{ "id": 8376055, "name": "THOMAS G. POTTLE and wife, MARY E. POTTLE; and SNUG HARBOR SOUTH, LLC, Plaintiffs v. CHARLES DAVID LINK and GENE WILLETS, Defendants", "name_abbreviation": "Pottle v. Link", "decision_date": "2007-12-18", "docket_number": "No. COA07-359", "first_page": "746", "last_page": "752", "citations": [ { "type": "official", "cite": "187 N.C. App. 746" } ], "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": "346 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 378", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358968 ], "year": 1986, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0378-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "311 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "301" }, { "page": "301" }, { "page": "384" }, { "page": "301-02" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525117 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0379-01" ] }, { "cite": "79 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696368 ], "year": 1878, "pin_cites": [ { "page": "543", "parenthetical": "stating that \"[i]f the right of way is claimed as an incorporeal hereditament . . . then six years is the statute [of limitations]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/79/0539-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-50", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "527 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155672 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0433-01" ] }, { "cite": "518 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1999, "pin_cites": [ { "page": "567" }, { "page": "567" }, { "page": "567" }, { "page": "650" }, { "page": "567" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 645", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11146875 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "649" }, { "page": "650" }, { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0645-01" ] }, { "cite": "259 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "593", "parenthetical": "citations omitted" }, { "page": "593" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 436", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552504 ], "year": 1979, "pin_cites": [ { "page": "440", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0436-01" ] }, { "cite": "192 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "453", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "282 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564243 ], "year": 1972, "pin_cites": [ { "page": "266", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0261-01" ] }, { "cite": "127 S.E. 697", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1925, "pin_cites": [ { "page": "701", "parenthetical": "internal quotation marks omitted" }, { "page": "701", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "189 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654716 ], "weight": 2, "year": 1925, "pin_cites": [ { "page": "598", "parenthetical": "internal quotation marks omitted" }, { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/189/0589-01" ] }, { "cite": "329 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "353" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725743 ], "year": 1985, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0488-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-40", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "493 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "286-87", "parenthetical": "citation omitted" }, { "page": "287" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 739", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11800450 ], "year": 1997, "pin_cites": [ { "page": "740", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0739-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-60", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 751, "char_count": 15591, "ocr_confidence": 0.766, "pagerank": { "raw": 1.0482681451391714e-07, "percentile": 0.5530241338394632 }, "sha256": "f4032432dcd515d83ebd2796d1ddd1ec37decdb0fc2c74aa7088dc8fa71498e4", "simhash": "1:ac3c5efa00694c12", "word_count": 2478 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEPHENS concur." ], "parties": [ "THOMAS G. POTTLE and wife, MARY E. POTTLE; and SNUG HARBOR SOUTH, LLC, Plaintiffs v. CHARLES DAVID LINK and GENE WILLETS, Defendants" ], "opinions": [ { "text": "ARROWOOD, Judge.\nThomas G. Pottle and his wife, Mary E. Pottle, own Tract 6 of Cedar Island, in New Hanover County, North Carolina, and Snug Harbor South, LLC, a North Carolina limited liability company, owns Tract 4 of Cedar Island (together, Plaintiffs). Plaintiffs\u2019 Tract 6 and Tract 4 are adjoining properties on Cedar Island, and both are the owners of two easements, allegedly thirty feet in width, which allow ingress to and egress from the public road to Tracts 6 and 4 and other lots comprising Cedar Island. Charles D. Link (Defendant Link) owns Tract 3 on Cedar Island, and Gene Willets (Defendant Willets) owns Tract 5, which are properties adjacent to Plaintiffs\u2019 properties and are the servient lots over which the aforementioned thirty-foot easements run.