Adelman v. Gantt , 251 N.C. App. 372 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-339
Filed: 30 December 2016
Mecklenburg County, No. 14 CVD 14967
JEFFREY A. ADELMAN, Plaintiff,
v.
LEROY GANTT, Defendant.
Appeal by defendant from judgment entered 30 March 2015 and order entered
6 October 2015 by Judge Karen Eady-Williams in Mecklenburg County District
Court. Heard in the Court of Appeals 1 November 2016.
Weaver, Bennett & Bland, P.A., by Michael David Bland, for plaintiff-appellee.
Pamela A. Hunter for defendant-appellant.
BRYANT, Judge.
Where there was competent evidence sufficient to establish each element of
plaintiff’s easement claims introduced at trial, we affirm. Where the trial court’s
description of the easement was not ambiguous, the trial court correctly denied
defendant’s motion for a new trial or supplemental proceedings, and we affirm.
Plaintiff Jeffrey A. Adelman owns real property located at 1904 Harrill Street
in Charlotte, North Carolina known as Lot 18. Defendant Leroy Gantt owns an
adjoining lot, Lot 1, at 1900 Harrill Street. Lots 1 and 18 were previously owned by a
common owner, James and Kathleen Blair.
ADELMAN V. GANTT
Opinion of the Court
In August 1978, the Blairs conveyed Lot 1 to defendant and Lot 18 to
defendant’s mother. Lot 18 contains a concrete driveway that provides ingress and
egress for automobiles to the rear of Lot 18 and has been so used since the time it was
constructed. The property in dispute is a two-foot-wide strip of the concrete driveway,
which is located on Lot 1, defendant’s property, where the driveway meets the public
right of way (North Harrill Street). For over forty years the property in dispute has
functioned as a driveway for the occupant of Lot 18.
In 1989, defendant had his property surveyed. The survey depicted the two-
foot portion of the current driveway as being part of defendant’s property. The 1989
survey also illustrated a chain-link fence at the edge of the concrete driveway that
separated Lots 1 and 18 on defendant’s grass line.
On 30 June 2008, plaintiff acquired Lot 18. At that time, defendant’s chain-
link fence remained on his grass line, and the concrete driveway was free from any
obstruction. When plaintiff purchased Lot 18, based on the prior use of the concrete
driveway and placement of the fence, plaintiff believed the entire concrete driveway
was his property and for his use and enjoyment.
On or about 1 April 2014, plaintiff hired a contractor to install fence posts and
a privacy fence in his backyard. During construction, three fence posts were placed
in close proximity to the parking area behind defendant’s home. Defendant
questioned plaintiff as to whether the posts were actually on defendant’s property.
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Opinion of the Court
Plaintiff showed defendant a survey and defendant acknowledged the fence posts
were located on plaintiff’s property.
On or about 2 May 2014, defendant hired a surveyor to plot his property lines.
The survey revealed plaintiff’s fence posts were on plaintiff’s property, and also
reaffirmed the findings of the 1989 survey, which illustrated that two feet of
defendant’s northern property fell within a portion of plaintiff’s concrete driveway.
On 27 May 2014, defendant hired workmen to move the chain-link fence that
bordered the concrete driveway into the concrete driveway so that it aligned exactly
with defendant’s property line as shown on a survey thereof. The new location of the
fence narrowed the driveway by two feet and made entering and exiting Lot 18
difficult for plaintiff and his guests.
As a result of defendant’s relocation of the fence, plaintiff has damaged the
mirrors of two of his cars and does not leave the house at night because the fence
limits his ability to get out of his driveway. Plaintiff has also contemplated renting
his home, but potential renters were dissuaded from renting his property upon seeing
the difficulties posed by the fence and the driveway. When plaintiff had a shed built
in his backyard, workers had to bring their material in through a neighbor’s driveway
(with the neighbor’s consent), as the workers’ truck could not fit in plaintiff’s
driveway. Although defendant contends he needs the portion of the concrete driveway
behind his chain-link fence for parking, prior to this dispute he parked his car in the
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Opinion of the Court
same spot in front of his home for thirty-nine years, and he also has a carport in the
back of his lot that provides additional parking.
