Parker v. DesherbininÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-377-2
Filed: 2 January 2018
New Hanover County, No. 15 CVS 2255
RAYMOND CLIFTON PARKER, Plaintiff,
v.
MICHAEL DESHERBININ and wife, ELIZABETH DESHERBININ, Defendants.
Appeal by plaintiff from judgment entered 22 September 2016 and from order
entered 1 December 2016 by Judge Mary Ann Tally in New Hanover County Superior
Court. Heard originally in the Court of Appeals 26 September 2017, and published
opinion filed 17 October 2017. A petition for rehearing was filed 20 November 2017
and allowed on 6 December 2017. Pursuant to the petition for rehearing, the matter
was reheard in the Court of Appeals. This opinion supersedes the 17 October 2017
opinion previously filed in this matter.
Hodges, Coxe, Potter, & Phillips, LLP, by Bradley A. Coxe, for Plaintiff-
Appellant.
H. Kenneth Stephens, II for Defendant-Appellees.
TYSON, Judge.
Raymond Clifton Parker (“Appellant”) appeals from denial of a directed verdict
made at the close of Appellant’s evidence and renewed at the close of all evidence
dated 29 August 2016, from a judgment entered on 22 September 2016 in favor of
PARKER V. DESHERBININ
Opinion of the Court
Michael and Elizabeth DeSherbinin (collectively “Appellees”), and from an order
dated 1 December 2016, denying Appellant’s motion for judgment notwithstanding
the verdict, to amend the judgment and for a new trial. For the following reasons, we
affirm in part, reverse in part the trial court’s judgment, vacate in part, and remand
for further findings of fact.
I. Background
Appellant and Appellees own adjoining tracts of real property located in New
Hanover County, adjacent to the Intracoastal Waterway. Appellant acquired his
property, located at 19 Bridge Rd., from himself as trustee of the Grace Pittman Trust
by a general warranty deed dated 21 December 1983. The deed was recorded on 16
January 1984 in Book 1243, at Page 769, in the New Hanover County Registry.
The Appellees acquired their property, a vacant lot, located at 1450 Edgewater
Club Rd., by a warranty deed from John Anderson Overton and Holland Ann Overton,
dated 16 December 2013 and recorded 17 December 2013 at Book 5788, at Page 1866,
in the New Hanover County Registry. Appellees purchased their property with the
intent to build a residence. The Appellees hired a surveyor, Marc Glenn, to survey
the property and prepare a plat.
Glenn’s survey (the “Glenn survey”) fixed the boundary between Appellant’s
and Appellees’ properties to be approximately 5 feet south of the line established in a
survey completed in 1982 by surveyor George Losak (the “Losak survey”) and
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Opinion of the Court
recorded at Map Book 21, at Page 63, in the New Hanover County Registry. The
Glenn survey shows a chain link fence installed by Appellant to the north of the
boundary line between the parties’ properties. The Glenn survey failed to reference
the prior recorded Losak surveys or show any overlaps in the surveyed boundary
lines.
In the Spring of 2014, Appellant and Appellees met regarding the boundary
line between their properties. Appellant informed Appellees of an existing issue
regarding the location of the boundary line. Appellees were also made aware, by their
seller, prior to their purchase, that a dispute existed over the boundary line of the
two properties. Appellees’ attorney closed on the property as shown in the Glenn
survey, certified title thereto and obtained title insurance thereon.
Appellees filed for a building permit for the residence they intended to
construct at 1450 Edgewater Club Rd. Appellees attached a copy of the Glenn survey
to their building permit application. Appellant complained and shared the recorded
Losak survey with the New Hanover County planning and zoning office, prior to the
issuance of the Appellees’ building permit being issued, but to no avail.
Appellees continued to build their residence based on their belief the Glenn
survey correctly showed the boundary. Appellant commissioned yet another survey
from Charles Riggs, a registered licensed surveyor (the “Riggs survey”), while
Appellees’ house was under construction.
