              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA 17-83

                              Filed: 20 February 2018

Franklin County, No. 14 CVS 804

MICHAEL LESTER and PEGGY LOUANN BOWEN, Plaintiffs,

             v.

RACHEL GALAMBOS, Defendant.


      Appeal by Plaintiffs from order entered 1 July 2015 by Judge Carl R. Fox in

Franklin County Superior Court. Heard in the Court of Appeals 17 May 2017.


      Farris & Farris, PA, by Rhyan A. Breen, for plaintiffs-appellants.

      Perry & Brandt, Attorneys at Law, by Michael K. Perry and Trevor D. Brandt,
      for defendant-appellee.


      MURPHY, Judge.


      Michael Lester and Peggy Louann Bowen (collectively, “Plaintiffs”) and Rachel

Galambos (“Defendant”) dispute whether an easement exists over a portion of

Plaintiffs’ property. “[C]ourts will find the existence of an easement by implication

under certain circumstances[,]” including when an easement may be implied from

prior existing use. Knott v. Washington Hous. Auth. of the City of Washington, N.C.,

70 N.C. App. 95, 97, 318 S.E.2d 861, 862 (1984) (citation omitted). The use which

gives rise to an implied easement “must have been so long continued and obvious as
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                                  Opinion of the Court



to show it was meant to be permanent” at the time of the severance. Wiggins v. Short,

122 N.C. App. 322, 329, 469 S.E.2d 571, 577 (1996).

      On appeal, Plaintiffs contend the trial court erred by: (1) denying their motion

for summary judgment; (2) granting Defendant’s motion for summary judgment; and

(3) finding the existence of an easement implied by prior use. We agree, because as

a matter of law, an easement implied by prior use does not exist. Thus, the order

allowing Defendant’s motion for summary judgment and denying Plaintiffs’ motion

for summary judgment is in error.        We remand to the trial court for further

proceedings concerning whether an easement by grant exists.

                                   I. Background

A. Ownership of the Land

      Osprey Hills is a small subdivision in Franklin County, comprised of a series

of properties that line either side of an unimproved gravel road called Osprey Hills

Drive. Osprey Hills Drive is a private road that generally runs north-south and

allows property owners within the Osprey Hills subdivision to access Highway 98 to

the north. Osprey Hills Drive is the only means of ingress and egress to-and-from

the subdivision, and it is built atop a 45-foot-wide private access easement. At its

southern end, the gravel road terminates at one of the subdivision’s several

properties, 235 Osprey Hills Drive (“Tract 6”).




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      From 1996 to 2004, Tract 6 belonged to Charles and Laurie Roy (collectively,

“the Roys”) as part of a larger property they purchased in 1996. In 1998, the Roys

granted a deed of trust to Don E. Fuquay, Trustee, for the benefit of Green Tree

Financial Servicing, Lender, on Tract 6. Pursuant to the terms of the Deed of Trust,

the Roys gave up their right to convey an easement over any portion of the property

without prior written consent from the lender.

      The Roys began developing a portion of the property into the Osprey Hills

subdivision in 1998, and they sold other portions of the property as individual tracts

of land. Although several of the tracts of land were traditional home-sites, generally

rectangular in nature with one of the four sides bordering the private road, two tracts

were notably irregular. The first, Tract 6, was purchased by Plaintiffs at a 2004

foreclosure sale arising out of the 1998 Deed of Trust. The second, 165 Osprey Hills

Drive (“Tract 1A”), was purchased by Ann Caron (“Caron”) in 2002. In 2002, there

were no residential structures on Tract 1A, but by 2014, when Caron sold Tract 1A

to Defendant, she had built a house on the southwestern portion of the property.

B. Lay of the Land

      By way of orientation, when driving south on Osprey Hills Drive from the

highway, there are approximately 1-acre tracts on the left before reaching the roughly

150-foot portion of Tract 1A that borders the road. Continuing straight, a driver then




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passes another approximately 1-acre tract on the left (“Tract 3”) before encountering

a narrow, finger-like portion of Tract 6 ahead, where Osprey Hills Drive terminates.