On 14 August 2014, plaintiff filed a complaint and summons in Mecklenburg
County District Court seeking damages for nuisance, prescriptive easement,
easement by prior use, and easement by necessity. Defendant filed his motion and
answer on 26 September 2014.
On 5 December 2014, an Arbitration Award and Judgment was filed, which
ordered defendant “to remove the portion of [the] fence from the front of his house to
the street on the side that burdens the property with plaintiff.” On 11 December 2014,
defendant filed a request for trial de novo.
On 2 February 2015, a bench trial was held in the Mecklenburg County District
Court, the Honorable Karen Eady-Williams, Judge presiding, regarding plaintiff’s
request for an easement implied by prior use and by necessity over the portion of the
concrete driveway in issue. The trial court orally granted plaintiff’s request for an
easement on the date of the hearing. Before the written judgment was filed and
entered, plaintiff submitted a proposed order to the court and attached a recent
survey of the property at issue conducted in February 2015 and labeled Exhibit 1.
By written judgment entered 30 March 2015, the trial court found and
concluded that plaintiff was entitled to an easement under the theories of implied
easement by prior use and easement by necessity. The trial court also found
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Opinion of the Court
defendant’s placement of the fence “served no reasonable purpose for the
[d]efendant,” “constitute[d] a nuisance by the [d]efendant as to the [p]laintiff,” and
ordered defendant to remove any portion of the fence located within the concrete
driveway serving plaintiff’s lot.
On 1 April 2015, defendant filed a motion for a new trial based on the
description of the property in the judgment as not being specific or detailed enough
to satisfy the easement requirements. Defendant also contended that plaintiff’s
Exhibit 1, the February 2015 survey of the property in dispute, was improperly
“admitted” and considered by the trial court after plaintiff closed his case-in-chief.
Defendant’s motions for new trial and supplemental proceeding were denied on 6
October 2015 by Judge Eady-Williams. Defendant appeals.
______________________________________________________
On appeal, defendant argues the trial court erred by (I) granting plaintiff an
easement by preexisting use and by necessity over defendant’s property; and (II)
denying defendant’s motion for a new trial.
I
Defendant contends the trial court committed reversible error by granting
plaintiff an easement implied by prior use and by necessity. Specifically, defendant
contends there was no competent testimony or evidence that the common owner of
the property intended that the use of the driveway continue (prior use), and that
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Opinion of the Court
because plaintiff does not need the use of defendant’s driveway to reach a public road,
any legal theory that an easement by necessity exists is negated. 1 We disagree.
The standard of review on appeal from a judgment entered after a non-jury
trial is “whether there was competent evidence to support the trial court’s findings of
fact and whether its conclusions were proper in light of such facts.” Shear v. Stevens
Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) (citation omitted). The
trial court’s findings of fact are “conclusive on appeal if there is evidence to support
those findings.” Id. (citation omitted). “A trial court’s conclusions of law, however, are
reviewable de novo.” Id. (citation omitted).
“Unchallenged findings of fact are presumed correct and are binding on
appeal.” In re Schiphof, 192 N.C. App. 696, 700, 666 S.E.2d 497, 500 (2008) (citations
omitted). Where specific findings are challenged, “[i]f the court’s factual findings are
supported by competent evidence, they are conclusive on appeal, even though there
is evidence to the contrary.” Boundary Dispute Between Lots 97 & 98 of C.M. Bost
Estate v. R.L. Wallace Constr. Co., 199 N.C. App. 522, 527, 681 S.E.2d 553, 557 (2009)
(quoting Lagies v. Myers, 142 N.C. App. 239, 246, 542 S.E.2d 336, 341 (2001)). “In
evaluating the credibility of the witnesses, the trial judge determines the weight to
be given to their testimony and the reasonable inferences to be drawn therefrom.” Id.
1 Defendant also challenges the trial court’s Finding of Fact No. 5 which states as follows: “On
February 2, 2015, at the conclusion of the hearing, the undersigned orally granted Plaintiff’s request
for an easement.”
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Opinion of the Court
(quoting Terry’s Floor Fashions, Inc. v. Crown Gen. Contractors, Inc., 184 N.C. App.
1, 10, 645 S.E.2d 810, 816 (2007)).
