{ "id": 8378473, "name": "LAURA M. KOENIG, TRUSTEE, and SALVATORE P. RUSSO, Trustee, Plaintiffs v. TOWN OF KURE BEACH, Defendant, and JOHN J. McCABE; DOUGLAS YORK; JETTIE PAYNE; GENE BOWERS; and ROBERT and PAMELA FINLEY, Intervenors", "name_abbreviation": "Koenig v. Town of Kure Beach", "decision_date": "2006-07-18", "docket_number": "No. COA05-653", "first_page": "500", "last_page": "509", "citations": [ { "type": "official", "cite": "178 N.C. App. 500" } ], "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": "604 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631969 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/604/0309-01" ] }, { "cite": "623 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634715 ], "year": 2006, "pin_cites": [ { "page": "619", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0617-01" ] }, { "cite": "44 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "36", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "227 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626987 ], "year": 1947, "pin_cites": [ { "page": "643", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0642-01" ] }, { "cite": "404 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "684" }, { "page": "685-86" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "329 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556664 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0037-01" ] }, { "cite": "269 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561018 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0001-01" ] }, { "cite": "261 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552165 ], "year": 1979, "pin_cites": [ { "page": "269-70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0268-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-57", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "796" } ], "opinion_index": 0 }, { "cite": "345 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "410" }, { "page": "410" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524352 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "541" }, { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0531-01" ] }, { "cite": "361 S.E.2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "113" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358415 ], "year": 1987, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0374-01" ] }, { "cite": "189 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "281 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575351 ], "year": 1972, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0496-01" ] }, { "cite": "128 S.E. 329", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "pin_cites": [ { "page": "332" } ], "opinion_index": 0 }, { "cite": "189 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655271 ], "year": 1925, "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/nc/189/0805-01" ] }, { "cite": "600 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2004, "pin_cites": [ { "page": "511" }, { "page": "511" }, { "page": "511" }, { "page": "511" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000124 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "795" }, { "page": "795" }, { "page": "795" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0790-01" ] }, { "cite": "237 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "861", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e)" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548373 ], "year": 1977, "pin_cites": [ { "page": "278", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0275-01" ] }, { "cite": "201 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "284 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563409 ], "year": 1974, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0576-01" ] }, { "cite": "145 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "266 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560153 ], "year": 1966, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0257-01" ] }, { "cite": "304 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "260" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524342 ], "year": 1983, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0136-01" ] }, { "cite": "359 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796994, 3797285, 3796154, 3798285, 3804722, 3801273, 3803866, 3801309 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0067-06", "/nc/359/0067-07", "/nc/359/0067-08", "/nc/359/0067-01", "/nc/359/0067-03", "/nc/359/0067-04", "/nc/359/0067-02", "/nc/359/0067-05" ] }, { "cite": "353 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "227" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168855 ], "year": 1987, "pin_cites": [ { "page": "528-29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0527-01" ] }, { "cite": "598 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "pin_cites": [ { "page": "211" }, { "page": "211" }, { "page": "307" }, { "page": "211" }, { "page": "211" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8997157 ], "weight": 2, "pin_cites": [ { "page": "306-07" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0302-01" ] }, { "cite": "317 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "60", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526249 ], "year": 1984, "pin_cites": [ { "page": "333", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0331-01" ] }, { "cite": "175 N.C. App. 406", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352230 ], "year": 2006, "pin_cites": [ { "page": "408", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0406-01" ] }, { "cite": "557 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138403, 138376, 138473, 138511, 138363 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0371-02", "/nc/354/0371-04", "/nc/354/0371-05", "/nc/354/0371-01", "/nc/354/0371-03" ] }, { "cite": "261 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553797 ], "year": 1980, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0488-01" ] }, { "cite": "552 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11439446 ], "pin_cites": [ { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0700-01" ] } ], "analysis": { "cardinality": 894, "char_count": 23124, "ocr_confidence": 0.754, "pagerank": { "raw": 7.076930026999455e-08, "percentile": 0.42604259939479094 }, "sha256": "41e399dccc086e3b8a3509f5e9e4705d87eb7fad7c8a1ef05ea0657f95e4752c", "simhash": "1:0fcb54f81dffbec2", "word_count": 3811 }, "last_updated": "2023-07-14T17:18:34.747306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUNTER concur." ], "parties": [ "LAURA M. KOENIG, TRUSTEE, and SALVATORE P. RUSSO, Trustee, Plaintiffs v. TOWN OF KURE BEACH, Defendant, and JOHN J. McCABE; DOUGLAS YORK; JETTIE PAYNE; GENE BOWERS; and ROBERT and PAMELA FINLEY, Intervenors" ], "opinions": [ { "text": "JACKSON, Judge.\nIn 1995, Linda and Peter Russo purchased a parcel of land in Kure Beach, North Carolina. Plaintiffs in this case, Laura Koenig and Salvatore Russo (\u201cplaintiffs\u201d) are the trustees of the Linda A. Russo Qualified Personal Residence Trust and the Peter J. Russo Qualified Personal Residence Trust, and bring the instant action as trustees and owners of the Russos\u2019 property. The Russos\u2019 deed stated that they took the land \u201csubject to a public access easement 10 feet in width, running parallel to and along the northern boundary of the lot.\u201d The public access easement was a sand path crossing over the Russos\u2019 property and a beach dune, providing beach access for non-oceanfront property owners in the \u201cKure By the Sea\u201d development. In 1997, the Town of Kure Beach passed an ordinance prohibiting anyone from crossing over sand dunes to access the beach. In 1999, the Russos began construction of a house on their property, and in order to comply with the Town ordinance, they applied for and received a permit to construct a private walkway over the dunes to facilitate their access to the beach.\nIn April of 2003, the Town of Kure Beach announced its intention to construct a wood ramp and bridge over the public access easement, claiming that it had the authority to do so by virtue of language appearing in deeds of the Russos\u2019 predecessors in title and in the Russos\u2019 deed. Plaintiffs objected to the issuance of any permit to the Town for construction of the pedestrian beach access, however the Town was granted the permit on 12 May 2003. On 2 June 2003, plaintiffs filed a Third Party Hearing Request seeking a contested case hearing before the Coastal Resources Commission (\u201cCRC\u201d) on the issue of the permit granted to the Town. Plaintiffs\u2019 hearing request was denied by the CRC on 17 June 2003.\nOn 30 July 2003 plaintiffs filed a complaint seeking declaratory judgment and to quiet title in the public access easement. Plaintiffs alleged that neither the Town nor the public had any interest in the purported easement, as the purpose for which the beach access originally was created no longer existed due to a separate beach access being constructed for non-oceanfront property owners. Plaintiffs also alleged that the beach access was never conveyed or dedicated to the Town, and that no public entity, including the Town, ever had taken the requisite steps to accept any alleged offer of dedication of the beach access for use by the general public.\nOn 14 October 2003, John McCabe, Douglas York, Bill and Jettie Payne, Gene and Linda Bowers, and Robert and Pamela Finley (collectively \u201cintervenors\u201d) sought to intervene as defendants under Rule 24 of the North Carolina Rules of Civil Procedure. Intervenors alleged they had a prescriptive easement in the public access easement over plaintiffs\u2019 property, and that they also had a public prescriptive easement in the same public access easement. On 14 November 2003, the trial court allowed intervenors to intervene permissively pursuant to Rule 24(b) of our Rules of Civil Procedure. Intervenors Linda Bowers and Bill Payne\u2019s claims subsequently were dismissed with prejudice. Plaintiffs filed a motion to dismiss and for summary judgment on 22 October 2003, seeking summary judgment against all intervenors and to dismiss intervenors\u2019 claims based upon a lack of standing.