{
  "id": 8523617,
  "name": "EARL FRANKLIN JENKINS and wife, MYRTLE M. JENKINS, Plaintiffs-Appellants v. DARRELL W. WILSON, Defendant-Appellee",
  "name_abbreviation": "Jenkins v. Wilson",
  "decision_date": "1994-02-01",
  "docket_number": "No. 9222SC1284",
  "first_page": "557",
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  "last_updated": "2023-07-14T17:21:41.323369+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Chief Judge ARNOLD and Judge WELLS concur."
    ],
    "parties": [
      "EARL FRANKLIN JENKINS and wife, MYRTLE M. JENKINS, Plaintiffs-Appellants v. DARRELL W. WILSON, Defendant-Appellee"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nPlaintiffs Earl Franklin Jenkins and Myrtle M. Jenkins are purchasing a tract of land in Davidson County through a land installment contract from the record owners of legal title, Christian Paul Tomain and Cynthia G. Tomain. Plaintiffs and their invitees use a dirt road which crosses the land of defendant to get to Briggstown Road. Plaintiffs have no recorded right of way to use this dirt road. Defendant Darrell W. Wilson removed a drain tile from this roadway causing a portion of the road to collapse.\nPlaintiffs filed a complaint and summons against defendant seeking mandatory relief in the form of road repairs, actual and punitive damages for damage to a roadway, and for an order declaring plaintiffs to possess an easement by implication in this roadway across defendant\u2019s land. On 7 August 1992, plaintiffs\u2019 motion for mandamus relief was denied by the superior court. On 10 August 1992, defendant filed an answer to the complaint, denying any wrongdoing in the use of his property, counterclaiming against plaintiffs for malicious injury to his real property, and claiming the complaint was frivolous in nature.\nOn 26 August 1992, defendant filed a motion to dismiss as to plaintiffs\u2019 complaint, along with a notice of motion and certificate showing service of same. On 8 September 1992, plaintiffs filed and served a reply to counterclaim. On 14 September 1992, upon defendant\u2019s motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(6) and after hearing, the trial judge dismissed plaintiffs\u2019 complaint. From this order, plaintiffs appeal to our Court.\nPlaintiffs argue on appeal that the trial court erred in granting defendant\u2019s motion to dismiss, and that the complaint which was filed adequately states a claim upon which relief can be granted. A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint. N.C.R. Civ. P. 12(b)(6); Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). A dismissal of a complaint for failure to state a claim upon which relief can be granted is proper when the complaint on its face reveals that no law supports plaintiff\u2019s claim or that facts sufficient to make good claim are absent or when some fact disclosed in that complaint necessarily defeats plaintiff\u2019s claim. Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986). In passing on this motion, all allegations of the complaint are deemed true and the motion should not be allowed unless the complaint affirmatively shows that the plaintiff has no cause of action. Grant v. Insurance Co., 295 N.C. 39, 243 S.E.2d 894 (1978).\nPlaintiffs argue that they have standing to establish and enforce an easement, as \u201cthe record possessors of the alleged dominant tract of an easement implied by prior unification of title. Possession is through a land installment contract with the record owners of the property.\u201d\nWe note that as persons purchasing under a land installment contract, plaintiffs\u2019 claim must either be of record, or derivative of the rights of their vendor. Plaintiffs do not allege a record claim in their complaint. Further, plaintiffs do not allege or identify with particular certainty an easement previously held by their vendor. Indeed, there is no allegation as to the identity of the current owner of the property. Therefore, we find that the trial court properly dismissed plaintiffs\u2019 complaint pursuant to N.C.R. Civ. P. 12(b)(6).\nThe decision of the trial court is affirmed.\nChief Judge ARNOLD and Judge WELLS concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Morrow, Alexander, Task, Long & Black, by Ronald B. Black, for plaintiffs-appellants.",
      "Greeson and Grace, P. A., by Warren C. Hodges, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "EARL FRANKLIN JENKINS and wife, MYRTLE M. JENKINS, Plaintiffs-Appellants v. DARRELL W. WILSON, Defendant-Appellee\nNo. 9222SC1284\n(Filed 1 February 1994)\nEasements \u00a7 54 (NCI4th) \u2014 action asserting easement \u201412(b)(6) dismissal \u2014 no error\nThe trial court properly granted a dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) in an action claiming an easement where plaintiffs, as purchasers under a land installment contract, did not allege a record claim, did not allege or identify with particular certainty an easement previously held by the vendor, and made no allegation as to the identity of the current owner of the property.\nAm Jur 2d, Easements and Licenses \u00a7 117.\nAppeal by plaintiffs from order entered 30 September 1992 by Judge Thomas W. Seay, Jr. in Davidson County Superior Court. Heard in the Court of Appeals 27 October 1993.\nMorrow, Alexander, Task, Long & Black, by Ronald B. Black, for plaintiffs-appellants.\nGreeson and Grace, P. A., by Warren C. Hodges, for defendant-appellee."
  },
  "file_name": "0557-01",
  "first_page_order": 587,
  "last_page_order": 589
}