In the instant case, the trial court made the following findings of fact and
conclusions of law relevant to easement implied by prior use and by necessity:
16. To establish the existence of the easement, which is a
two feet portion of the concrete driveway, Plaintiff testified
that when he purchased his house in June 2008, he
believed he had full use of the concrete driveway based on
his understanding of the prior use of this driveway. He
understandably believe[d] that the entire concrete
driveway was his property and for his use and enjoyment.
17. Plaintiff also provided photographs of his neighbor, the
Defendant, erecting a chain link fence on a small portion of
the concrete driveway, which was on the actual property
line, but limiting Plaintiff’s full use of the driveway and
causing him concern about trying to access his back yard
to park his vehicles.
...
24. Prior to in or about August 1978, both Plaintiff’s and
Defendant’s lots had originally been owned by the same
land owner, but they were later divided and Defendant’s
mother lived on one lot (Lot 18) while Defendant lived on
the adjacent lot (Lot 1).
25. Per Plaintiff’s evidence and Plaintiff’s Exhibit 3 (Deed
recorded August 2, 1978), the property was severed in
August 1978.
26. Defendant testified that the driveway had always been
between the two properties and had been used solely as a
driveway when his mother resided there. It had no other
use. He did not testify to any restrictions on the use of the
driveway at any time when his mother lived next to him. It
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Opinion of the Court
had been used as a driveway for over 40 years or since his
mother owned the house.
27. Defendant further testified that he routinely parked on
the street when his mother lived next to him. He did this
for 39 years. And he has a carport at the back of his house,
which is located on a corner lot.
28. During trial, Defendant never testified that he had any
need to use his mother’s driveway to park his vehicle or
otherwise while she resided next door. This allegation
came about after Plaintiff moved into his mother’s former
home.
...
31. Prior to the two plots of land being divided in 1978 and
at the time that Plaintiff purchased the property in 2008,
the expectation was that the driveway would be used in its
entirety as a driveway for the house where Plaintiff resides
(Lot 18).
...
CONCLUSIONS OF LAW
...
10. The order entered by this Court on March 30, 2015 met
the criteria listed above for the finding of an easement
implied by prior use and necessity to unencumber property
adjacent to Defendant’s property.
A. Easement Implied by Prior Use
“An easement is a right to make some use of land owned by another without
taking a part thereof.” Builders Supplies Co. v. Gainey, 282 N.C. 261, 266, 192 S.E.2d
449, 453 (1972) (citation omitted). An easement is non-possessory and serves only the
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Opinion of the Court
limited purpose that gives rise to its creation. See id. at 270, 192 S.E.2d at 455
(citation omitted).
To establish an easement implied by prior use, plaintiff[]
must prove that: (1) there was a common ownership of the
dominant and servient parcels of land and a subsequent
transfer separated that ownership, (2) before the transfer,
the owner used part of the tract for the benefit of the other
part, and that this use was “apparent, continuous and
permanent,” and (3) the claimed easement is “necessary” to
the use and enjoyment of plaintiff[’s] land.
Metts v. Turner, 149 N.C. App. 844, 849, 561 S.E.2d 345, 348 (2002) (quoting Knott v.
Wash. Hous. Auth., 70 N.C. App. 95, 98, 318 S.E.2d 861, 863 (1984)). “[A]n easement
from prior use may be implied to protect the probable expectations of the grantor and
grantee that an existing use of part of the land would continue after the transfer.” Id.
(alteration in original) (quoting Knott, 70 N.C. App. at 98, 318 S.E.2d at 863).
1. “Apparent, Permanent, and Continuous” Use2
“[W]here one conveys a part of his estate, he impliedly grants all of those
apparent or visible [appurtenant] easements upon the part retained which were at
the time used by the grantor for the benefit of the part conveyed, and which are
reasonably necessary for the use of that part.” Wiggins v. Short, 122 N.C. App. 322,
2 It is undisputed that a common owner originally owned Lots 1 and 18 and the property was
later severed prior to plaintiff’s purchase of Lot 18. Thus, the first element of both theories of
easement—implied by prior use and necessity—is not at issue.
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Opinion of the Court
328–29, 469 S.E.2d 571, 576 (1996) (citations omitted) (quoting Carmon v. Dick, 170
N.C. 305, 306–07, 87 S.E. 224, 225 (1915)).
