{ "id": 8522722, "name": "DALE G. VANDERVOORT, Plaintiff v. CAMERON McKENZIE and wife, CARMEN ANNA McKENZIE; GATEWAY MOUNTAIN PROPERTY OWNERS ASSOCIATION, an unincorporated Association; BETTY GILLIAM; ESTATE OF JAMES EMORY VESS; JOHNSON, PRICE & SPRINKLE, ESCROW; CHERYL KIRKLAND; and DORIS HARRISON, Defendants", "name_abbreviation": "Vandervoort v. McKenzie", "decision_date": "1992-02-04", "docket_number": "No. 9129SC115", "first_page": "297", "last_page": "302", "citations": [ { "type": "official", "cite": "105 N.C. App. 297" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "391 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "unpublished opinions" } ], "opinion_index": -1 }, { "cite": "98 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "year": 1990, "pin_cites": [ { "parenthetical": "unpublished opinions" } ], "opinion_index": -1 }, { "cite": "276 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564489, 8564527, 8564562, 8564600, 8564633 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0217-01", "/nc/302/0217-02", "/nc/302/0217-03", "/nc/302/0217-04", "/nc/302/0217-05" ] }, { "cite": "272 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523085 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0631-01" ] }, { "cite": "384 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "579", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520237 ], "year": 1989, "pin_cites": [ { "page": "74", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0072-01" ] }, { "cite": "273 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569981 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0663-01" ] }, { "cite": "256 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "220" } ], "opinion_index": 0 }, { "cite": "297 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571908 ], "year": 1979, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0506-01" ] }, { "cite": "294 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571905, 8571842, 8571878, 8571771, 8571807 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0555-05", "/nc/306/0555-03", "/nc/306/0555-04", "/nc/306/0555-01", "/nc/306/0555-02" ] }, { "cite": "291 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "894" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524761 ], "year": 1982, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0437-01" ] } ], "analysis": { "cardinality": 551, "char_count": 11529, "ocr_confidence": 0.774, "pagerank": { "raw": 1.2123703765820084e-07, "percentile": 0.596295768595003 }, "sha256": "cb3eb30e96ab25f9b39fa0de4f1490b2e145980529fa9705cb322cf9a655e765", "simhash": "1:16cd487d0dc3984c", "word_count": 1976 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and ORR concur." ], "parties": [ "DALE G. VANDERVOORT, Plaintiff v. CAMERON McKENZIE and wife, CARMEN ANNA McKENZIE; GATEWAY MOUNTAIN PROPERTY OWNERS ASSOCIATION, an unincorporated Association; BETTY GILLIAM; ESTATE OF JAMES EMORY VESS; JOHNSON, PRICE & SPRINKLE, ESCROW; CHERYL KIRKLAND; and DORIS HARRISON, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nOn appeal plaintiff contends that the trial court erred in granting defendants\u2019 motion for summary judgment \u201cwhen a prior motion on identical legal issues had been denied by another superior court judge.\u201d We agree in part and reverse the trial court\u2019s entry of summary judgment as to defendant Cameron McKenzie. We affirm the trial court\u2019s order as to the remaining defendants \u2014 Estate of Emory Vess; Doris Harrison; Johnson, Price & Sprinkle, P.A.; Cheryl Kirkland; and Carmen Anna McKenzie.\nThis Court has said that \u201ca motion for summary judgment denied by one superior court judge may not be allowed by another superior court judge on identical legal issues.\u201d American Travel Corp. v. Central Carolina Bank & Trust Co., 57 N.C. App. 437, 440, 291 S.E.2d 892, 894, disc. review denied, 306 N.C. 555, 294 S.E.2d 369 (1982). Here, on 25 April 1988 the trial court denied a motion for summary judgment on behalf of defendant Cameron McKenzie and defendant Gateway Mountain Property Owners Association. Plaintiff then filed an amended complaint naming additional defendants. Rule 56(b) provides: \u201cA party against whom a claim ... is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.\u201d These additional defendants were not before the trial court when the first motion for summary judgment was denied on 25 April 1988. Accordingly, they were entitled to a ruling on summary judgment and cannot be prejudiced by the trial court\u2019s earlier ruling against defendant Cameron McKenzie and defendant Gateway Mountain Property Owners Association.\n\u201cOrdinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so.\u201d Conover v. Newton, 297 N.C. 506, 512, 256 S.E.2d 216, 220 (1979). Here, before the second motion for summary judgment the parties provided the court with additional evidence, not available to the court on the first motion, that established defendants\u2019 right to judgment as a matter of law.