\nIn an order filed 15 December 2004, the trial court granted summary judgment against the remaining intervenors finding there were no genuine issues of material fact, and that plaintiffs were entitled to judgment as a matter of law on intervenors\u2019 claims for a prescriptive easement over plaintiffs\u2019 property. The trial court also dismissed intervenors\u2019 claims based upon a lack of standing, finding that inter-venors did not suffer any special injury that was different in kind from that suffered by the general public. At a separate hearing, and in a separate order filed 7 January 2005, the trial court found that the Town of Kure Beach had not acquired any easement by dedication or otherwise in plaintiffs\u2019 property, and similarly had not acquired an interest in the property by any of the deeds in the Russos\u2019 chain of title. The trial court determined that the public access easement was not for the use or benefit of the Town of Kure Beach or the general public. Intervenors McCabe, York, Jettie Payne, Gene Bowers, and Robert and Pamela Finley appeal from the trial court\u2019s 15 December 2004 order. The Town of Kure Beach is not a party to the appeal.\nIntervenors first contend the trial court erred in granting plaintiffs\u2019 motion for summary judgment against all intervenors.\nIn ruling on a motion for summary judgment, the trial court must determine whether based on the pleadings, depositions, and answers to interrogatories, together with the affidavits, \u201c \u2018there exists any genuine issue of material fact.\u2019 \u201d Vincent v. CSX Transp., Inc., 145 N.C. App. 700, 702, 552 S.E.2d 643, 645 (quoting Lowe v. Murchison, 44 N.C. App. 488, 490, 261 S.E.2d 255, 256 (1980), citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)), disc. review denied, 354 N.C. 371, 557 S.E.2d 537 (2001). \u201cWhen a trial court rules on a motion for summary judgment, \u2018the evidence is viewed in the light most favorable to the non-moving party,\u2019 and all inferences of fact must be drawn against the movant and in favor of the nonmovant.\u201d Am. Gen. Fin. Servs. v. Barnes, 175 N.C. App. 406, 408, 623 S.E.2d 617, 619 (2006) (internal citations omitted). \u201c \u2018The burden upon the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined. . . . This burden may be carried by a movant by proving that an essential element of the opposing party\u2019s claim is nonexistent.\u2019 \u201d Gray v. Hager, 69 N.C. App. 331, 333, 317 S.E.2d 59, 60 (1984) (citation omitted).\nIn the instant case, the trial court granted plaintiffs\u2019 motion for summary judgment against intervenors on their claims for a prescriptive easement over plaintiff\u2019s property.\nIn order to establish the existence of a prescriptive easement, the party claiming the easement must prove four elements: \u201c \u2018(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 a period of at least twenty years; and (4) that there is substantial identity of the easement claimed throughout the twenty-year period.\u2019 \u201d\nCannon v. Day, 165 N.C. App. 302, 306-07, 598 S.E.2d 207, 211 (quoting Perry v. Williams, 84 N.C. App. 527, 528-29, 353 S.E.2d 226, 227 (1987)), disc. review denied, 359 N.C. 67, 604 S.E.2d 309 (2004). Mere use alone of a purported easement is not sufficient to establish the element of hostile use or use under a claim of right. Id. at 307, 598 S.E.2d at 211. Our state\u2019s caselaw presumes that one\u2019s use of another\u2019s land is permissive or with the owner\u2019s consent unless evidence to the contrary exists. Id. at 307, 598 S.E.2d at 211; see also Orange Grocery Co. v. CPHG Investors, 63 N.C. App. 136, 138, 304 S.E.2d 259, 260 (1983). \u201cA \u2018hostile\u2019 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 claim of right.\u201d Dulin v. Faires, 266 N.C. 257, 261, 145 S.E.2d 873, 875 (1966). \u201cA mere permissive use of a way over another\u2019s land, however long it may be continued, can never ripen into an easement by prescription.\u201d Dickinson v. Pake, 284 N.C. 576, 581, 201 S.E.2d 897, 900 (1974). Further, the adverse or hostile use must be for a continuous and uninterrupted period of at least twenty years. Cannon, 165 N.C. App. at 307, 598 S.E.2d at 211.\nIn the present case, intervenors\u2019 answer alleges they \u201chave utilized the access easement by claim of right for an extended period of time.\u201d This allegation alone is insufficient to establish that their use of the easement was hostile or by claim of right, or that their use was for a continuous and uninterrupted period of twenty years. A party against whom summary judgment is sought \u201cmay not rest upon the mere allegations or denials of his pleading, but must, by affidavit or otherwise, set forth specific facts showing that there is a genuine issue for trial.\u201d Enterprises v. Russell, 34 N.C. App. 275, 278, 237 S.E.2d 859, 861 (1977) (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e)).