Here, there was ample evidence that the concrete driveway was for access to
defendant’s mother’s home (later, plaintiff’s home), it was permanent in nature, and
had been used by defendant’s mother for over forty years. At trial, plaintiff testified
that when he purchased his home in 2008 (1) the concrete driveway had been solely
used as a driveway by the grantor (defendant’s mother); (2) defendant had parking
located in the front and back of his home; and (3) the chain-link fence separating the
two property lots originally ran along the grass line of defendant’s property rather
than on the actual property line, until May 2014, when defendant hired workmen to
relocate the fence onto the driveway. In addition to plaintiff’s testimony, defendant
introduced a survey of the property at issue, and both parties introduced photographs
for the court to consider. Thus, the evidence presented at trial demonstrated that
plaintiff reasonably believed the entire concrete driveway would continue to serve in
the same manner as it had been for the past forty years.
2. Necessity
As with implied easements by necessity, see infra Section 1.B, there is a degree
of necessity required in order to imply an easement by prior use. See Smith v. Moore,
254 N.C. 186, 190, 118 S.E.2d 436, 438 (1961). Our Courts have been markedly
generous in their definition of what is “necessary” for the beneficial use of land to
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Opinion of the Court
satisfy the element of necessity. See, e.g., Metts, 149 N.C. App. at 850, 561 S.E.2d at
348–49 (holding that where an alternate road existed, but was never used, the
plaintiff was still entitled to an implied easement by prior use); McGee v. McGee, 32
N.C. App. 726, 729, 233 S.E.2d 675, 677 (1977) (holding that where a second route
was “unsuitable,” the easement was reasonably necessary).
Here, competent evidence was presented by plaintiff which established the
concrete driveway including the two-foot easement is reasonably necessary to
plaintiff’s enjoyment and use of his land. Plaintiff provided photographs and
testimony for the court to consider, and specifically testified that without the access
to the two feet of the concrete driveway at issue (1) plaintiff and his guests had
difficulty entering and exiting his lot, (2) the restriction caused damage to the mirrors
on two of his cars; (3) plaintiff does not leave his home at night because the restriction
obstructs his view; (4) potential renters of the home on plaintiff’s lot were dissuaded
from renting the house because of the difficulty posed by the restriction in the
driveway; and (5) a serviceman hired could not access plaintiff’s home via the
restricted driveway and was compelled to use the driveway of a neighbor.
Accordingly, the testimony, exhibits, and photographs sufficiently provided
competent evidence for the trial court to find that unobstructed access to the concrete
driveway was reasonably necessary, and, in turn, to find and grant an easement
implied by prior use.
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Opinion of the Court
B. Easement by Necessity
[A]n easement by necessity will be implied upon proof of
two elements: (1) the claimed dominant parcel and the
claimed servient parcel were held in common ownership
which was ended by a transfer of part of the land; and (2)
as a result of the land transfer, it became “necessary” for
the claimant to have the easement.
Wiggins, 122 N.C. at 331, 469 S.E.2d at 577–78 (1996) (citing Harris v. Greco, 69 N.C.
App. 739, 745, 318 S.E.2d 335, 339 (1984)).
1. Reasonable Belief
“To establish a right of way as ‘necessary,’ it is not required that the party thus
claiming show absolute necessity. It is sufficient to show physical conditions and use
which would ‘reasonably lead one to believe that the grantor intended the grantee
should have the right of access.’ ” Id. at 331, 469 S.E.2d at 578 (quoting Oliver v.
Ernul, 277 N.C. 591, 599, 178 S.E.2d 393, 397 (1971)).
In Jernigan v. McLamb, this Court held that easements by necessity are a
result of the application of the presumption that whenever a party conveys property,
he or she conveys whatever is necessary for the beneficial use of that property. 192
N.C. App. 523, 526, 665 S.E.2d 589, 592 (2008) (citation omitted).
Here, defendant testified that plaintiff’s predecessor in interest (defendant’s
mother) was the only person to use the concrete driveway. Furthermore, defendant
never testified that he had any need to use his mother’s driveway for any purpose
while she resided there. Based on defendant’s testimony, it was reasonable for
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Opinion of the Court
plaintiff to believe that his predecessor in interest conveyed the property with the
right to continue to use the concrete driveway (in its entirety) for ingress and egress.
