Myers v. Clodfelter

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1307
Filed: 7 June 2016
Davidson County, No. 13 CVS 130
JACK L. MYERS and ANNA BIANCA COE, Plaintiffs,
v.
STANLEY CLODFELTER and wife, RUBY Y. CLODFELTER, Defendants.
Appeal by defendants from order entered 10 August 2015 by Judge Ted S.
Royster, Jr. in Davidson County Superior Court. Heard in the Court of Appeals 11
May 2016.
Roberson Haworth & Reese, PLLC, by Christopher C. Finan and Matthew A.L.
Anderson, for plaintiff-appellees.
Jon W. Myers for defendant-appellants.
TYSON, Judge.
Stanley and Ruby Clodfelter (“Defendants”) appeal from the trial court’s grant
of a perpetual prescriptive easement in favor of Jack L. Myers and Anna Bianca Coe
(“Plaintiffs”). We affirm.
I. Background
Coe Road intersects Highway 64 in Lexington, North Carolina, and is
identified by a street sign. The tract where Coe Road intersects with Highway 64 is
owned by Plaintiff Myers. Coe Road runs south through two tracts owned by
MYERS V. CLODFELTER
Opinion of the Court
Defendants. The road continues south through two tracts owned by other parties,
who are not involved in this dispute. The road then crosses an 18.5 acre tract owned
by Plaintiff Myers, and continues to travel south through a 4.1 acre tract owned by
Plaintiff Coe.
The 18.5 acre tract owned by Mr. Myers and the 4.1 acre tract owned by Ms.
Coe are the properties affected by this easement dispute. Coe Road provides the only
means of ingress to and egress from these properties. A house, garage, and storage
building are located on Ms. Coe’s property. Ms. Coe lived on the property with her
parents when she was a child. Ms. Coe’s father lived on the property until 2005. Ms.
Coe testified her parents and grandparents maintained Coe Road by “scraping” it,
trimming trees, and adding gravel to the road.
A house is also located upon Mr. Myers’s property, which Myers has leased to
others in the past. Mr. Myers testified he also performed maintenance of Coe Road
by adding gravel and cinderblock, and trimming back trees. Water lines run from
Highway 64 along Coe Road to Plaintiffs’ properties.
Defendants became upset after Mr. Myers began to consider using his property
for a commercial paintball field. In 2005, Defendants dug a large ditch across Coe
Road, where the road traverses Defendants’ property. Plaintiffs have not been able
to access their properties by vehicles since the ditch was constructed.
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Opinion of the Court
Plaintiffs filed suit in superior court on 15 January 2013. Plaintiffs alleged
they, and their predecessors in title, have openly, notoriously, continually, and
adversely used Coe Road to cross Defendants’ property for over fifty years. Plaintiffs
sought an adjudication finding they are the holders of a non-exclusive prescriptive
easement through Defendants’ property along Coe Road, and an order permanently
enjoining Defendants from obstructing the road. Both Plaintiffs also sought
monetary damages to compensate for the the loss of use of their properties.
The case came before the trial court 17 March 2015. The court found Plaintiffs,
or their predecessors in title, have used Coe Road to access their properties and
provide utilities to their properties for over sixty years. The court further found:
Plaintiffs never asked Defendants for permission to use the road; Defendants never
gave Plaintiffs permission to use the road; Plaintiffs have used the road by claim of
right; and, Plaintiffs have maintained the road.
The trial court concluded Plaintiffs have openly, notoriously, and by claim of
right, used Coe Road to access their properties. The court decreed Plaintiffs as the
holders of a twelve foot wide perpetual prescriptive easement for ingress, regress and
utilities, over and across Defendants’ tracts. The court further concluded Defendants
wrongfully closed the road, and ordered them to return the road to its pre-existing
condition. The court did not award any damages to either Plaintiff. Defendants
appeal. Plaintiffs did not cross appeal.