\nAlthough the record on appeal does not contain the complete depositions of the intervenors, those portions of the depositions included in the record are sufficient to support the trial court\u2019s granting of summary judgment against all intervenors. As noted previously, mere use is insufficient to show that use of an easement was hostile and without the owner\u2019s permission. Each of the intervenors testified during their depositions regarding their use of the purported easement. None of the intervenors testified that their use was without the owner\u2019s permission, or that they knew they were not entitled to use the lot for beach access. Instead, all of the intervenors, with the exception of McCabe, testified that they had never spoken with anyone about using plaintiffs\u2019 property for beach access, had never received specific permission to use it, nor had they received any deed or conveyance of any easement. Further, evidence was presented indicating that one of plaintiffs\u2019 predecessors in title had given consent for people to use the lot for beach access for a period of about nine months from roughly August 1988 until May 1989. Thus, without more, there was insufficient evidence to survive plaintiffs\u2019 motion for summary judgment, as there was no genuine issue of material fact that the intervenors\u2019 use of the purported easement was not hostile and was with the owner\u2019s permission.\nFurther, one\u2019s use of a purported prescriptive easement must be for a period of at least twenty years. Intervenors McCabe, Payne, York, and Finleys each testified in their depositions as to how long they had used plaintiffs\u2019 lot for beach access. None of them testified that they used the purported easement for a period of more than a few years, and in fact intervenors McCabe and Payne both testified that they had never used plaintiffs\u2019 lot for beach access. Thus, summary judgment against each of these intervenors also was proper in that there was no genuine issue of material fact concerning their term of use of the purported easement. Intervenors\u2019 assignment of error is overruled.\nIntervenors next contend the trial court erred in granting plaintiffs\u2019 motion for summary judgment against intervenor Bowers in that Bowers testified in his deposition, and stated in his affidavit, that he began using the beach access in 1971, thereby satisfying the twenty year use requirement. As we have held previously, however, that there was insufficient evidence to show that intervenors\u2019 use of the purported easement was without the owner\u2019s permission, and that the trial court\u2019s grant of summary judgment was proper, we need not address this issue, and intervenors\u2019 assignment of error is overruled.\nIntervenors also contend that the trial court\u2019s granting of summary judgment against intervenor Payne was improper due to the fact that Payne should have been able to tack her use with that of her predecessors in title, thereby satisfying the twenty year use requirement. As stated previously, Payne testified that she had never used the beach access, nor had she ever received a deed or written conveyance of the easement. Also, she testified that her predecessors in title never told her about any recorded easement granting her beach access. As the evidence was insufficient to show that Payne\u2019s purported use, or that of her predecessors in title was hostile or without the lot owner\u2019s permission, the trial court\u2019s granting of summary judgment against intervenor Payne was proper. This assignment of error also is overruled.\nIntervenors next assert the trial court erred in granting plaintiffs\u2019 motion to dismiss intervenors\u2019 claims based on the intervenors\u2019 lack of standing. Intervenors contend the trial court improperly reversed an earlier decision of the trial court which allowed intervenors to intervene permissively pursuant to Rule 24(b) of the North Carolina Rules of Civil Procedure.\nThis Court previously has addressed this issue, and we have held that the requirements for a party to have standing and for a party to be allowed to intervene permissively in an action are separate issues, which may result in seemingly contradictory results. See Bruggeman v. Meditrust Co., LLC, 165 N.C. App. 790, 600 S.E.2d 507 (2004). In North Carolina \u201c[t]he power of one judge of the Superior Court is equal to and coordinate with that of another.\u201d Caldwell v. Caldwell, 189 N.C. 805, 809, 128 S.E. 329, 332 (1925). Similarly, it also is well established in our state \u201cthat no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another\u2019s errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.\u201d Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). However, we may\n[uphold] a subsequent order issued by a different judge in the same action where the subsequent order was \u201crendered at a different stage of the proceeding,\u201d did not involve the same materials as those considered by the previous judge, and did not \u201cpresent the same question\u201d as that raised by. the previous order.