{ "id": 8523540, "name": "LAWTON E. NICHOLS and wife, ZILPHIA MARIE HIGH NICHOLS, GLENWOOD H. PERRY and wife, JEAN F. PERRY, Plaintiffs v. SANFORD EARL WILSON and wife, AGNES WILSON, Defendants; SANFORD EARL WILSON and wife, AGNES WILSON, Plaintiffs v. LAWTON E. NICHOLS and wife, ZILPHIA MARIE HIGH NICHOLS, GLENWOOD H. PERRY and wife, JEAN F. PERRY, Defendants", "name_abbreviation": "Nichols v. Wilson", "decision_date": "1994-09-06", "docket_number": "No. 937SC391", "first_page": "286", "last_page": "293", "citations": [ { "type": "official", "cite": "116 N.C. App. 286" } ], "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": "N.C. Gen. Stat. \u00a7 38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1984, "pin_cites": [ { "page": "(1)" } ], "opinion_index": -1 }, { "cite": "35 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "634", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "225 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612651 ], "year": 1945, "pin_cites": [ { "page": "536", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0535-01" ] }, { "cite": "136 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "608" } ], "opinion_index": 0 }, { "cite": "262 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566471 ], "year": 1964, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0212-01" ] }, { "cite": "248 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "776", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 732", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555892 ], "year": 1978, "pin_cites": [ { "page": "734", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0732-01" ] }, { "cite": "251 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566666, 8566731, 8566699, 8566765, 8566803 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0411-01", "/nc/296/0411-03", "/nc/296/0411-02", "/nc/296/0411-04", "/nc/296/0411-05" ] }, { "cite": "246 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "530" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553579 ], "year": 1978, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0499-01" ] }, { "cite": "329 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "337", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "313 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726773 ], "year": 1985, "pin_cites": [ { "page": "369", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0362-01" ] }, { "cite": "273 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "287-88" }, { "page": "288", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569981 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "666" }, { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0663-01" ] }, { "cite": "315 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402561 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0631-01" ] }, { "cite": "310 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "94" } ], "opinion_index": 0 }, { "cite": "65 N.C App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525436 ], "year": 1983, "pin_cites": [ { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0626-01" ] }, { "cite": "332 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "57" } ], "opinion_index": 0 }, { "cite": "314 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696910 ], "year": 1985, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0001-01" ] }, { "cite": "354 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "272", "parenthetical": "quoting Penley v. Penley, 314 N.C. 1, 11, 332 S.E.2d 51, 57 (1985)" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 174", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169723 ], "year": 1987, "pin_cites": [ { "page": "177", "parenthetical": "quoting Penley v. Penley, 314 N.C. 1, 11, 332 S.E.2d 51, 57 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0174-01" ] } ], "analysis": { "cardinality": 732, "char_count": 16287, "ocr_confidence": 0.721, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7505675041286191 }, "sha256": "b31368844657200ed845ce2659a9ba5ba9882bfc2925e90ddad6056e32271d87", "simhash": "1:cf6ed02f5e75ed5e", "word_count": 2762 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and GREENE concur." ], "parties": [ "LAWTON E. NICHOLS and wife, ZILPHIA MARIE HIGH NICHOLS, GLENWOOD H. PERRY and wife, JEAN F. PERRY, Plaintiffs v. SANFORD EARL WILSON and wife, AGNES WILSON, Defendants SANFORD EARL WILSON and wife, AGNES WILSON, Plaintiffs v. LAWTON E. NICHOLS and wife, ZILPHIA MARIE HIGH NICHOLS, GLENWOOD H. PERRY and wife, JEAN F. PERRY, Defendants" ], "opinions": [ { "text": "ORR, Judge.