      The finger-like portion of Tract 6 extends from the body of the tract towards

Osprey Hills Drive and contains Plaintiffs’ gravel driveway. It extends from the

northern edge of Tract 6 to the southern end of Osprey Hills Drive, abutting the

southwestern corner of Tract 3, and borders part of Tract 1A, which surrounds Tract

3 on its north, east, and south. The only portion of Tract 1A that borders the private

road is on the northern side of Tract 3. Tract 1A borders a narrow strip of Tract 6,

on which the private road turns into Plaintiffs’ driveway, on the southern side of Tract

3.

C. The Use of the Land

      When the Roys conveyed the undeveloped land that formed Tract 1A to Caron

in 2002, its northwestern portion abutted Osprey Hills Drive, as it still does. As a

result, Caron had access to her property immediately upon ownership. However,

between 2002 and 2004, a portion of the fence that separated the southwestern

portion of Tract 1A from the finger-like portion of Tract 6 was removed, and Caron

built a home and a driveway on the southwestern portion of Tract 1A. Caron’s

driveway led to Tract 6’s driveway through the break in the fence. During this time,

Caron used the portion of Tract 6’s driveway now in dispute to access Osprey Hills




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Drive rather than using the northwestern portion of Tract 1A that abutted Osprey

Hills Drive.

      When Plaintiffs purchased Tract 6 in 2004, they notified Caron that she was

using their property to access her own property. However, due to Caron’s age and

health, Plaintiffs gave Caron permissive use of their property until she moved.

Plaintiffs continued to use the finger-like portion of Tract 6 as their driveway, and

also parked implements and planted a grape vine on their side of the fence.

      In preparation for selling her house, Caron removed the remainder of the fence

that separated Tract 1A from Plaintiffs’ property.        Plaintiffs began to store

implements and vehicles where the fence had been in order to demarcate their

property line. Before Defendant purchased Tract 1A, Plaintiffs advised Defendant

that they would not extend the permissive use of their driveway to her as they had to

Caron. Accordingly, Defendant was able to negotiate an approximately 8% reduction

in the purchase price of Tract 1A from Caron in anticipation of litigation. After

Defendant purchased Tract 1A, Plaintiffs continued to store implements and

equipment where the fence had been. Defendant moved into her house on Tract 1A

on 24 July 2014 and had one of Plaintiffs’ vehicles towed that evening for blocking

her alleged right of way.

D. The Existence of an Easement




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       The survey maps included in the record on appeal clearly delineate the

relevant property boundaries, with one exception; a map filed by Caron in 2003 with

the Register of Deeds purports to show an easement benefitting Tract 1A over Tract

6.

       After the Roys encumbered Tract 6 with the 1998 Deed of Trust, they recorded

a land survey in Map Book 1998, Page 79, while developing Osprey Hills. The survey

depicts Osprey Hills Drive terminating at the northern border of Tract 6, with a

specific notation that the narrow, finger-like portion of Tract 6 contains an “existing

gravel driveway.”

       Three years later, the Roys recorded Map Book 2001, Page 200.1 It depicts

several dashed lines crossing Osprey Hills Drive but, unlike the other map books in

the record, does not provide a legend explaining the significance of these lines. Even

if a reader were to use the same legend applied in the other map book pages in the

record to interpret the dashed lines, Map Book 2001, Page 200 fails to indicate a

change to the boundary of Tract 6 or the existence of an easement over Tract 6, and

Tract 6 was still subject to the 1998 Deed of Trust.

       Caron registered a survey map approximately one month after purchasing

Tract 1A. The survey, Map Book 2003, Page 10, of the Franklin County registry,


       1 In Map Book 2001, Page 200, the Roys created Tract 10 by subtracting 0.689 acres from Tract
1A. However, when deeding Tract 1A to Caron, the Roys referred to the tract they previously recorded
in “Book of Maps 1998, Page 133, Franklin County Registry” and specifically noted that Tract 10 was
included in the approximately 20 acres they sold as Tract 1A.

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states in relevant part, “THERE IS SOME QUESTION AS TO WEATHER [sic] OR

NOT THE PRIVATE ACCESS EASEMENT RECORDED IN MAP BOOK 1998 PG

79 WAS EXTENDED TO [what became Tract 1A] WITH THE RECORDING OF MAP

BOOK 2001 PG 200[.] CONTACT ATTORNEYS FOR DETERMINATION OF ANY

ISSUES OF TITLE[.]”