\nBruggeman, 165 N.C. App. at 795, 600 S.E.2d at 511 (quoting Smithwick v. Crutchfield, 87 N.C. App. 374, 376, 361 S.E.2d 111, 113 (1987)).\nIn the present case, intervenors were permitted to intervene permissively into the original case involving plaintiffs and defendant Town of Kure Beach, pursuant to a 14 November 2003 order of Judge Russell J. Lanier, Jr. In order to be allowed to intervene permissively into a pending action, the potential intervenor\u2019s alleged claim or defense must have a question of law or fact in common with the pending action. N.C. Gen. Stat. \u00a7 1A-1, Rule 24(b)(2) (2003). However, in order for the intervenors then to have standing to assert their alleged claims, they must \u201c \u2018have been injured or threatened by injury or have a statutory right to institute an action.\u2019 \u201d Bruggeman, 165 N.C. App. at 795, 600 S.E.2d at 511 (quoting In re Baby Boy Scearce, 81 N.C. App. 531, 541, 345 S.E.2d 404, 410 (1986)); see also N.C. Gen. Stat. \u00a7 1-57 (2005). In ruling on a motion to intervene, a trial court may consider standing as a factor in whether or not to grant permissive intervention, but this factor may be considered only after all requirements for permissive intervention have been satisfied. Id. at 796, 600 S.E.2d at 511 (quoting 59 Am. Jur. 2d Parties \u00a7 207 (2003)). Rule 24(b)(2) does not require a permissive intervenor to show \u201ca direct personal or pecuniary interest in the subject of the litigation.\u201d Scearce, 81 N.C. App. at 541, 345 S.E.2d at 410.\nThe issue in determining whether a party has standing to bring an action boils down to \u201c \u2018whether there is a justiciable controversy being litigated amongst adverse parties with substantial interest affected[.]\u2019 \u201d Bruggeman, 165 N.C. App. at 795, 600 S.E.2d at 511 (quoting Texfi Industries v. City of Fayetteville, 44 N.C. App. 268, 269-70, 261 S.E.2d 21, 23 (1979), aff\u2019d, 301 N.C. 1, 269 S.E.2d 142 (1980)). Therefore, the order allowing intervenors to intervene permissively constituted a determination only that they had a common question of law or fact that was being litigated between plaintiff and defendant. Judge Hockenbury\u2019s 15 December 2004 order ruling that intervenors did not have standing to bring their remaining claims was independent of Judge Lanier\u2019s earlier ruling and determinations, and thus did not constitute a modification, change, or overruling of a prior order of another superior court judge. Therefore, intervenors assignment of error is overruled.\nFinally, intervenors argue the trial court erred in granting plaintiff\u2019s motion to dismiss intervenors\u2019 claims for lack of standing due to the fact that intervenors have alleged elements necessary to establish a public prescriptive easement pursuant to the holding in Concerned Citizens v. Holden Beach Enterprises, 329 N.C. 37, 404 S.E.2d 677 (1991). Intervenors contend they have asserted viable claims that they were using the public prescriptive easement under color of title, in that by working with the Town to attempt to construct a walkway over the beach dune, intervenors and the Town sought to improve and maintain the easement after plaintiff blocked the easement by constructing a home on the lot and beach access, and that they in no way abandoned their use of it.\nConcerned Citizens involved a group of citizens who sought to establish a prescriptive easement based on public use of a pathway crossing over the shifting dunes of an area on our state\u2019s Outer Banks. One of the primary issues considered by the Court concerned whether a purported easement could be substantially identified if it had moved and changed location over time due to the shifting of the dunes. Our Supreme Court ruled that the change in location due to the shifting dunes was not in and of itself sufficient to cause the plaintiffs\u2019 claim for a prescriptive easement to fail. Id. at 49, 404 S.E.2d at 684. In Concerned Citizens, the defendant sought to block the public\u2019s use of the pathway by constructing multiple barricades over a span of roughly twenty years. The Supreme Court found that as defendant\u2019s efforts to block public use increased, so did the public\u2019s acts of disregard of the barricades and continued use of the pathway. Id. at 49-51, 404 S.E.2d at 685-86. The Court found that the acts of the public in disregarding the various barricades clearly established \u201cthe use as being \u2018hostile,\u2019 thus repelling any inference that it is permissive, or that the use be \u2018open,\u2019 thus giving notice to the owner that the use is adverse.\u201d Id. at 51, 404 S.E.2d at 686.