\nThis case, which involves a property-line dispute, has seen two jury trials and one attempted appeal to this Court in its ten-year history. The property at issue, which includes an old mill pond and surrounding property in Old Fields Township in Wilson County, was once owned in its entirety by J.J. Wilson, who died in 1928. The mill pond was first created when J.J. Wilson built an earthen dam on the Mill Branch, as a source of water power for a grist mill and for other uses, before the turn of the century. During the period of time from about 1925, when the earthen dam washed out, to 1945, when the present dam was built, the pond site was used as fenced pasture, and remnants of the \u201cwire hog-type fence\u201d remain today. The Wilsons claim ownership of the mill pond and the mill site. The Wilsons\u2019 property is contiguous to the property of the Nichols and to the property of the Perrys. The dispute in the case is over the appropriate borders of the pond \u2014 the Nichols/Perrys claim that the Wilsons have raised the dam over the years and effectively trespassed upon their property by increasing the surface area of the pond. In addition, the Wilsons claim a right to a \u201ccartway\u201d leading from the dam site, crossing a portion of the Nichols\u2019 property, to a state road. The Wilsons base their claim to the \u201ccartway\u201d upon an alleged prescriptive easement acquired by their use of the path over the years.\nI. Directed Verdict\nThe Wilsons assign as error the trial court\u2019s directed verdict on the Wilsons\u2019 claim of a \u201ccartway\u201d across the property belonging to the Nichols. In considering a motion for directed verdict\nthe trial court must review all the evidence that supports the non-movant\u2019s claim as being true and that evidence must be considered in the light most favorable to the non-movant, giving to the non-movant the benefit of every reasonable inference that may legitimately be drawn from the evidence with contradictions, conflicts, and inconsistencies being resolved in the non-movarit\u2019s favor.\nDrain v. United States Life Ins. Co., 85 N.C. App. 174, 177, 354 S.E.2d 269, 272 (1987) (quoting Penley v. Penley, 314 N.C. 1, 11, 332 S.E.2d 51, 57 (1985)). \u201cA directed verdict is improper unless it appears as a matter of law that plaintiff cannot recover under any view of the facts which the evidence reasonably tends to establish.\u201d Willoughby v. Wilkins, 65 N.C App. 626, 631, 310 S.E.2d 90, 94 (1983), disc. review denied, 310 N.C. 631, 315 S.E.2d 697 (1984).\nThe following elements are required to establish the existence of an easement by prescription: 1) use that is adverse, hostile or under claim of right; 2) use that has been open and notorious such that the true owner had notice of the claim; 3) use that has been continuous and uninterrupted for a period of at least twenty years; and 4) a substantial identity of the easement claimed throughout the twenty-year period. Potts v. Burnette, 301 N.C. 663, 666, 273 S.E.2d 285, 287-88 (1981).\nTaking all of the evidence in the light most favorable to the Wilsons, we find that as a matter of law there was inadequate evidence to take the issue of a prescriptive easement to the jury. The Wilsons had the burden of proving the elements necessary for a prescriptive easement, starting with the \u201cuse that is adverse, hostile or under claim of right,\u201d and failed to meet that burden.\nA \u201chostile\u201d 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. There must be some evidence accompanying the user which tends to repel the inference that it is permissive and with the owner\u2019s consent. A mere permissive use of a way over another\u2019s land, however long it may be continued, can never ripen into an easement by prescription.