed two corrugated steel culverts and filled in around them to create a level roadbed. The new bridge was approximately eight feet higher in elevation than the old bridge and approximately sixty feet wide, enough for two lanes. Plaintiffs made no objections while the construction was proceeding. Plaintiffs testified that they are now required to climb up and over the new road to access their property on the other side, that the view of the portion of their property on either side of the new road and bridge is restricted, and that defendants' construction removed vegetation and natural features along the creek behind their cabin.

On 2 October 1998, plaintiffs filed suit against defendants seeking a permanent injunction and damages for trespass to their property and nuisance.

After a bench trial, the trial court, on 8 June 2001, found the following in part:

(4) The description of the aforesaid right of way did not contain any limitations as to width or height, except to express that it be wide enough for trucks or other vehicle(s) [sic] to travel over.

(5) When the plaintiffs acquired their property in 1970, a little wooden bridge, in poor condition, was in place across the creek and was in the same approximate location as the current crossing which is the subject of this lawsuit.

(6) Subsequent to acquiring their property the defendants took it upon themselves to "improve" the right of way by installing two large culverts in the creek and filling around them with large boulder sized rip-rap and consequently elevating and widening the right of way to the extent that eighteen wheelers can now access the defendants' property from North Carolina Highway 107 and vehicles can actually pass on a two-way basis on the right of way.

(7) The plaintiffs have a small cabin on their property which has been diminished even more in appearance as a result of the enlargement and immensity of the defendants' right of way construction by the defendants.

The trial court concluded as follows:

(1) There is no cause of action for trespass or nuisance against the defendant[s] when they have "improved" what they were already entitled to use; to wit; easement for a road right of way.

(2) There is a cause of action for damages for compensation against the defendants for enlarging and widening the easement in question to the extent it imposes an additional burden on the plaintiffs' land and entitles the plaintiffs to additional compensation.

The trial court denied injunctive relief and ordered a trial on damages. On 2 October 2001, plaintiffs abandoned their claim for damages in order to proceed with claims for injunctive relief. On 12 October 2001, plaintiffs moved for a new trial or an amendment of judgment. The trial court denied plaintiffs' motion on 20 November 2001 and plaintiffs appealed. We reverse and remand.

II. Issues

Plaintiffs contend the trial court erred in (1) failing to find the improvements to the easement by the defendants were trespass or nuisance and (2) failing to grant injunctive relief.

III. Denial of Motion for New Trial or to Amend Judgment

Although neither raised nor argued by either party, plaintiffs gave notice of appeal only from the denial of plaintiffs' motion for a new trial or amendment of judgment and not from the 11 June 2001 judgment. Plaintiffs moved for a new trial under N.C. Gen.Stat. § 1A-1, Rule 59(a)(6) or (7) (2001) and for an amendment of judgment under N.C. Gen.Stat. § 1A-1, Rule 59(e). Rule 59(a) states:

A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds:

...

(6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;

(7) Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law;

...

On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

N.C. Gen.Stat. § 1A-1, Rule 59(a). The determination of whether to grant or deny a motion pursuant to either Rule 59(a) or Rule 59(e) is addressed to the sound discretion of the trial court. Hamlin v. Austin, 49 N.C.App. 196, 197, 270 S.E.2d 558, 558 (1980). "Where errors of law were committed,..., the trial court is required to grant a new trial." Eason v. Barber, 89 N.C.App. 294, 297, 365 S.E.2d 672, 674 (1988) (citing Jacobs v. Locklear, 310 N.C. 735, 314 S.E.2d 544 (1984)). While our standard of review under Rule 59(e) is abuse of discretion, under Rule 59(a)(7) our review is de novo. Id.

In their motion for a new trial or amendment of the judgment, plaintiffs contend that the trial court erred on a matter of law when it "entered a Judgment denying this Plaintiff the injunctive relief requested and declaring this matter instead to be a trial for damages." The trial court denied plaintiffs' motion for either a new trial or for an amendment of judgment. Defendants' timely notice of appeal provides this Court jurisdiction to review the denial of plaintiffs' motions. As plaintiffs alleged errors of law in the trial court's underlying judgment, we review the trial court's denial of the motion for a new trial under Rule 59(a)(7) under a de novo standard. We hold the trial court erred on matters of law.

IV. Injunctive Relief

Plaintiffs complained that defendants trespassed upon their land and maintained a nuisance and sought a mandatory injunction against defendants to remove the new bridge and construct another bridge similar to the old bridge. "The elements of a trespass claim are that plaintiff was in possession of the land at the time of the alleged trespass; that defendant made an unauthorized, and therefore unlawful, entry on the land; and that plaintiff was damaged by the alleged invasion of his rights of possession." Jordan v. Foust Oil Company, 116 N.C.App. 155, 166, 447 S.E.2d 491, 498 (1994) (citing Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952)).

The trial court failed to determine the location and boundary of the easement and whether defendants made an unauthorized entry on plaintiffs' property. If the culverts and roadway are totally located within the boundaries of the easement, no unauthorized entry occurred. If the culverts and roadway are located outside the boundaries of the easement, defendants made an unauthorized entry onto plaintiffs' land.

The description sets a general single line for the easement and states that it is "wide enough for trucks or other vehicle to travel over, which includes the present site" but fails to establish the location and width of defendants' easement. (emphasis supplied).

The description of an easement "must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers," but "[t]here must be language in the deed sufficient to serve as a pointer or a guide to the ascertainment of the location of the land."

King v. King, 146 N.C.App. 442, 444-45, 552 S.E.2d 262, 264 (2001) (quoting Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942)). The original path across plaintiffs' property when the defendants purchased their property consisted of an old single lane logging road and wooden bridge in the same general location as the new bridge and road built by defendants. The improvements defendants constructed are nearly four times wider and twice as high as the old road and bridge. Since the description of the easement is insufficient to establish its location or boundary, the burden rests on defendants to prove the nature and extent of the easement claimed.

An essential right inuring the ownership of real property is the ability to exclude others from the property. When one builds upon another's land without permission or right, a continuing trespass is committed. "[T]he usual remedy for a continuing trespass is a permanent injunction which in this case...