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Opinion of the Court
Appellant filed an initial complaint on 23 June 2015 and an amended
complaint on 7 January 2016. Appellant asserted claims for negligence, nuisance,
declaratory judgment to identify the boundary line, adverse possession under color of
title, and adverse possession under twenty years of continuous possession. On 4
March 2016, Appellees filed an answer denying Appellant’s claims and a
counterclaim seeking a declaratory judgment to identify and establish the boundary
line based upon their Glenn survey.
On 29 August 2016, the case came to trial. The parties agreed to waive trial
by jury. Appellant moved for a directed verdict at the close of his evidence and
renewed again at the close of all evidence. These motions were denied.
Among the findings of fact made by the trial court are the following:
7. The Plaintiff’s and Defendants’ properties adjoin each
other with the Defendants’ property lying adjacent to and
to the north of Plaintiff’s property.
8. A map of Edgewater Subdivision recorded in Map Book
2, at Page 113, is the original map of Edgewater
Subdivision (herein “Edgewater Map”) and created said
subdivision.
9. Plaintiff’s and Defendants’ properties are portions of
Lots 4 and Lot 5 as shown on the map of Edgewater
Subdivision, as recorded in Map Book 2, at Page 113, of the
New Hanover County Registry.
10. The Defendants engaged James B. Blanchard, PLS, a
licensed registered land surveyor to perform a survey of the
parties properties in February, 2016 to establish the
dividing line between Lots 4 and 5 of Edgewater
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Opinion of the Court
Subdivision as shown on Map Book 2, at Page 113, of the
New Hanover County Registry and then to establish the
boundary-line between the property of the parties.
11. At the trial of this matter, Defendants presented the
testimony of Mr. Blanchard who was tendered to and
accepted by the Court without objection by Plaintiff as an
expert witness in land surveying.
12. That none of the original monuments shown on the
Edgewater Map could be located by Mr. Blanchard.
13. Mr. Blanchard established the dividing line between
Lots 4 and 5 of Edgewater Subdivision as follows:
a. By determining the northern line of Edgewater
Subdivision by determining the southern line of Avenel
Subdivision, the adjoining property to the north of
Edgewater, as shown on a map recorded in Map Book 31,
at Page 36 (herein “Avenel Map”) and a map recorded in
Map Book 7, at Page 14, both in the New Hanover County
Registry.
b. That concrete monuments evidencing the southern line
of Avenel and the northern line of Edgewater are shown on
the Avenel Map and were located by Mr. Blanchard.
c. Mr. Blanchard established a line southwardly and
perpendicular to the northern line of Edgewater
Subdivision and along the eastern right of way of Final
Landing Lane, as shown on the Edgewater Map, for the
distance shown on the Edgewater Subdivision Map
required to reach the dividing line between Lots 4 and 5 all
as shown on the Edgewater Map.
d. Mr. Blanchard located the northern line of the tract
adjoining Edgewater Subdivision on the south, i.e. the
southern line of Edgewater Subdivision, as shown on a map
recorded in Map Book 11, at Page 17, of the New Hanover
County Registry.
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Opinion of the Court
e. Mr. Blanchard found monuments confirming his
determination of the southern line of Edgewater
Subdivision as shown on the original Edgewater Map.
f. That the Edgewater Map showed a fence running along
the northern line of Edgewater Subdivision and that Mr.
Blanchard, during the performance of his field work,
located remnants of a wire fence running along the line
which he determined to be the northern line of Edgewater.
14. The Defendants introduced a map by Mr. Blanchard
dated July 9, 2016 (Defendants’ Exhibit 21, herein the
“Blanchard Map”), showing the findings of his survey and
illustrating his testimony and opinions as to the location of
the boundary-line between Lots 4 and 5 of Edgewater
Subdivision, as well as the boundary-line between the
Defendants’ tract to the north described in Deed Book
5788, at Page 1866, of the New Hanover County Registry,
and Plaintiff’s tract to the south described in Deed Book
1243, at Page 769, of the New Hanover County Registry.