\nPotts, 301 N.C. at 666, 273 S.E.2d at 288 (citations omitted). The Wilsons presented no evidence to rebut the presumption that any past use of the \u201ccartway\u201d was indeed permissive. In fact, testimony of one witness indicated that the owner of the property at the time the \u201ccart-way\u201d was in use, J.S. Wilson, actually agreed to let people use the path.\nFurthermore, there was no evidence presented by the Wilsons to show that the \u201ccartway\u201d was used under a \u201cclaim of right\u201d by those other than the owners. The Wilsons did not engage in the upkeep of the \u201ccartway\u201d and furthermore indicated that they had used the \u201ccart-way\u201d with the permission of the owners and not because they thought they had a right to use it. Therefore, even taking all of the evidence presented in the light most favorable to the Wilsons, we find that the trial judge\u2019s directed verdict on the issue of a prescriptive easement was not error.\nII. Summary Judgment\nThe Wilsons assign as error the trial court\u2019s entry of summary judgment on the issue of the means of determining the location of the boundary line. The Wilsons contend that the trial court erred in determining that the Cauley map\u2019s representation of the boundary line should be the guide for the jury\u2019s determination of the location of the boundary. However, we need not address the merits of the court\u2019s determination, as at trial the court included both the Manning and the Cauley maps as the options for the jury to select between in the jury instructions. As the summary judgment order was not applied to the jury instructions, and the jury actually chose the boundary as described in the Manning map, we find that there was no prejudice to the Wilsons, and therefore no need for further review of the summary judgment.\nWe note that the Nichols/Perrys did not cross-assign as error either the trial judge\u2019s failure to follow the determinations in the summary judgment order or the content of the jury instruction. Rule 10(d) of the North Carolina Rules of Appellate Procedure provides that\n[without taking an appeal an appellee, may cross-assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.\nN.C.R. App. P. 10(d).\nIII. The Judgment N.O.V.\nThe Wilsons also assign as error the trial court\u2019s entry of judgment notwithstanding the verdict. Rule 50 of the North Carolina Rules of Civil Procedure is entitled \u201c[mjotion for a directed verdict and for judgment notwithstanding the verdict.\u201d Rule 50 states that \u201ca party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict\u201d and that \u201cthe motion shall be granted if it appears that the motion for directed verdict could properly have been granted ....\u201d N.C.R. Civ. P. 50(b)(1). As our Supreme Court has explained, \u201cif the motion for directed verdict could have been properly granted, then the subsequent motion for judgment notwithstanding the verdict should also be granted.\u201d Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 337 (1985) (emphasis added). However, our Supreme Court has also held that \u201ca motion for judgment notwithstanding the verdict is cautiously and sparingly granted.\u201d Id.\nThis case is effectively still a processioning proceeding, the \u201cprimary purpose of which is to establish the correct location of the disputed dividing line.\u201d Sipe v. Blankenship, 37 N.C. App. 499, 503, 246 S.E.2d 527, 530 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 470 (1979). This Court has held that \u201c[a] directed verdict is never proper when the question is for the jury, and in processioning proceedings the determination of the boundary is for the jury.\u201d Beal v. Dellinger, 38 N.C. App. 732, 734, 248 S.E.2d 775, 776 (1978) (emphasis added).\nIn a processioning proceeding, the trial judge determines \u201cwhat\u201d the line is \u201cas a matter of law\u201d and then leaves to the jury \u201cwhere these lines are located on the earth\u2019s surface.\u201d Pruden v. Keemer, 262 N.C. 212, 218, 136 S.E.2d 604, 608 (1964). Furthermore, \u201c[i]t is the province of the jury to locate the line. It is for them to say, on the conflicting testimony and under the instructions of the court, where the line is.