\nIn the summer of 1994, approximately eleven years before the commencement of Plaintiffs\u2019 action, Defendant Link planted several oak, cypress, holly, and cedar trees on Tract 3. In autumn of 1996, Defendant Link planted two additional oak trees, replacing two trees that had been destroyed by hurricanes. Thereafter, Defendant Link maintained the trees by installing an irrigation drip line and planting other vegetation on Tract 3. In the summer of 2004, Defendant Willets installed a post and rope fence on Tract 5, and in 2005, Defendant Link also constructed a fence on Tract 3. Plaintiffs alleged that all of the aforementioned landscaping encroached onto their thirty-foot easement.\nPlaintiffs initially filed a complaint on 8 February 2005, and Defendant Link filed motions and an answer on 13 April 2005. Plaintiffs then filed an amended complaint on 8 September 2005, adding Defendant Willets, and alleging that \u201c[t]rees, shrubs, and other vegetation have grown up on [Defendant Link\u2019s] property . . . within and over the thirty foot easement area[,]\u201d which \u201cimpede vehicular traffic, especially large vehicles such as delivery trucks, moving vans, and emergency vehicles.\u201d Plaintiffs further alleged that Defendant Willets \u201cplaced a post and rope fence on the property .. . lying within and over the thirty foot easement area[.]\u201d The amended complaint states that the encroachments interfered with Plaintiffs\u2019 right to the full use and enjoyment of the easement, and Plaintiffs prayed that the court order a preliminary and permanent injunction prohibiting Defendants from obstructing or interfering with Plaintiffs\u2019 right to the thirty-foot easement.\nDefendant Link filed motions and an answer to Plaintiffs\u2019 amended complaint on 29 November 2005. Defendant Willets filed motions and an answer on 27 March 2006.\nOn 24 July 2006, Plaintiffs filed a Rule 56 motion for summary judgment, arguing that \u201cthere are no genuine issues of material fact... and that Plaintiffs are entitled to judgment as a matter of law on all claims.\u201d Plaintiffs provided the affidavits of Joseph M. James, M.D. (James), Plaintiff Thomas Pottle, and Stuart Y. Benson to support their motion. James, a resident of Cedar Island, stated in his affidavit that the Snug Harbor South, LLC, deed conveyed the property with a right of ingress and egress over two thirty-foot roadway easements, \u201c[t]he purpose [being] ... to provide [access] from the public road to the property owners within Cedar Island.\u201d James stated, \u201c[t]here is no other overland route by which I can access my house[,]... absent the [e]asements.\u201d When James began construction of his house, \u201c[he] discussed with . . . Defendant [Link], the need to clear trees, shrubs and other vegetation from the [e]asements.\u201d James stated that he made attempts to remove the trees and encroachments by hiring contractors at his own expense, but Defendant Link consistently refused and \u201cphysically interposed himself and interfered with all attempts ... to clear the [e]asements[.]\u201d James further stated that \u201cDefendant [Willets] . . . maintains and continues to erect post and rope fencing around his property and within the [e]asements[,]\u201d and that James made similar attempts to remove the post and rope fencing, which Defendant Willets consistently refused. James said the encroachments make the right-of-way narrow and \u201ccreate a low overhanging obstruction so as to prevent access to [his] house by any large vehicles[.]\u201d\nDefendants moved for summary judgment on 26 July 2006, and at the 10 August 2006 hearing, Defendants argued that the applicable statute of limitations for injuries to incorporeal hereditaments, N.C. Gen. Stat. \u00a7 1-60(3), had expired, and secondarily that Plaintiffs\u2019 actions constituted an abandonment of the easement. Defendants also supported their motion with the affidavits of Defendant Willet, Defendant Link and R.K. Goodyear. In addition, Defendants filed a motion to dismiss on 26 July 2006, arguing that Plaintiffs \u201cfail[ed] to join all necessary and proper parties.\u201d\nOn 21 August 2006, the court entered an order granting Plaintiffs\u2019 motion for summary judgment and denying Defendants\u2019 motions for summary judgment and dismissal. From this order, Defendants appeal.\nSummary Judgment\nA motion for summary judgment should be granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). Therefore, \u201c[a]ppellate review of the grant of summary judgment is limited to two questions, including: (1) whether there is a genuine question of material fact, and (2) whether the moving party is entitled to judgment as a matter of law.\u201d Wooten v. Town of Topsail Beach, 127 N.C. App. 739, 740, 493 S.E.2d 285, 286-87 (1997) (citation omitted). \u201cEvidence is viewed in the light most favorable to the non-moving party with all reasonable inferences drawn in favor of the non-movant.\u201d Id. at 741, 493 S.E.2d at 287.