15. George Losak, registered land surveyor, prepared a
map for “The William Lyon Company” dated December 30,
1982, recorded in February 10, 1983 and in Map Book 21,
at Page 63, of the New Hanover County Registry (the
“Losak Survey”) showing or purporting to show the
property later purchased by Plaintiff.
16. In August 1983, Mr. Losak prepared a second map of
the property for “The Grace Pittman Trust” which was
recorded on September 7, 1983 in Map Book 22, at Page 20,
of the New Hanover County Registry. The purpose of this
map was to correct errors contained in the Losak Survey.
17. Plaintiff’s deed dated December 21, 1983 and recorded
on January 16, 1984 referred to the Losak Survey, recorded
in Map Book 21, at Page 63, of the New Hanover County
Registry.
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Opinion of the Court
18. The Losak Survey referred to hereinabove depicts pipes
and monuments which Mr. Losak ignored in determining
the boundary-line between the subject properties.
19. The Court finds Mr. Blanchard’s testimony to be
credible and correct as to the location of the boundary-line
between the Plaintiff’s and Defendants’ properties.
20. The true location of the boundary-line between
Plaintiff’s property and Defendants’ property is shown on
the Blanchard Map dated July 9, 2016 which describes the
dividing line between the parties’ properties as follows:
....
21. Defendants purchased their property, also known as
1450 Edgewater Club Road, in December of 2013.
22. At the time the Defendants purchased their property
the Plaintiff and Defendants’ predecessor in title were
engaged in a dispute with regard to the boundary-line
between the parties’ tracts.
....
24. The Defendants hired Polaris Surveying, LLC and
Marc Glenn, PLS to survey the property and prepare a
boundary survey, a site plan, and topographical survey.
25. Marc Glenn determined the boundary-line to be as
shown on his map recorded in Map Book 58, at Page 363,
of the New Hanover County Registry, which is
substantially where Mr. Blanchard locates the boundary-
line.
....
30. After closing on their property the Defendants had a
chance meeting with the Plaintiff on site on or about April
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Opinion of the Court
or May of 2014 while they were meeting with a contractor
during the design phase of their home.
31. During this chance meeting Plaintiff raised the
boundary-line issue and told Defendants about the Losak
Survey and the monuments Losak found, but he did not
show any of the monuments to the Defendants nor did he
point them out.
32. In October 2014, after hiring several surveyors and
attempting to hire several other surveyors Plaintiff hired
Charles Riggs to survey his property and to confirm the
description contained on the Losak Surveys.
33. At the time Plaintiff hired Mr. Riggs the Defendants
house was approximately forty percent (40%) complete.
34. Charles Riggs provided the Plaintiff with a survey
reflecting his findings on January 30, 2015.
35. The Defendants first saw the Riggs Survey in 2015
when their house was approximately seventy percent (70%)
complete.
36. The New Hanover County zoning ordinance requires a
minimum side set back of fifteen feet (15’) for structures
built on Defendants’ property.
37. In 1985, the Plaintiff constructed a fence along what he
believed to be the northern-boundary line of his property
and the southern boundary-line of Defendants’ property.
This area is hereto referred to [as] the “Disputed Area”.
38. After 2005, Plaintiff would occasionally reach through
the fence or lean over the fence to trim vines growing on
the property to the north of the fence, the property now
owned by Defendants.
39. The [D]isputed [A]rea could not be mowed because it
was so overgrown. There was nothing visible to indicate
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Opinion of the Court
anyone was in possession of or maintaining the Disputed
Area.
The trial court also made the following relevant conclusions of law:
2. Plaintiff’s and Defendants’ chains of title and vesting
deeds both establish that the dividing line between the
property, i.e. their common boundary, is the dividing line
between tracts 4 and 5 of Edgewater Subdivision as shown
on the map of said subdivision recorded in Map Book 2, at
Page 113, of the New Hanover County Registry or can only
be determined by locating the line between Lots 4 and 5 of
Edgewater Subdivision.
3. That the true boundary-line between Plaintiff and
Defendants is as shown on the Blanchard Map referred to
in the findings of fact and further more particularly
described as follows:
....