\nTo establish a prescriptive easement, the plaintiff must show the following:\n(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 at least twenty years; and (4) that there is substantial identity of the easement claimed throughout the twenty-year period.\nP. Hetrick & J. McLaughlin, Webster\u2019s Real Estate Law in North Carolina \u00a7 318 (1988). In his complaint plaintiff alleged that his use of the easement was adverse to the owners of the servient estates. However, plaintiff\u2019s deposition, taken after the denial of defendants\u2019 first motion for summary judgment, reveals that plaintiff\u2019s use of the roadway was permissive. Plaintiff testified as follows:\nQ. Did you ever talk to Mr. Miller about using the road in access?\nA. I didn\u2019t \u2014 didn\u2019t talk to him about using it. I just told him I was going to keep it maintained for his benefit and mine, and I did.\nQ. What did he respond to that?\nA. He said, \u201cThat\u2019s fine.\u201d He\u2019s using the road too. He had just cut timber on it before I bought it, and he\u2019d been using it.\nQ. When did Mr. Miller first give you permission to use the road?\nA. I didn\u2019t get permission from Mr. Miller to use the road.\nQ. What you just said, you told him and he said it would be fine.\nA. I told him I was going to keep the road maintained, and he said, \u201cThat\u2019s fine with me.\u201d\nQ. Did you tell him you were going to use the road?\nA. Why would I be maintaining it? Of course I\u2019m going to maintain the road to use it.\nQ. What did he say when you told him you were going to use it?\nA. \u201cThat\u2019s fine.\u201d\nQ. He said, \u201cThat\u2019s fine.\u201d\nA. Right.\nLater in his deposition, plaintiff testified:\nA. I told [one of the members of the White family] I wanted to put a gate up on that road. After I had gotten that road maintained real well, I wanted to put a gate up, and I had to put it on their property, and would that be any problem for him, and he said no. I put the gate up, and I sent them keys. On several occasions, people would shoot the lock off. I\u2019d put new locks on, and then I\u2019d send them keys again. Every time I changed the lock, we sent them a set of keys.\nQ. Could you show on a map where the gate was?\nA. Sure. Well, I could \u2014l ean take you out there on the property and show you. If you had the right kind of map, I could show you. I put it just up above where the road turned off to go to Noey Vess\u2019s property, because I couldn\u2019t block Noey Vess from getting to his property on that road.\nQ. When you told the Whites that you were going to put a gate at that location, why did you say you were going to put the gate up?\nA. Because I had gotten the road in such good shape that you could take a car all the way to the top of that mountain, and a lot of people were starting to use it, and going there, and I thought that we needed to have some protection.\nQ. So how did the White that you spoke with respond to that?\nA. \u201cThat\u2019s fine.\u201d I said, \u201cI\u2019ll send you keys.\u201d He said, \u201cThat\u2019s great.\u201d\nIt is true that evidence of repairing or maintaining a roadway is evidence of intention to claim and use the land as one\u2019s own. See, e.g., Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981). However, in his deposition plaintiff admitted that he told the owner of the servient estate that he was going to keep the road maintained for both plaintiff\u2019s benefit as well as the owner\u2019s benefit. He also made sure that the Whites had keys to the gate that blocked the road. For a use to be adverse, it \u201cmust be with the intent to hold to the exclusion of others.\u201d P. Hetrick & J. McLaughlin, Webster\u2019s Real Estate Law in North Carolina \u00a7 319 (1988). Plaintiff clearly admitted that he did not intend to hold the easement to the exclusion of others. Also plaintiff\u2019s action in approaching the owner of the servient estate about the maintenance of the roadway and building the gate amounts to his asking the owner for permission. \u201cEntitlement to an easement by prescription is restricted because a landowner\u2019s \u2018merely neighborly act\u2019 of allowing someone to pass over his property may ultimately operate to deprive the owner of his land. For this reason, mere use alone is presumed to be permissive, and, unless that presumption is rebutted, the use will not ripen into a prescriptive easement.\u201d Johnson v. Stanley, 96 N.C. App. 72, 74, 384 S.E.2d 577, 579 (1989) (citation omitted). Here, plaintiff has not presented sufficient evidence to overcome the presumption that his use was permissive and the trial court appropriately granted the additional defendants\u2019 motion for summary judgment.