McCracken v. Clark , 235 N.C. 186 ( 1952 )

69 S.E.2d 184 (1952) 235 N.C. 186

McCRACKEN et al.
v.
CLARK et al.

No. 26.

Supreme Court of North Carolina.

February 27, 1952.

W. R. Francis, Waynesville and Jones & Ward, Asheville, for plaintiffs, appellants.

James H. Howell, Jr., Morgan & Ward, and Glenn W. Brown, all of Waynesville, for defendants, appellees.

JOHNSON, Justice.

The trial court erred in directing the verdict on the second issue. On that issue, the burden of proof was upon the defendants. This being so, they were not entitled to a directed instruction.

To establish the easement claimed by the defendants the burden of proof was upon them to satisfy the jury by the greater weight of the evidence that the user relied on was hostile in character, rather than permissive and with the owners' consent. McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Chesson v. Jordan, 224 N.C. 289, at page 292, 29 S.E.2d 906. "Permissive use is presumed until the contrary is made to appear." Speight v. Anderson, 226 N.C. 492, at page 497, 39 S.E.2d 371, at page 374.

It is established by many authoritative decisions of this Court that a directed instruction in favor of the party having the burden of proof is forbidden. Haywood v. Home Ins. Co., 218 N.C. 736, 12 S.E.2d 221, and cases cited.

We have not overlooked the defendants' contention that they acquired an easement by implied grant. As to this phase of the case, the burden of proof was none the less on the defendants. 17 Am.Jur., Easements, Sec. 54, see also sections 32, 33, and 48; Carmon v. Dick, 170 N.C. 305, 87 S.E. 224; Ferrell v. Durham Bank & Trust Co., 221 N.C. 432, 20 S.E.2d 329.

New trial.