Plaintiff’s reasonable belief is reaffirmed by the fact that he had full use of the
driveway for six years, until defendant moved the fence in 2014.
2. Essential to Use and Enjoyment
To establish an easement by necessity, the movant must show that the
easement is essential to the use and enjoyment of the property. See Oliver, 277 N.C.
at 599, 178 S.E.2d at 397 (citation omitted). When a grantee does not have “full
beneficial use of their property,” granting an easement by necessity is appropriate.
See Jernigan, 192 N.C. App. at 527, 665 S.E.2d at 592 (citation omitted). In Jernigan,
this Court granted an easement by necessity where the lack of legally enforceable
access to the property at issue could have an impact on the property’s value. Id. at
528, 665 S.E.2d at 592–93.
Here, plaintiff testified that at a certain point when he contemplated renting
the house on Lot 18, potential renters were dissuaded from renting upon seeing the
difficulty of entering and exiting the property via the driveway posed by the chain-
link fence which fenced off two feet of the concrete driveway. Such testimony
demonstrated that plaintiff’s property value was negatively impacted by the
obstruction of the chain-link fence erected by defendant. Therefore, sufficient
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Opinion of the Court
evidence was provided to show that full use of the concrete driveway is essential to
the plaintiff’s use and enjoyment of his property.
Thus, the record reflects that competent evidence was introduced at trial to
support the trial court’s conclusion that plaintiff established the two elements
required to obtain an easement by necessity over the concrete driveway. Accordingly,
defendant’s arguments as to easement implied by prior use and easement by
necessity are overruled.
II
Defendant contends the trial court committed reversible error when it denied
his motion for new trial or for supplemental proceedings. Specifically, defendant
contends that plaintiff failed to introduce competent evidence at trial for the court to
determine the specific boundaries of any easement over defendant’s land, and that
Exhibit 1 constitutes evidence improperly submitted by plaintiff after plaintiff rested
his case at trial. We disagree.
“[A]n appellate court’s review of a trial judge’s discretionary ruling either
granting or denying a motion to set aside a verdict and order a new trial is strictly
limited to the determination of whether the record affirmatively demonstrates a
manifest abuse of discretion by the judge.” Worthington v. Bynum, 305 N.C. 478, 482,
290 S.E.2d 599, 602 (1982) (citations omitted).
[W]here the grant of an easement of way does not definitely
locate it, it has been consistently held that a reasonable
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Opinion of the Court
and convenient way for all parties is thereby implied, in
view of all the circumstances[.] . . . It is a settled rule that
where there is no express agreement with respect to the
location of a way granted but not located, the practical
location and user of a reasonable way by the grantee,
acquiesced in by the grantor or owner of the servient estate,
sufficiently locates the way, which will be that which was
intended by the grant.
Edwards v. Hill, 208 N.C. App. 178, 191, 703 S.E.2d 452, 461 (2010) (alterations in
original) (quoting Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984)). “No
particular words are necessary to constitute a grant, and any words which clearly
show the intention to give an easement . . . are sufficient to effect that purpose . . . .
The instrument should describe with reasonable certainty the easement created and
the dominant and servient tenements.” Borders v. Yarbrough, 237 N.C. 540, 542, 75
S.E.2d 541, 543 (1953) (citation omitted).
With regard to Exhibit 1 and defendant’s contention that the description of the
easement was ambiguous, the trial court made the following relevant findings of fact
and conclusions of law:
10. Defendant further contends in his Motion that
Plaintiff’s “Exhibit 1,” which is a recent survey of the
property at issue, was admitted after the hearing and
considered by this Court after the Plaintiff closed his case
in chief.
11. However, at the conclusion of the trial in February
2015, this Court orally granted the Plaintiff’s request for
an easement without consideration or regard to the more
recent survey as it did not exist.
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Opinion of the Court
12. Contrary to Defendant’s allegations, this Court did not
consider the recent survey, which had been attached to the
Proposed Order and titled Plaintiff’s “Exhibit 1,” in its
original oral ruling. This Court had no need to consider
additional evidence or the recent survey as the other
evidence presented by the Plaintiff was deemed sufficient
for orally the [sic] granting of Plaintiff’s request at the
conclusion of the February 2015 hearing.