4. That the Defendants were not negligent in purchasing
their property or in proceeding with the construction of
their residence on their property.
5. That the construction and location of Defendants’ home
does not violate the fifteen foot (15’) minimum side set back
requirement of the New Hanover County zoning ordinance.
6. That the actions of the Defendants did not constitute a
substantial interference with the Plaintiff’s use of his
property and were not unreasonable and therefore do not
constitute a nuisance.
7. That Plaintiff’s possession, if any, of any portion of the
[D]isputed [A]rea was not open, notorious, or continuous
and therefore [does] not constitute adverse possession
either with or without color of title.
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Opinion of the Court
On 22 September 2016, the trial court found in favor of Appellees on all of
Appellant’s claims and entered judgment. Appellant filed a motion for judgment
notwithstanding the verdict, a motion to amend the judgment, and a motion for a new
trial which were all denied by the trial court on 1 December 2016. Appellant timely
filed an amended notice of appeal on 30 December 2016.
II. Statement of Jurisdiction
Jurisdiction lies in this Court from a final judgment of the superior court
pursuant to N.C. Gen. Stat. § 7A-27(b) (2015).
III. Standard of Review
Where trial is other than by jury, “[t]he trial judge acts as both judge and jury
and considers and weighs all the competent evidence before him. If different
inferences may be drawn from the evidence, the trial judge determines which
inferences shall be drawn and which shall be rejected.” In re Estate of Trogdon, 330
N.C. 143, 147-48, 409 S.E.2d 897, 900 (1991) (emphasis and citation omitted).
In a bench trial in which the superior court sits without a
jury, the standard of review is whether there was
competent evidence to support the trial court’s findings of
fact and whether its conclusions of law were proper in light
of such facts. Findings of fact by the trial court in a non-
jury trial are conclusive on appeal if there is evidence to
support those findings. A trial court’s conclusions of law,
however, are reviewable de novo.
Hanson v. Legasus of North Carolina, LLC, 205 N.C. App. 296, 299, 695 S.E.2d 499,
501 (2010) (citation omitted).
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Opinion of the Court
IV. Analysis
Appellant argues several of the trial court’s findings of fact are unsupported by
competent evidence, and several of the trial court’s conclusions of law are not
supported and improper in light of the relevant findings of facts and law. We address
the disputed findings of fact and conclusions of law in turn.
A. Finding of Fact 37
Appellant argues no competent evidence supports the trial court’s finding of
fact 37 that “in 1985, the [Appellant] constructed a fence along what he believed to be
the northern-boundary line of his property and the southern boundary-line of
[Appellees’] property.” (Emphasis supplied.). Appellees do not contest Appellant’s
assertion and testimony that the chain link fence was not placed on what Appellant
considered to be the boundary line of the subject properties.
After reviewing the record and stipulations of counsel at oral argument, we
hold that no evidence supports the trial court’s finding of fact 37 that “Appellant
constructed a fence along what he believed to be the northern-boundary line of his
property.” The overwhelming, non-contradicted evidence indicates Appellant
constructed a fence within the boundary of his property as purportedly established
by the Losak survey.
Appellant testified at trial that when he purchased the property at 19 Bridge
Rd., a low fence referred to as the “neighbor’s fence” was inside the boundary line on
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Opinion of the Court
the Losak survey. The Losak survey indicates the “neighbor’s fence” was one to five
feet south of the boundary line purportedly established by the Losak survey.
Appellant testified that sometime in 1984 or 1985, he constructed a chain link
fence adjacent to the “neighbor’s fence” as indicated on the Losak survey. Appellant
stated he did not put the chain link fence on what he believed to be the property line,
because dogwood trees and vegetation existed along the purported property line.
Appellant stated he wanted enough space to remain between the purported property
line and the chain link fence to prevent the neighbors from damaging the fence.
Appellant additionally testified the chain link fence had not been moved since
it was constructed in 1984 or 1985. Appellant submitted a photograph labeled
Plaintiff’s Exhibit 25.20 which showed the chain link fence as it was located in the
mid-1980’s and in the present day.