\nOn appeal, Defendants argue that the trial court committed reversible error by granting Plaintiffs\u2019 motion for summary judgment because Plaintiffs\u2019 claims are time-barred by application of the statute of.limitations \u201c[f]or injury to any incorporeal hereditament\u201d under N.C. Gen. Stat. \u00a7 l-50(a)(3) (2005). Plaintiffs argue that their claims are governed by the twenty-year adverse possession statute of limitations, N.C. Gen. Stat. \u00a7 1-40 (2005).\n\u201cOrdinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact.\u201d Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). \u201cHowever, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate.\u201d Id. (citations omitted). Here, the relevant facts are not disputed. The parties agree that all encroachments, except the fences installed in 2004 and 2005, were planted or installed approximately nine to eleven years before the commencement of Plaintiffs\u2019 action. The only question is which statute of limitations applies, and that is a question of law.\n\u201cEasements are classified as affirmative or negative.\u201d Davis v. Robinson, 189 N.C. 589, 598, 127 S.E. 697, 701 (1925) (internal quotation marks omitted). An affirmative easement \u201cis a right to make some use of land owned by another without taking a part thereof.\u201d Builders Supplies Co. v. Gainey, 282 N.C. 261, 266, 192 S.E.2d 449, 453 (1972) (citations omitted). A negative easement prohibits \u201cthe owner of a servient estate ... from doing something otherwise lawful upon his estate, because it will affect the dominant estate.\u201d Davis, 189 N.C. at 598, 127 S.E. at 701 (internal quotation marks omitted). \u201cA restrictive covenant is a servitude, commonly referred to as a negative easement[.]\u201d Hawthorne v. Realty Syndicate, Inc., 43 N.C. App. 436, 440, 259 S.E.2d 591, 593 (1979) (citations omitted). Both a restrictive covenant and an easement are incorporeal hereditaments. Id. at 440, 259 S.E.2d at 593.\nThis Court has adopted the following definition of the term \u201cincorporeal hereditament,\u201d which \u201cderives from English law\u201d:\nAnything, the subject of property, which is inheritable and not tangible or visible. A right issuing out of a thing corporate (whether real or personal) or concerning or annexed to or exercisable within the same. A right growing out of, or concerning, or annexed to, a corporeal thing, but not the substance of the thing itself.\nKarner v. Roy White Flowers, Inc., 134 N.C. App. 645, 649, 518 S.E.2d 563, 567 (1999), rev\u2019d on other grounds, 351 N.C. 433, 527 S.E.2d 40 (2000), (citing Black\u2019s Law Dictionary 726 (6th ed. 1990)). The 8th edition of Black\u2019s Law Dictionary defines \u201cincorporeal hereditament\u201d as \u201c[a]n intangible right in land, such as an easement.\u201d Black\u2019s Law Dictionary 743 (8th ed. 2004).\nN.C. Gen. Stat. \u00a7 1-50(3) (2005) requires that an action for injury to any incorporeal hereditament be brought within six years. See also Boyden v. Achenbach, 79 N.C. 539, 543 (1878) (stating that \u201c[i]f the right of way is claimed as an incorporeal hereditament . . . then six years is the statute [of limitations]\u201d).\nPlaintiffs rely on Karner, 134 N.C. App. 645, 518 S.E.2d 563, and Bishop v. Reinhold, 66 N.C. App. 379, 311 S.E.2d 298 (1984), for their argument that even though easements are incorporeal hereditaments, the six-year statute of limitations under G.S. \u00a7 1-50(3) does not apply in this case. Plaintiffs contend that the injury here is similar to an adverse possession, having a limitation period of twenty years under G.S. \u00a7 1-40, and that their \u201cclaim for relief [is] . . . not barred \u2018until defendants [have] been in continuous use [of the easement] for a period of twenty years so as to acquire the right by prescription.\u2019 \u201d Karner, 134 N.C. App. at 650, 518 S.E.2d at 567 (quoting Bishop, 66 N.C. App. At 384, 311 S.E.2d at 301).\nIn Bishop, notwithstanding the three-year statute of limitations for a continuing trespass, see N.C. Gen. Stat. \u00a7 1-52(3) (2005), this Court held that any action to remove the defendants\u2019 structure, which partially encroached onto Bishops\u2019 property, \u201cwould not be barred until defendants had been in continuous use thereof for a period of twenty years[.]\u201d Bishop, 66 N.C. App. at 384, 311 S.E.2d at 301. The Court in Bishop explained:\nTo deny plaintiffs a right of action . . . would be to allow the defendants a right of eminent domain as private persons (and without the payment of just compensation) or grant defendants a permanent prescriptive easement to use the plaintiffs\u2019 land. This the law will not do, as the defendants have not been in possession for 20 years from 1973, the date the house was constructed.\nId. at 384, 311 S.E.2d at 301-02.\nSimilarly, in Williams v. South & South Rentals, 82 N.C. App. 378, 382, 346 S.E.2d 665, 667 (1986), an apartment building encroached approximately one square foot onto the plaintiff\u2019s property. The Court in Williams said, \u201c[w]hile the action sounds in trespass because there is no dispute over title or location of the boundary line, plaintiff seeks a perm\u00e1nent remedy and is subject to the twenty-year statute of limitations for adverse possession.