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Opinion of the Court
II. Standard of Review
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 of law were proper in light of such facts.” Shear v.
Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) (citation
omitted). The 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).
III. Prescriptive Easement
“An easement by prescription, like adverse possession, is not favored in the
law[.]” Godfrey v. Van Harris Realty, Inc., 72 N.C. App. 466, 469, 325 S.E.2d 27, 29
(1985) (citation omitted). To establish the existence of a prescriptive easement, the
party claiming the easement must prove four elements:
(1) that the use is adverse, hostile, or under claim of right;
(2) that the use has been open and notorious such that the
true owner had notice of the claim; (3) that the use has been
continuous and uninterrupted for a period of at least
twenty years; and (4) that there is substantial identity of
the easement claimed throughout the twenty-year period.
Perry v. Williams, 84 N.C. App. 527, 528-29, 353 S.E.2d 226, 227 (1987) (citation and
quotation marks omitted).
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Opinion of the Court
Defendants argue Plaintiffs failed to show either a hostile or adverse use of
Coe Road, or a use of the road under claim of right, for a continuous and
uninterrupted period of at least twenty years.
Ms. Coe was two years old in 1992, when she acquired title to the 4.1 acre tract
from her great-grandparents. Ms. Coe’s great-grandparents had acquired ownership
of the tract in 1953. Since that time, Coe Road provided the only means of access and
egress to and regress from the property via Highway 64, and was used by Ms. Coe
and her predecessors in interest for that purpose. She had owned the tract around 13
years when Defendants closed the road in 2005.
Ms. Coe lived on the property with her parents while she was a child. While
Ms. Coe lived on the property, her parents “scraped” the road, cut back trees, and
added gravel to the roadbed. Ms. Coe’s parents and grandparents shared the costs of
maintaining the road.
Mr. Myers’s 18.5 acre property is directly north of Ms. Coe’s property. Mr. Myers
acquired his tract from Ms. Coe’s relatives by general warranty deeds recorded in
2001 and 2002. He had owned the tract three or four years when Defendants closed
access to his property. Evidence showed Mr. Myers also performed maintenance work
on the road. Neither Plaintiff had owned their property for the previous twenty years.
“‘Tacking’ is the legal principle whereby successive adverse users in privity
with prior adverse users can tack successive adverse possession of land so as to
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Opinion of the Court
aggregate the prescriptive period of twenty years.” Dickinson v. Pake, 284 N.C. 576,
585, 201 S.E.2d 897, 903 (1974) (citation omitted) (internal quotation marks
supplied). Plaintiffs must prove they or their predecessors in interest engaged in a
continuous and hostile or adverse use of the easement for at least twenty years prior
to the time Defendants closed the road. Id.; Perry, 84 N.C. App. at 528-29, 353 S.E.2d
at 227.
“A mere permissive use of a way over another’s land, however long it may be
continued, can never ripen into an easement by prescription.” Dickinson, 284 N.C. at
581, 201 S.E.2d at 900. “To establish that a use is ‘hostile’ rather than permissive, it
is not necessary to show that there was a heated controversy, or a manifestation of
ill will, or that the claimant was in any sense an enemy of the owner of the servient
estate.” Id. at 580-81, 201 S.E.2d at 900. Rather, “[a] ‘hostile’ use is simply a use of
such nature and exercised under such circumstances as to manifest and give notice
that the use is being made under a claim of right.” Id. at 581, 201 S.E.2d at 900
(citation omitted). This element is established by the introduction of “some evidence
accompanying the user which tends to show that the use is hostile in character and
tends to repel the inference that it is permissive and with the owner’s consent.” Id.
See also James A. Webster, Jr., Webster’s Real Estate Law in North Carolina §
15.18[2] (Patrick K. Hetrick & James B. McLaughlin, Jr. eds., 6th ed. 2011)
(“‘[H]ostility’ can be sufficiently shown by demonstrating a use exercised under such
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Opinion of the Court
circumstances as to manifest and give notice that the use was made under a claim of
right. Permission given after the hostile use has begun does not destroy the
hostility.”)