Appellant’s expert, Charles Riggs, produced a survey which shows the Losak
survey line claimed by Appellant and the Blanchard survey line claimed by Appellees,
and determined by the trial court to be the boundary line. The Riggs survey indicates
the chain link fence was located between the disputed survey lines.
Also submitted into evidence was a 5 December 2013 email from Holly
Overton, Appellees’ predecessor-in-title to 1450 Edgewater Club Rd., to Nicole
Valentine, the buyer’s agent for Appellees, which discusses the location of the chain
link fence. In her email, Ms. Overton mentioned the Losak survey line and the
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Blanchard survey line and stated the chain link fence “is located in the middle of the
two property lines mapped.”
As Appellant accurately argues, no testimony or other evidence supports the
trial court’s finding of fact 37 that “in 1985, the [Appellant] constructed a fence along
what he believed to be the northern-boundary line of his property and the southern
boundary-line of [Appellees’] property.” Appellees’ only argument against Appellant
on this point is that because “Appellant never located the chain link fence on the
ground it is impossible to locate the fence with any more precision.”
However, counsel agree the chain link fence is “known and visible” and is in
the same location it was in when Appellant first built it in 1984 or 1985.
Furthermore, no evidence was presented at trial to contradict the location of the chain
link fence as surveyed by Appellant’s surveyor, Riggs.
No competent evidence supports the trial court’s finding of fact 37.
B. Finding of Fact 39
Appellant argues insufficient evidence supports the trial court’s finding of fact
39: “The [D]isputed [A]rea could not be mowed because it was so overgrown. There
was nothing visible to indicate anyone was in possession of or maintaining the
Disputed Area.” Appellees concede competent evidence was presented of Appellant’s
open and continuous possession of that portion of the Disputed Area up to the location
of Appellant’s chain link fence.
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Opinion of the Court
Appellant produced photographs, admitted into evidence, which tend to show
the condition of the property as maintained by Appellant since he first acquired it in
1983. Appellant’s unchallenged photographs depict a maintained and cleared lawn,
with storage and buildings established along the fence line.
An email from Holly Overton, the Appellees’ predecessor-in-title to 1450
Edgewater Club Rd., to Nicole Valentine, the Appellees’ agent, stated Appellant
would trim bushes along the chain link fence in the Disputed Area and store his
equipment. Appellees presented no evidence to dispute Appellant’s continued
maintenance of the property in the portion of the Disputed Area south of the chain
link fence.
The trial court’s finding of fact 39 is not supported by competent evidence, to
the extent it expresses the Disputed Area “could not be mowed because it was so
overgrown. There was nothing visible to indicate anyone was in possession of or
maintaining the Disputed Area.”
C. Conclusion of Law 7
Appellant argues the trial court’s conclusion of law 7 is in error based upon the
law of adverse possession and the unsupported findings of fact that he did not use,
maintain, and possess the Disputed Area on his property’s side of the chain link fence.
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Opinion of the Court
Conclusion of law 7 states: “That Plaintiff’s possession, if any, of any portion of
the [D]isputed [A]rea was not open, notorious, or continuous and therefore [does] not
constitute adverse possession either with or without color of title.”
1. Adverse Possession for Twenty Years
In North Carolina, “[t]o acquire title to land by adverse possession, the
claimant must show actual, open, hostile, exclusive, and continuous possession of the
land claimed for the prescriptive period[.]” Jones v. Miles, 189 N.C. App. 289, 292,
658 S.E.2d 23, 26 (2008) (citation and quotation marks omitted); Federal Paper Board
Co. v. Hartsfield, 87 N.C. App. 667, 671, 362 S.E.2d 169, 171 (1987) (holding that
“[t]itle to land may be acquired by adverse possession when there is actual, open,
notorious, exclusive, continuous and hostile occupation and possession of the land of
another under claim of right or color of title for the entire period required by the
statute.”) (internal quotation marks and citation omitted).