\u201d\nWe conclude that Bishop and Williams, are distinguishable from the instant case. In both Bishop and Williams, the defendants\u2019 continuous trespass encroached onto plaintiffs\u2019 property held in fee, not plaintiffs\u2019 incorporeal hereditament.\nFurthermore, in Karner, this Court rejected a similar argument and ruled that G.S. \u00a7 1-50(a)(3), the statute of limitations for injury to an incorporeal hereditament, was applicable to restrictive covenants. In Earner, the defendants intended to construct a commercial building in a neighborhood developed as a residential subdivision, and the plaintiffs, lot owners in the neighborhood, filed a complaint to enjoin defendants from erecting the structure. Defendants answered with the defense that the statute of limitations for injury to an incorporeal hereditament, G.S. \u00a7 1-50(a)(3), had expired. Plaintiffs then argued that the \u201ccorrect statute of limitation . . . [was] the \u2018prescriptive period\u2019 of twenty years.\u201d Karner, 134 N.C. App. at 649, 518 S.E.2d at 567. The Court distinguished Bishop, stating that \u201ca residential restrictive covenant is at issue rather than [a] . . . prescriptive easement [to property held in fee].\u201d Id. at 650, 518 S.E.2d at 567. Therefore, G.S. \u00a7 1-50(a)(3) was the applicable statute of limitations.\nHere, we find the logic of karner persuasive. Because an injury to an incorporeal hereditament is at issue, rather than a continuous trespass or a prescriptive easement to property held in fee, as in Bishop and Williams, we conclude that G.S. \u00a7 1-50(a)(3) is the applicable statute of limitations, and Plaintiffs\u2019 case is barred if the six year statute of limitations is satisfied.\nThe parties agree that all but two encroachments onto Plaintiffs\u2019 easement began approximately nine to eleven years before the commencement of Plaintiffs\u2019 action. Defendants were therefore entitled to partial summary judgment as a matter of law, and the trial court erred in granting summary judgment to Plaintiffs.\nDefendants admit, however, that \u201cDefendant Link\u2019s fence and Defendant Willets\u2019 fence have not been in place for more than six years [,]\u201d and the parties contest whether \u201cthese fences [actually encroach] into . . . Plaintiffs\u2019 easement.\u201d Defendants contend that the fences do not encroach, but Plaintiffs disagree and submitted as evidence the affidavit of Stuart Y. Benson, a professional land surveyor, which stated that \u201c[t]he Survey shows a post and rope fence within the Easements around the perimeter of the Willets Lot.\u201d Furthermore, the affidavit stated, \u201c[an] additional post and rope fenc[e] [was] erected within the Easements on the Link Lot.\u201d The record therefore reveals a genuine issue of material fact, such that summary judgment should be denied and the issue preserved for the jury as to whether Defendants\u2019 fences encroached onto Plaintiffs\u2019 easement.\nThe trial court erred by granting summary judgment in Plaintiffs\u2019 favor. We therefore reverse and remand for entry of summary judgment for Defendants on all issues for which the statute of limitations has expired, noting that this does not include the 2004 and 2005 installation of fences.\nReversed and Remanded.\nJudges CALABRIA and STEPHENS concur.", "type": "majority", "author": "ARROWOOD, Judge." } ], "attorneys": [ "Ward and Smith, P.A., by Ryal W. Tayloe, for Plaintiffs-Appellees.", "Smith Moore LLP, by Sidney S. Eagles, Jr. and Elizabeth Brooks Scherer; and Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady Richardson, Jr., for Defendants-Appellants." ], "corrections": "", "head_matter": "THOMAS G. POTTLE and wife, MARY E. POTTLE; and SNUG HARBOR SOUTH, LLC, Plaintiffs v. CHARLES DAVID LINK and GENE WILLETS, Defendants\nNo. COA07-359\n(Filed 18 December 2007)\nEasements\u2014 statute of limitations \u2014 injury to incorporeal hereditament\nA dispute which alleged obstructions on easements providing access to lots involved an injury to an incorporeal hereditament rather than a continuous trespass or a prescriptive easement to property held in fee, and the six-year statute of limitations of N.C.G.S. \u00a7 l-50(a)(3) is applicable. Two of the alleged encroachments did not violate the limitations period but involved an issue of fact as to whether actual encroachment occurred. Those issues were preserved for the jury; the remainder were remanded for entry of summary judgment for defendants.\nAppeal by Defendants from order entered 21 August 2006 by Judge Benjamin G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 17 October 2007.\nWard and Smith, P.A., by Ryal W. Tayloe, for Plaintiffs-Appellees.\nSmith Moore LLP, by Sidney S. Eagles, Jr. and Elizabeth Brooks Scherer; and Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady Richardson, Jr., for Defendants-Appellants." }, "file_name": "0746-01", "first_page_order": 776, "last_page_order": 782 }