              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
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                                  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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                               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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      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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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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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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