Adverse possession of privately owned property without color of title must be
maintained for twenty years in order for the claimant to acquire title to the land. N.C.
Gen. Stat. § 1-40 (2015).
Presuming, arguendo, the trial court was correct in determining the Blanchard
survey line was the correct boundary line between the parties’ properties of Lots 4
and 5, uncontradicted evidence proves Appellant’s actual occupation and continuous
use of the property on the southern half of the Disputed Area since he acquired 19
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Opinion of the Court
Bridge Rd. in the early 1980s.
Appellant’s installation of the chain link fence and his admitted maintenance
of the area around and inside it since he established the fence in 1984 or 1985 shows
his actual, open, notorious, exclusive and hostile use of property located on the south
side of the chain link fence in the Disputed Area to support his claim for adverse
possession under the requisite twenty year possession period. See Blue v. Brown, 178
N.C. 334, 337, 100 S.E. 518, 519 (1919) (holding a fence, maintained for many years,
a hedgerow and possession for 30 or 40 years justified verdict for adverse possession);
Brittain v. Correll, 77 N.C. App. 572, 575, 335 S.E.2d 513, 515 (1985) (holding a fence
and other outbuildings showed claimants were asserting exclusive right over the
disputed property); Snover v. Grabenstein, 106 N.C. App. 453, 459, 417 S.E.2d 284,
287 (1992) (holding that fence in place for more than fifty years such that the
possession exercised by parties on either side of it was open, notorious and continuous
so as to constitute adverse possession).
Appellees presented no evidence that they, or their predecessors-in-title,
disputed or gave permission to Appellant to erect his chain link fence in the Disputed
Area, until they sent a letter to Appellant in 2014, more than thirty years after
Appellant built the fence. Appellees presented no evidence that anyone, other than
Appellant, claimed, used, or maintained the area on the south side of the chain link
fence after Appellant acquired 19 Bridge Rd. in 1983.
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Opinion of the Court
The uncontradicted evidence shows Appellant’s actual, open, notorious,
exclusive, continuous and hostile occupation and possession of the area on the south
side of the chain link fence within the Disputed Area for the statutory period. See
Federal Paper Board, 87 N.C. App. at 671, 362 S.E.2d at 171.
Appellees’ counsel conceded at oral argument before this Court that
Appellant’s uncontradicted evidence established adverse possession to the portion of
the Disputed Area on the south side of the chain link fence. The trial court erred, as
a matter of law, in concluding Appellant had not established adverse possession to
the south side of the Disputed Area bounded by the chain link fence.
2. Color of Title
Appellant argues he is entitled to the entire Disputed Area on the north and
south side of the chain link fence through adverse possession under color of title.
Appellant asserts the deed under which he acquired title to 19 Bridge Rd.
establishes color of title so that he is entitled to the area of property located north of
the chain link fence in the Disputed Area by adverse possession under color of title.
By statute, when the claimant’s possession is maintained under an instrument that
constitutes “color of title,” the prescriptive period is reduced from twenty to seven
years. N.C. Gen. Stat. § 1-38(a) (2015).
Appellees argue Appellant’s adverse possession under color of title claim fails,
as a matter of law, because the Losak survey referenced in Appellant’s deed stated
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an incorrect boundary line.
Our Supreme Court has held:
A deed offered as color of title is such only for the land
designated and described in it. Norman v. Williams, 241
N.C. 732, 86 S.E.2d 593; Locklear v. Oxendine, 233 N.C.
710, 65 S.E.2d 673; Barfield v. Hill, 163 N.C. 262, 79 S.E.
677. “A deed cannot be color of title to land in general, but
must attach to some particular tract.” Barker v. Southern
Railway, 125 N.C. 596, 34 S.E. 701. To constitute color of
title a deed must contain a description identifying the land
or referring to something that will identify it with
certainty. Carrow v. Davis, 248 N.C. 740, 105 S.E.2d 60;
Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759.
....
When a party introduces a deed in evidence which he
intends to use as color of title, he must, in order to give
legal efficacy to his possession, prove that the boundaries
described in the deed cover the land in dispute. Smith v.
