Oshita v. Hill , 65 N.C. App. 326 ( 1983 )

308 S.E.2d 923 (1983)

Satoshi OSHITA and wife, Marymi T. Oshita
v.
Lucille M. HILL, Roy J. Hill, James Clyde Long, Jr., and the Union County Board of Education.

No. 8220SC1027.

Court of Appeals of North Carolina.

December 6, 1983.

Perry & Bundy by H. Ligon Bundy, Monroe, for plaintiffs-appellees.

Charles D. Humphries, Monroe, for defendant-appellant Union County Bd. of Educ.

No briefs filed for defendants-appellants Lucille M. Hill, Roy J. Hill, and James Clyde Long, Jr.

PHILLIPS, Judge.

Defendant Board of Education contends the trial court should have granted its motions for a directed verdict and for judgment notwithstanding the verdict. This contention is valid, of course, only if the evidence, when considered in the light most favorable to plaintiffs, fails to support the existence of each and every element required to establish the easement by prescription that plaintiffs sued for. But the jury verdict must stand if plaintiffs' evidence tended to establish all the elements of their case, which are: that the use (1) was adverse, hostile or under claim of right; (2) so open and notorious that the true owners probably had notice of it; (3) was continuous and uninterrupted for a period of at least twenty years; and (4) involved a way that had substantial identity throughout the period involved. Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981); Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). Defendant contends plaintiffs' evidence failed to properly establish the substantial identity of the way involved or that its use was adverse or hostile. We do not agree with either contention.

Substantial identity of the easement simply means that the way used followed a reasonably definite and specific line during the period involved. "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, 496, 39 S.E.2d 371, 374 (1946). But since prescriptive ways are established by custom and usage, rather than by road builders and engineers, a metes and bounds description is not required; that the way can be identified and located from the testimony given is sufficient. The testimony of plaintiffs' chief witness as to the course and location of the road, that it was there before 1932, and has not changed since then, was sufficient to establish this element.

As for adverse or hostile use, no showing of acrimony or disputation is required; all that need be shown is that the use was not permissive and was exercised openly and notoriously with a claim of right that the servient property owner probably had notice of. Dickinson v. Pake, supra.

Our decision that plaintiffs' evidence was sufficient to establish that the use of the road was adverse and hostile is supported by both Dickinson and Potts. In each of these cases the evidence showed that permission to use the road had neither been given nor sought, plaintiffs did the slight maintenance required to keep the road passable, and plaintiffs used the road for over twenty years as if they had a right to it; and in each case our Supreme Court held that the evidence was sufficient to establish that the use was not permissive, but hostile. Plaintiffs' evidence on this point showed the same things that the evidence in Dickinson and Potts did, but it did not stop there; it showed road maintenance work that was more extensive, frequent, costly and noticeable; and it also showed inaction and action by the landowner that indicated he believed he had no right to interfere with the road. Permitting, without protest, a strip of farm land to be scraped, packed down and ditched by a motor grading machine several different times over a period of years is, to say the least, some indication that the owner believed he could not do otherwise; building a fence along, rather than across, a road that traversed his farm lands is even more indicative of the same belief.

The fact that plaintiffs have not personally used and maintained the road on a frequent basis since buying the property in 1980 is not significant. Their predecessors in interest acquired an easement by prescription; and since the easement was incidental to the use of what is now plaintiffs' property, it is an appurtenant easement that passed by succession to the plaintiffs. Dickinson v. Pake, supra. Nor does it matter that plaintiffs' predecessors in interest had other ways to get to and from the property during the years that the prescriptive right was being established. An easement by prescription, unlike a statutory cartway, is not based on need, but use. And that plaintiffs' predecessors had another way available to them tends to support plaintiffs' claim that the use was not permissive, since, nothing else appearing, there is no reason to give a way to one who already has one.

Thus the judgment first entered herein is affirmed. But the supplemental judgment entered by the trial court is a nullity, as defendant contends. The appeal of the defendants from the original judgment deprived the trial court of the authority to make further rulings in the case until it returns from this Court. G.S. 1-294; Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981).

The judgment entered 7 June 1982 is affirmed, the supplemental judgment is vacated, and the cause is remanded for such supplemental orders as the circumstances require.

Affirmed in part; reversed and remanded in part.

HEDRICK and WELLS, JJ., concur.