       None of the map books in Plaintiffs’ chain of title discuss or indicate the

existence of an easement across Tract 6 benefitting Tract 1A.

E. Litigation

       Plaintiffs filed a complaint on 8 September 2014, seeking declaratory judgment

in regard to the existence of the alleged easement over the portion of Tract 6 that

extends in front of the southwestern portion of Tract 1A. Defendant filed an answer

and counterclaim for declaratory judgment. Defendant and Plaintiffs both moved for

summary judgment, and the motions were heard on 1 June 2015. After the hearing,

the trial court entered an order granting Defendant’s motion for summary judgment

and denying Plaintiffs’ motion for summary judgment. In doing so, the trial court

determined that an easement implied by prior use did in fact exist over Plaintiffs’

property.2 Plaintiffs gave timely notice of appeal.




       2  Defendant’s answer and counterclaim included a private nuisance claim; however, neither
party moved for summary judgment on that claim, and, thus, the trial court made no ruling as to that
claim in its order allowing Defendant’s motion for summary judgment and denying Plaintiffs’ motion
for summary judgment. This claim was resolved per an order entered 7 October 2016 and is not a part
of this appeal.

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                              II. Standard of Review

      “[The] standard of review of an appeal from summary judgment is de novo;

such judgment is appropriate only when the record shows that there is no genuine

issue as to any material fact and that any party is entitled to a judgment as a matter

of law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation

and quotation marks omitted). “[A]n issue is genuine if it is supported by substantial

evidence, which is that amount of relevant evidence necessary to persuade a

reasonable mind to accept a conclusion[.]” Liberty Mut. Ins. Co. v. Pennington, 356

N.C. 571, 579, 573 S.E.2d 118, 124 (2002) (internal citations and quotation marks

omitted). “[A]n issue is material if the facts alleged would constitute a legal defense,

or would affect the result of the action, or if its resolution would prevent the party

against whom it is resolved from prevailing in the action.” Id. at 579, 573 S.E.2d at

124 (citation and quotation marks omitted). When considering a motion for summary

judgment, relevant evidence is viewed in the light most favorable to the nonmoving

party. Id. at 579, 573 S.E.2d at 124 (citation omitted).

                                     III. Analysis

      An easement is a non-possessory right to make limited use of land owned by

another without taking a part thereof. Adelman v. Gantt, ___ N.C. App. ___, ___, 795

S.E.2d 798, 803 (2016) (quoting Builders Supplies Co. v. Gainey, 282 N.C. 261, 266,

192 S.E.2d 449, 453 (1972)). Although there are multiple types of easements, three



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are at issue in this case: (1) easements implied by prior use; (2) easements by grant;

and (3) prescriptive easements. Plaintiffs allege the affidavits and maps filed in

connection with this action show that no easement of any kind existed and therefore

they were entitled to summary judgment as a matter of law.

       The trial court granted Defendant’s motion for summary judgment and denied

Plaintiffs’ motion for summary judgment based on its conclusion that an easement

implied by prior use exists over Tract 6 for the benefit of Tract 1A, and, therefore, it

never considered the other methods of establishing an easement. Thus, while we

agree with Plaintiffs that an easement implied by prior use does not exist, the trial

court never reached the issue of whether an easement by grant exists. We therefore

remand for the trial court’s consideration of this remaining issue.3

       “An easement implied from prior use is generally established by proof: (1) that

there was common ownership of the dominant and servient parcels and a transfer

which separate[d] that ownership; (2) that, 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) that the claimed easement [was] ‘necessary’ to

the use and enjoyment of the claimant's land.” Knott, 70 N.C. App. at 98, 318 S.E.2d

at 863. “The burden of establishing an easement is upon the party asserting a right

to go upon lands to which he does not have title.” Wiggins, 122 N.C. App. at 329-30,


       3 We need not remand for the trial court to consider whether a prescriptive easement exists
because Defendant conceded it did not at the summary judgment hearing.