Fite, 92 N.C. 319. He must not only offer the deed upon
which he relies for color of title, he must by proof fit the
description in the deed to the land it covers-in accordance
with appropriate law relating to course and distance, and
natural objects and other monuments called for in the deed.
Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1, 89 S.E.2d
765; Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600; Williams
v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Locklear v.
Oxendine, supra; Smith v. Benson, 227 N.C. 56, 40 S.E.2d
451.
McDaris v. “T” Corp., 265 N.C. 298, 300-01, 144 S.E.2d 59, 61 (1965) (emphasis
supplied).
A plaintiff’s burden at trial is also well established:
[I[n order to present a prima facie case [of adverse
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Opinion of the Court
possession], [a plaintiff] must . . . show that the disputed
tract lies within the boundaries of their property. See Cutts
v. Casey, 271 N.C. 165, 167, 155 S.E.2d 519, 521
(1967); Batson v. Bell, 249 N.C. 718, 719, 107 S.E.2d 562,
563 (1959). Plaintiffs thus bear the burden of establishing
the on-the-ground location of the boundary lines which they
claim. Virginia Electric and Power Co. v. Tillett, 80 N.C.
App. 383, 391, 343 S.E.2d 188, 194, disc. review denied, 317
N.C. 715, 347 S.E.2d 457 (1986). If they introduce deeds
into evidence as proof of title, they must “locate the land by
fitting the description in the deeds to the earth's
surface.” Andrews v. Bruton, 242 N.C. 93, 96, 86 S.E.2d
786, 788 (1955).
Chappell v. Donnelly, 113 N.C. App. 626, 629, 439 S.E.2d 802, 805 (1994) (emphasis
supplied).
The evidence shows Appellant acquired title to 19 Bridge Rd. pursuant to a
recorded deed in 1983. Appellant’s deed contains a metes-and-bounds description,
and refers and incorporates into the deed the recorded survey prepared by George
Losak. See Collins v. Land Co., 128 N.C. 563, 565, 39 S.E. 21, 22 (1901) (“[A] map or
plat, referred to in a deed, becomes a part of the deed as if it were written therein[.]”).
The trial court’s conclusion of law 7 is not supported by the trial court’s findings
of fact and is in error as a matter of law, to the extent it states Appellant has not
established adverse possession of the Disputed Area south of the chain link fence.
See Hanson, 205 N.C. App. at 299, 695 S.E.2d at 499. There remain unresolved
factual issues of whether the metes-and-bounds description contained in Appellant’s
deed and the incorporated reference to the Losak survey accurately describe the
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extent of Appellant’s property.
Even though the trial court found the Blanchard survey accurately shows the
true boundary line between the Appellant and Appellees’ properties, the court made
no findings regarding whether Appellant had shown the on-the-ground boundary
lines described in his deed and depicted in the Losak survey referenced therein. To
determine whether Appellant has adversely possessed the remaining portion of the
Disputed Area under color of title, it is necessary for the trial court to make findings
of fact regarding whether Appellant can fit the description of the deed and survey
under which he claims color of title to the portion of the Disputed Area north of his
chain link fence. See Andrews, 242 N.C. at 96, 86 S.E.2d at 788.
We reverse and remand this matter to the trial court to determine whether the
deed and survey under which Appellant acquired title sufficiently describes the
remaining portion of the Disputed Area.
3. Lappage
Appellant argues this case involves an issue regarding the parties presenting
overlapping claims of ownership to the Disputed Area, known as a “lappage.”
In a case of “lappage,” a dispute between property owners where their
respective titles purport to grant ownership to and over an overlapping area, the
adverse claimant is not required to show actual possession of the entire area under
lappage:
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Opinion of the Court
It is thoroughly established law that when a person having
color of title to a particular tract of land, which the written
instrument, that is color of title, describes by known and
visible lines and boundaries, enters into and adversely
holds a part of such tract under the authority ostensibly
given him by such instrument asserting ownership of the
whole, his ensuing possession is not limited to the portion
of the tract as to which there has been an entry or actual
possession, but is commensurate with the limits of the tract
to which the instrument purports to give him title, provided
that at the inception, and during the continuance of the
possession, there has been no adverse possession of the
tract in whole or in part by another: and in this State such
possession, if exclusive, open, continuous and adverse for
seven consecutive years, the title being out of the State,
will ripen into an unimpeachable title to the whole,
provided there has been and is no adverse possession of the
tract in whole or in part during such seven consecutive
years by another.