Defendants argue, while Plaintiffs may “tack,” their period of alleged adverse
use of the road with the period of use by their predecessors, they failed to present
evidence to show their predecessors’ use of the road was adverse. Mr. Myers has
known the Coe family for over fifty years, and the Coe family had always used the
easement to access his tract and Coe’s tract. He purchased his property from the Coe
family.
Defendant Ruby Clodfelter testified she had no problem with the use of the
road “as long as the Coes lived there,” but opposed Myers’ use of the road because of
his plan to allow a paintball field on his property. She did not specify which Coe
family member she referenced.
It is undisputed that Plaintiffs or their predecessors in interest continuously
and uninterruptedly used Coe Road for any and all purposes incident to the use and
enjoyment of their properties, and as their only means of access, for a period of at
least twenty years. Coe road is identified by a sign at its intersection with Highway
64. The use of the road was open and notorious and with full knowledge by
Defendants.
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Opinion of the Court
Our Supreme Court has found the “hostility” requirement to establish a
prescriptive easement was satisfied in cases with nearly identical facts. In Potts v.
Burnette, the Court stated:
Plaintiffs’ evidence, viewed in the most favorable light,
shows that the disputed roadway is the only means of
access to plaintiffs’ land and the cemetery located thereon
and has been openly and continuously used by plaintiffs,
their predecessors in title and the public for a period of at
least fifty years. No permission has ever been asked or
given. Plaintiffs, on at least one occasion, smoothed, graded
and gravelled the road, and have, on other occasions,
attempted to work on it. Although there was no evidence
that plaintiffs thought they owned the road, there was
abundant evidence that plaintiffs considered their use of
the road to be a right and not a privilege. This evidence is
sufficient to rebut the presumption of permissive use and
to allow, but not compel, a jury to conclude that the road
was used under such circumstances as to give defendants
notice that the use was adverse, hostile, and under claim
of right and that the use was open and notorious and with
defendants' full knowledge and acquiescence.
301 N.C. 663, 668, 273 S.E.2d 285, 289 (1981) (emphasis omitted).
Likewise, in Dickinson, the plaintiff and their predecessor maintained the road
in passable condition by raking leaves and scattering oyster shells. No evidence was
presented that the plaintiffs sought, or the defendants gave, permission for the
plaintiffs to use the road. The Court determined the evidence was sufficient to
overcome the presumption that the use of the road was permissive. 284 N.C. at 583-
84, 201 S.E.2d at 901-02. See also Perry, 84 N.C. App. at 529, 353 S.E.2d at 228
(finding testimony that the plaintiff’s agent maintained a farm path for the plaintiff’s
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Opinion of the Court
use, and that the plaintiff never asked for and was never given permission to use the
farm path, to be “evidence sufficient to rebut the presumption of permissive use”).
The record shows “abundant evidence” that Plaintiffs considered and
demonstrated their use of Coe Road to be by right, and not a privilege. Potts, 301 N.C.
at 668, 273 S.E.2d at 289. Under these precedents, the evidence is sufficient to rebut
the presumption that Plaintiffs’ and their predecessors’ use of Coe Road was
permissive. This evidence supports the trial court’s conclusion the “hostility”
requirement was met for a period of at least twenty years to establish a prescriptive
easement.
IV. Conclusion
Plaintiffs presented sufficient evidence to show all requirements for a
prescriptive easement. The trial court properly ordered that Plaintiffs possess a non-
exclusive perpetual prescriptive easement, known as Coe Road, for access, ingress,
egress, regress and utilities, in, over, across and through the properties of
Defendants. The judgment of the trial court is affirmed.
AFFIRMED.
Judges CALABRIA and HUNTER, JR. concur.
Report per Rule 30(e).
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