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469 S.E.2d at 577 (citation omitted). Further, in support of a motion for summary

judgment, “[s]imply restating the statutory language in affidavit form is inadequate

[proof].” United Cmty. Bank (Georgia) v. Wolfe, 369 N.C. 555, 560, 799 S.E.2d 269,

273 (2017).

      We first note that whether there was common ownership of the dominant and

servient parcels and a transfer which separated that ownership is not at issue in the

present case. Both the dominant and servient estates were once under the Roys’

common ownership. The severance occurred at the time of the Deed of Trust in 1998

when the Roys could no longer change the property or convey an easement.

      In regard to the second element necessary to establish the existence of an

easement by prior use, that, prior to 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[,]” Knott, 70 N.C. App. at 98, 318 S.E.2d at 863, “where 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 . . . .” Wiggins, 122 N.C. App. at 328, 469 S.E.2d at 576

(quoting Carmon v. Dick, 170 N.C. 305, 306-07, 87 S.E. 224, 225 (1915)). However,

the use which gives rise to an implied easement “must have been so long-continued

and obvious as to show it was meant to be permanent” at the time of the severance.

Wiggins at 329, 469 S.E.2d at 577. The “shortest time heretofore recognized as



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sufficient to imply an easement is thirteen years.” CDC Pineville, LLC v. UDRT of

North Carolina, LLC, 174 N.C. App. 644, 654, 622 S.E.2d 512, 519 (2005) (quoting

Tower Dev. Partners v. Zell, 120 N.C. App. 136, 144, 461 S.E.2d 17, 23 (1995)).

However, “[t]he majority of cases finding an easement by prior use were cases with a

use in excess of 30 years.” Id. at 654, 622 S.E.2d at 519-20 (citing Spruill v. Nixon,

238 N.C. 523, 78 S.E.2d 323 (1953) (at least 35 years); Biggers v. Evangelist, 71 N.C.

App. 35, 321 S.E.2d 524 (1984), disc. review denied, 313 N.C. 327, 329 S.E.2d 384

(1985) (30 years); McGee, 32 N.C. App. 726, 233 S.E.2d 675 (1977) (60 years); Dorman

v. Wayah Valley Ranch, Inc., 6 N.C. App. 497, 170 S.E.2d 509 (1969) (42 years)).

      In the instant case, Defendant offered an affidavit by the former common

owner, Mr. Charles Roy (“Mr. Roy”), in an attempt to show apparent, continuous, and

permanent use. In this affidavit, Mr. Roy states that he drove over Tract 6 to access

what became Tract 1A during the period during which he owned both properties

(1996-2002). Mr. Roy does not, however, specify: (1) the frequency of this use, (2)

which specific portion of either property was used and/or benefitted, or (3) how such

use would be obvious to a third party. Mr. Roy then offers, without elaboration, that

his use of Tract 6 to benefit what became Tract 1A “was apparent, continuous, and

permanent.” The record shows a lack of continuous and permanent use, as the Roys

only owned Tract 6 for two years before the property was bound by the terms of the

Deed of Trust, preventing the establishment of an easement. Even if the entire period



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                                 Opinion of the Court



in which the Roys owned Tract 6 was considered, it was only six years before Tract

1A was sold to Caron and, at the time, a fence separated the two tracts. Furthermore,

there was no evidence to suggest that the purported use was visible or apparent at

the time of the severance.

      Though there was common ownership followed by a separation of the

properties, there is no genuine issue of material fact that the use was not so

long-continued and obvious as to show it was meant to be permanent. Therefore, the

trial court erred by concluding that Defendant has an easement implied by prior use

over the portion of Plaintiffs’ property. As the alleged easement did not meet the

temporal requirements, we need not address whether the alleged easement was

necessary.

                                 IV. Conclusion

      We reverse the trial court with respect to the determination that Defendant

has an easement implied by prior use over Plaintiffs’ property. Consequently, we

must vacate the order allowing Defendant’s motion for summary judgment and

denying Plaintiffs’ motion for summary judgment, and remand to the trial court for

further proceedings concerning whether there is a genuine issue of material fact as

to the existence of an easement by grant.

      REVERSED IN PART AND REMANDED.

      Judges HUNTER, JR. and DAVIS concur.



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