\nAs to defendant Cameron McKenzie, we hold that the trial court erred in granting summary judgment in his favor because we are bound by this Court\u2019s holding in Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374 (1980), disc. review denied, 302 N.C. 217, 276 S.E.2d 914 (1981). In Carr this Court held that it was error for a superior court judge to determine defendant\u2019s second motion for summary judgment where another superior court judge had denied defendant\u2019s first motion, even though the materials presented at the second motion differed from those at the hearing on the first motion.\nFor the reasons stated, the order of the superior court is affirmed in part and reversed in part.\nAffirmed in part; reversed in part.\nJudges JOHNSON and ORR concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Carnes & Franklin, P.A., by Everette C. Carnes, for the plaintiff-appellant.", "Robert E. Dungan, P.C., by Robert E. Dungan and Michael E. Smith, for the defendant-appellees." ], "corrections": "", "head_matter": "DALE G. VANDERVOORT, Plaintiff v. CAMERON McKENZIE and wife, CARMEN ANNA McKENZIE; GATEWAY MOUNTAIN PROPERTY OWNERS ASSOCIATION, an unincorporated Association; BETTY GILLIAM; ESTATE OF JAMES EMORY VESS; JOHNSON, PRICE & SPRINKLE, ESCROW; CHERYL KIRKLAND; and DORIS HARRISON, Defendants\nNo. 9129SC115\n(Filed 4 February 1992)\n1. Courts \u00a7 84 (NCI4th)\u2014 summary judgment denied \u2014 motion by defendants added thereafter\nAdditional defendants who were added to the action after the trial court denied the original defendants\u2019 motion for summary judgment were not bound by the trial court\u2019s earlier ruling and were entitled to a ruling on their summary judgment motion.\nAm Jur 2d, Summary Judgment \u00a7 12.\n2. Easements \u00a7 32 (NCI4th)\u2014 prescriptive easement \u2014 permissive use\nPlaintiff\u2019s forecast of evidence was insufficient to establish a prescriptive easement in a roadway because his evidence showed that his use of the roadway was permissive rather than adverse where plaintiff\u2019s action in approaching the owner of the servient estate about maintenance of the roadway and placement of a gate across the roadway amounted to his asking the owner for permission; plaintiff admitted in his deposition that he told the owner of the servient estate that he was going to maintain the roadway for both plaintiff\u2019s benefit as well as the owner\u2019s benefit; and plaintiff made sure that, members of the family of the owner of the land on which the gate was placed had keys to the lock on the gate.\nAm Jur 2d, Easements and Licenses \u00a7\u00a7 51, 54.\n3. Courts \u00a7 84 (NCI4th)\u2014 summary judgment denied \u2014ruling on second motion by another judge inappropriate\nIt was error for a superior court judge to determine one defendant\u2019s second motion for summary judgment where another superior court judge had denied a prior motion for summary judgment on identical issues by this same defendant even though materials presented to the court on the second motion were different from those at the hearing on the first motion.\nAm Jur 2d, Courts \u00a7\u00a7 128, 130; Summary Judgment \u00a7 12.\nAPPEAL by plaintiff from order entered 2 October 1990 by Judge James J. Booker in MCDOWELL County Superior Court. Heard in the Court of Appeals 6 November 1991.\nOn 5 June 1987 plaintiff filed this action against Cameron McKenzie and Gateway Mountain Property Owners Association to establish \u201can easement of right of way by prescription\u201d over defendants\u2019 land. Defendants filed an answer and moved for summary judgment. On 25 April 1988 Judge Bruce Briggs denied defendants\u2019 motion for summary judgment. Defendants then made a motion to dismiss for failure to join necessary parties. On 8 September 1988 the trial court ordered the plaintiff to file an amended complaint to bring in the additional necessary parties. Plaintiff filed an amended complaint on 5 October 1988 naming as additional defendants Carmen Anna McKenzie; Betty S. Gilliam; Emory Vess; Johnson, Price & Sprinkle, P.A.; Cheryl Kirkland; and Doris Harrison.\nOn 21 March 1989, the Clerk of the Superior Court of McDowell County entered default judgment against defendants Gilliam, Vess, and Gateway Mountain Property Owners Association. The trial court granted defendant estate of Vess\u2019 motion to allow answer but denied the motions of Gateway Mountain Property Owners Association and Betty S. Gilliam. Gateway Mountain Property Owners Association and Betty S. Gilliam appealed the entry of default to this Court. A reading of these opinions indicates that we dismissed these appeals in Vandervoort v. McKenzie, 98 N.C. App. 157, 391 S.E.2d 225 (1990) (unpublished opinions). Judge James J. Booker granted defendants\u2019 motion for summary judgment by an order entered on 2 October 1990. Plaintiff appeals from this order.\nCarnes & Franklin, P.A., by Everette C. Carnes, for the plaintiff-appellant.\nRobert E. Dungan, P.C., by Robert E. Dungan and Michael E. Smith, for the defendant-appellees." }, "file_name": "0297-01", "first_page_order": 325, "last_page_order": 330 }