              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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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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      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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                                  Opinion of the Court



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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