\nAlthough plaintiffs in the instant case did, in fact, have record notice of an easement granting a public access easement over their property, this easement ceased to exist once the Town passed the ordinance prohibiting sand paths over the beach dunes and plaintiffs began constructing an improvement on their property. Each of the intervenors who testified that they had used plaintiffs\u2019 property for beach access testified that they stopped using the beach access either when the Town passed the ordinance or when plaintiffs began construction on the property. As previously stated, intervenors did not present sufficient evidence or allegations that their use was hostile or without the owners\u2019 permission. Similarly, they did not present evidence showing that they continued to use the beach access even after the passage of the ordinance or the construction on the site, thus they did not satisfy the element of \u201chostile use\u201d present in Concerned Citizens. The instant case is distinguishable from that of Concerned Citizens, in that in the instant case there is other beach access available to the public in the same general area as the purported easement, whereas in Concerned Citizens the easement sought was the sole access to the portion of beach to which access was sought. Additionally, in Concerned Citizens, the easement was used by many people over a span of more than sixty years, even though the path had moved and changed location over time due to storms and beach erosion. In the instant case, however, the evidence presented through intervenors\u2019 depositions indicated that at most, only one of them had used plaintiffs\u2019 lot for beach access for anything close to the required twenty year period.\nAs stated previously, the trial court properly found that inter-venors lacked standing to bring their claims alleging a prescriptive easement over plaintiffs\u2019 property. Similarly, plaintiffs lack standing to bring their claim alleging a public prescriptive easement over the same property. \u201cIn the absence of statute and barring those instances where an individual may take action because of his special damage over and above that suffered by other members of the general public, \u2018[t]he State is the proper party to complain of wrongs done to its citizens.\u2019 \u201d McLean v. Townsend, 227 N.C. 642, 643, 44 S.E.2d 36, 36 (1947) (citation omitted). Intervenors admitted in their depositions that the purpose of their claims was to establish an easement for the public to use as beach access across plaintiff\u2019s property. However, intervenors have not alleged, nor have they established, that they suffered any special injury that differed from that suffered by the public generally.\nTherefore, we hold that the instant case is distinguishable from Concerned Citizens, and the trial court thus acted properly in granting plaintiffs\u2019 motion to dismiss intervenors\u2019 claim for a public prescriptive easement based on their lack of standing.\nAffirmed.\nJudges WYNN and HUNTER concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "William G. Wright and Gary K. Shipman, for plaintiff-appellees.", "Dillow, McEachem & Associates, P.A., by Mary Margaret McEachem, for intervenor-appellants." ], "corrections": "", "head_matter": "LAURA M. KOENIG, TRUSTEE, and SALVATORE P. RUSSO, Trustee, Plaintiffs v. TOWN OF KURE BEACH, Defendant, and JOHN J. McCABE; DOUGLAS YORK; JETTIE PAYNE; GENE BOWERS; and ROBERT and PAMELA FINLEY, Intervenors\nNo. COA05-653\n(Filed 18 July 2006)\nEasements\u2014 public prescriptive easement \u2014 lack of standing\nThe trial court did not err in a declaratory judgment action seeking to quiet title in a public access easement by granting plaintiffs\u2019 motion to dismiss intervenors\u2019 claim for a public prescriptive easement based on their lack of standing, because: (1) mere use is insufficient to show that use of an easement was hostile and without the owner\u2019s permission; (2) one\u2019s use of a purported prescriptive easement must be for a period of at least twenty years, and none of the intervenors testified that they used the puiported easement for a period of more than a few years; (3) a judge\u2019s 15 December 2004 order ruling that intervenors did not have standing to bring their remaining claims was independent of another judge\u2019s earlier ruling and determinations, and thus did not constitute a modification, change, or overruling of a prior order of another superior court judge; (4) although plaintiffs did have record notice of an easement granting a public access easement over their property, this easement ceased to exist once the town passed the ordinance prohibiting sand paths over the beach dunes and plaintiffs began constructing an improvement on their property; (5) there is other beach access available to the public in the same general area as the purported easement; and (6) inter-venors have not alleged, nor have they established, that they suffered any special injury that differed from that suffered by the public generally.\nAppeal by intervenors from an order ent\u00e9red 15 December 2004 by Judge Jay D. Hockenbury in New Hanover County Superior Court. Heard in the Court of Appeals 10 January 2006.\nWilliam G. Wright and Gary K. Shipman, for plaintiff-appellees.\nDillow, McEachem & Associates, P.A., by Mary Margaret McEachem, for intervenor-appellants." }, "file_name": "0500-01", "first_page_order": 532, "last_page_order": 541 }