13. Furthermore, a similar survey to what was provided by
Plaintiff in the 2015 survey had already been received into
evidence during the February 2015 trial. This was not new
information to the Court. It was virtually identical to what
had been admitted during trial.
...
18. During the trial, Defendant introduced as his “Exhibit
1” a survey of the property that had been conducted in
1989. The survey clearly depicted the two feet portion of
the current driveway as being part of Defendant’s property.
And Defendant testified to the same.
...
22. This evidence of where the property at issue was
located was clear and unambiguous during the trial. And
neither party objected to the introduction or admissibility
of the Defendant’s survey.
23. Defendant never questioned the location or description
of the property at issue. He introduced the survey which
clearly identified the portion of the property at issue. And,
in his testimony, he detailed the exact location of the
property.
...
33. Exhibit 1, which is the recent survey attached to the
Order entered in March 2015, was provided for illustrative
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Opinion of the Court
purposes only. It is not additional evidence that has been
or was considered by this Court.
34. The description of the property provided by the parties
at trial and in the March 2015 Order at issue was/is
sufficient. And the description of the easement is
sufficiently certain to permit with [sic] identification of the
location of the easement with reasonable certainty.
...
CONCLUSIONS OF LAW
...
6. In easements, as in deeds generally, the intention of the
parties is determined by a fair interpretation of the grant.
17 Am.Jur., Easements, Sec. 25. The grant of the easement
in the case at bar can be fairly interpreted without
confusion or ambiguity.
...
11. The description of the property listed in Order dated
March 30, 2015 was sufficient to meet the legal criteria for
identification of the easement.
12. There is no uncertainty, ambiguity nor vagueness in
the description of the easement at issue.
13. The description of the easement is sufficiently certain
to permit with [sic] identification and location of the
easement with reasonable certainty.
14. No additional evidence was received by the
undersigned after the Plaintiff closed his case and no such
evidence was considered in any of the undersigned’s
rulings in this matter.
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Opinion of the Court
Courts have described easements with terminology reflecting the expectations
of the grantor and grantee, without formal descriptions such as metes and bounds.
See Metts, 149 N.C. App. at 849, 561 S.E.2d at 348. In Metts, this Court found the
trial court properly identified an easement by prior use despite the defendants’
contention that there could not be an implied easement because there was no attempt
to locate the easement (a roadway) on the ground of the defendants’ property. Id. at
849, 561 S.E.2d at 349. Because the trial court “found that the roadway was plainly
visible and appeared on the tax map,” and “[t]he witnesses testified to the roadway’s
existence and use by affidavit[,]” this Court held this was legally sufficient to identify
the easement at issue. Id. at 850, 561 S.E.2d at 349 (citation omitted).
Here, the trial court’s description of the easement in the March 2015 judgment
met the criteria for finding an easement implied by prior use and by necessity. The
March 2015 order properly identified plaintiff’s easement as “an easement over the
portion of the concrete driveway located on Lot 1.” This conclusion reflects the trial
court’s finding that it was the expectation and intention of the predecessor-in-interest
of plaintiff and defendant that the concrete driveway located on Lot 18 provide means
of ingress and egress for the owner or occupant of Lot 18. Furthermore, the
identification of the easement located over the “concrete paved driveway that is
physically located on the Defendant’s property” described a right of way that was
“plainly visible,” see id., and reflected plaintiff’s reasonable expectation that he would
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be able to continue to use this right of way without encumbrances. Accordingly, the
trial court correctly denied defendant’s motion for new trial as the description of the
easement is not ambiguous.
Defendant also contends the trial court erroneously relied on plaintiff’s Exhibit
1 in finding plaintiff was entitled to an easement. However, this contention is without
merit. At the conclusion of the February 2015 trial, the trial court orally granted
plaintiff’s request for an easement, without consideration of plaintiff’s Exhibit 1, as
it was not presented to the trial court at that time. Moreover, the information
provided by Exhibit 1 was not new or additional; it provided an almost identical
survey to the one put into evidence during the trial. Accordingly, defendant’s
argument is overruled. The judgment of the trial court is
AFFIRMED.
Judges CALABRIA and STEPHENS concur.
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