Wachovia Bank & Tr. Co. v. Miller, 243 N.C. 1, 6, 89 S.E.2d 765, 769 (1955) (emphasis
supplied) (citations omitted).
If on remand, the trial court determines the Appellant’s metes-and-bounds
deed description and incorporated reference to the Losak survey contained in
Appellant’s deed can be located upon the ground and is sufficient to establish
Appellant possessed color of title to the remaining Disputed Area, Appellant will be
entitled to quiet title to the entirety of the Disputed Area, based on his undisputed
adverse possession for twenty years of that portion of the Disputed Area south of the
chain link fence. See id.
D. Nuisance and Negligence Claims
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PARKER V. DESHERBININ
Opinion of the Court
Appellant asserted claims for negligence and nuisance in his amended
complaint based on Appellees’ purported violation of New Hanover County’s 15 foot
setback requirement. Appellees presented evidence that they filed their building
permit application and site plan in reliance upon their surveyor’s plat and closing
attorney’s opinion of title, which did not indicate any encroachments into the setback
area. Appellees have made no improvements located upon Appellant’s property.
The true boundary line between the parties’ properties has not yet been
determined. Because this material factual issue has not been resolved, those portions
of the trial court’s judgment dismissing Appellant’s negligence and nuisance claims
with prejudice were premature and must be vacated.
V. Conclusion
A review of the record evidence and the testimony presented at trial and
stipulations of counsel on appeal shows some of the findings of fact made by the trial
court are not supported by any competent, substantial evidence. The trial court’s
conclusion that Appellant was not entitled to the portion on the south side of the
chain link fence within the Disputed Area by virtue of adverse possession for twenty
years is error as a matter of law.
Unresolved factual issues remain regarding whether Appellant’s deed and the
recorded Losak survey referenced and incorporated therein provide color of title to
the entirety of the Disputed Area, requiring remand to the trial court for further
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PARKER V. DESHERBININ
Opinion of the Court
findings of fact. Conclusion of law 7 is reversed and the matter remanded to the trial
court to make additional findings of fact and conclusions of law with regard to
Appellant’s claim of adverse possession by color of title, and to enter judgment
accordingly. The trial court’s dismissal of Appellant’s negligence and nuisance claims
with prejudice is vacated.
We remand this case with instructions to the trial court to enter judgment to
quiet title and award Appellant ownership to the portion of the Disputed Area on the
south side of Appellant’s chain link fence. If the physical location of the chain link
fence is not otherwise sufficiently located, the trial court is to direct James Blanchard,
P.L.S. or another licensed surveyor, to physically locate, fit and describe the location
of Appellant’s chain link fence. The expense of said survey shall be taxed as court
costs.
On remand, Appellant bears the burden of establishing that the boundaries
described in his deed and the incorporated Losak survey, through which he acquired
title to 19 Beach Rd., describe the portion of the Disputed Area north of the chain link
fence. See McDaris, 265 N.C. at 300-01, 144 S.E.2d at 61.
If the trial court finds and concludes that Appellant meets this burden, the
trial court is to also enter judgment quieting title and awarding Appellant ownership
of that portion of the Disputed Area north of the chain link fence and to the entire
Disputed Area. See Wachovia Bank, 243 N.C. at 6, 89 S.E.2d at 769.
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PARKER V. DESHERBININ
Opinion of the Court
The decision of the trial court is affirmed in part, reversed in part, vacated in
part, and the case is remanded for further findings as noted herein. It is so ordered.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND
REMANDED.
Judges BRYANT and INMAN concur.
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