\u201d Cornelison v. Hammond, 225 N.C. 535, 536, 35 S.E.2d 633, 634 (1945) (emphasis added). The Nichols/Perrys\u2019 own Request for Jury Charge provided the jury with both the Cauley and Manning maps as options for determining where the line could be drawn. It was wholly within the province of the jury to choose the Manning map. Therefore, a judgment notwithstanding the verdict, which is, after all, merely a renewal of the earlier motion for directed verdict, is improper in a processioning proceeding and in this case.\nBecause of our determinations on the assignments of error discussed above, we need not address the Wilsons\u2019 remaining assignments of error. Accordingly, we reverse the trial court\u2019s entry of judgment notwithstanding the verdict and remand this case to the trial court for reinstatement of the jury verdict.\nReversed and remanded.\nJudges COZORT and GREENE concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Connor, Bunn, Rogerson & Woodard, P.A., by David M. Connor; and Narron, Holdford, Babb, Harrison & Rhodes, P.A., by C. David Williams, for plaintiff-appellees (the Nichols and Perrys).", "Lee, Reece & Weaver, by Cyrus F. Lee and Rachel V. Lee, for defendant-appellants (the Wilsons)." ], "corrections": "", "head_matter": "LAWTON E. NICHOLS and wife, ZILPHIA MARIE HIGH NICHOLS, GLENWOOD H. PERRY and wife, JEAN F. PERRY, Plaintiffs v. SANFORD EARL WILSON and wife, AGNES WILSON, Defendants SANFORD EARL WILSON and wife, AGNES WILSON, Plaintiffs v. LAWTON E. NICHOLS and wife, ZILPHIA MARIE HIGH NICHOLS, GLENWOOD H. PERRY and wife, JEAN F. PERRY, Defendants\nNo. 937SC391\n(Filed 6 September 1994)\n1. Easements \u00a7 30 (NCI4th)\u2014 prescriptive easement\u2014 adverse use \u2014 inadequate evidence\nThe trial court did not err by granting a directed verdict on the issue of a prescriptive easement on a cartway claim where defendants Wilson, who were asserting the cartway claim as a part of a larger processioning proceeding, presented no evidence to rebut the presumption that any past use of the cartway was permissive; the testimony of a witness indicated that the owner of the property at the time the cartway was in use actually agreed to let people use the path; there was no evidence presented by the Wilsons to show that the cartway was used under a claim of right other than by the owners; and the Wilsons did not engage in upkeep and indicated that they had used the cartway with the permission of the owners and not because they thought they had a right to use it.\nAm Jur 2d, Easements and Licenses \u00a7\u00a7 51, 52.\n2. Boundaries \u00a7 25 (NCI4th)\u2014 processioning \u2014 location of boundary \u2014 court\u2019s determination of survey to be used\nThere was no prejudice in a processioning proceeding where the trial court had earlier granted a motion for summary judgment on the issue of the legal determination of the boundary line, effectively directing that the jury base its determination of the location of the boundary line upon the Cauley map submitted by plaintiffs Nichols, but included both the Cauley map and the Manning map, submitted by defendants Wilson, as options for the jury. As the summary judgment order was not applied to the jury instructions, and the jury chose the Manning map, there was no prejudice to the Wilsons. The Nichols did not cross-assign as error the trial judge\u2019s failure to follow the summary judgment order.\nAm Jur 2d, Boundaries \u00a7 100.\n3. Boundaries \u00a7 33 (NCI4th)\u2014 processioning proceeding\u2014 j .n.o.v. \u2014 improper\nA judgment notwithstanding the verdict, which is merely a renewal of the earlier motion for a directed verdict, is improper in a processioning proceeding. The trial judge in a processioning proceeding determines what the line is as a matter of law and then leaves to the jury where the lines are located on the earth\u2019s surface. The jury here was provided with maps from both parties and it was wholly within the jury\u2019s province to choose the Manning map.\nAm Jur 2d, Boundaries \u00a7\u00a7 117, 118.\nAppeal by defendants (the Wilsons) from judgment entered 20 October 1992 by Judge W. Russell Duke, Jr. in Wilson County Superi- or Court. Heard in the Court of Appeals 2 February 1994.\nOn 17 August 1984, Lawton E. Nichols (\u201cNichols\u201d) filed a petition for a processioning proceeding under N.C.G.S. \u00a7 38(1), naming Sanford Earl and Agnes Wilson (\u201cWilsons\u201d) as defendants, to determine the boundary line between contiguous property owned by the parties. N.C. Gen. Stat. \u00a7 38(1) (1984). The lines that Nichols sought to have adjudged as the boundary for the parties\u2019 property were later depicted in a survey map drawn by J. Charles Cauley (\u201cthe Cauley survey\u201d), and based upon the description contained in the deed for their property. The petition further alleged that the Wilsons had trespassed on lands claimed by Nichols.\nOn 14 September 1984, the Wilsons filed their answer to Nichols\u2019s petition in which they denied Nichols\u2019s allegation of trespass and sought that the boundary lines be adjudged as represented in a survey map drawn by J.C. Manning (\u201cthe Manning survey\u201d) in 1983 and based upon the deed from which the Wilsons claim title. On 2 July 1985, the Clerk of Superior Court appointed Preston Lane, Registered Land Surveyor, as surveyor in the proceeding. Lane surveyed the area, made a map and filed his report with the court. On 23 February 1988, pursuant to a joint motion of the parties, the trial court entered an order allowing Glenwood H. and Jean F. Perry to join as petitioners to the processioning proceeding, and allowing all parties to file amended pleadings which would supersede all prior pleadings.\nOn 8 August 1988, the Wilsons initiated a separate action against Nichols, his wife Zilphia Marie High Nichols, Sarah A. Perry and the Perrys, asserting claims for: 1) quiet title.pursuant to N.C.G.S. \u00a7 41-10; 2) forcible trespass against defendant Glenwood H. Perry; and 3) declaration of a right to the public use of a cart-way or a neighborhood road in the location shown on the Manning map. For the sake of convenience and clarity, the parties will be referred to hereinafter as \u201cthe Nichols/Perrys\u201d and \u201cthe Wilsons.\u201d On 17 August 1988, the Wilsons filed a Notice of Dismissal pursuant to Rule 41 of the North Carolina Rules of Civil Procedure, dismissing Sarah A. Perry from the case.\nOn 13 October 1988, the Wilsons sought consolidation of the processioning proceeding with the civil action filed by the Wilsons, and on 14 December 1988, the Clerk of Superior Court ordered the processioning proceeding transferred to the civil docket of the Superior Court for trial by jury on all issues raised by the pleadings. On 30 June 1989, the trial court granted the Nichols/Perrys\u2019 motion for summary judgment on the issue of the legal determination of the boundary line, ordering that \u201cthe boundary line between the parties is the high water mark of the pond referred to in the pleadings as it existed in June, 1948,\u201d effectively directing that the jury base its determination of the location of the boundary line upon the Cauley map. The Wilsons immediately appealed the order to this Court in case No. 897SC1071, which dismissed the appeal as interlocutory on 17 July 1990.\nThe consolidated cases first came to trial before Judge G.K. Butterfield, Jr. at the 24 February 1992 civil term; after the jury reached a verdict, the trial court ordered a new trial on all issues on 19 June 1992. The cases once again came to trial and a jury was empaneled, at the 31 August 1992 civil session, before Judge W. Russell Duke, Jr. On 9 September 1992, following a full jury trial, arguments of counsel and instructions from the trial court, the jury answered all issues submitted to them in favor of the Wilsons. The Nichols/Perrys then moved for judgment notwithstanding the verdict pursuant to Rule 50 of the North Carolina Rules of Civil Procedure, and the trial court entered judgment n.o.v. on 22 October 1992. On 2 November 1992, the trial court denied the following motions by the Wilsons: 1) Motion to Alter or Amend Judgment; 2) Motion for Relief from Judgment of the Trial Court; and 3) Motion for Entry of Judgment. The Wilsons appeal from the judgment entered by the trial court.\nConnor, Bunn, Rogerson & Woodard, P.A., by David M. Connor; and Narron, Holdford, Babb, Harrison & Rhodes, P.A., by C. David Williams, for plaintiff-appellees (the Nichols and Perrys).\nLee, Reece & Weaver, by Cyrus F. Lee and Rachel V. Lee, for defendant-appellants (the Wilsons)." }, "file_name": "0286-01", "first_page_order": 316, "last_page_order": 323 }