{ "id": 8552619, "name": "ELLEN DICKINSON, JAMES LUPTON, CALLIE FERRIER, WILLIAM BAKER LUPTON, and ALLEN W. LUPTON v. CHARLES L. PAKE and wife, TOMMIE PAKE", "name_abbreviation": "Dickinson v. Pake", "decision_date": "1973-08-29", "docket_number": "No. 733DC528", "first_page": "287", "last_page": "291", "citations": [ { "type": "official", "cite": "19 N.C. App. 287" } ], "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": "78 S.E. 2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612960 ], "year": 1953, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0542-01" ] }, { "cite": "277 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564068, 8564045, 8564110, 8564087, 8564025 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0251-03", "/nc/277/0251-02", "/nc/277/0251-05", "/nc/277/0251-04", "/nc/277/0251-01" ] }, { "cite": "175 S.E. 2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548574 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0140-01" ] }, { "cite": "72 S.E. 2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "236 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624574 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/236/0253-01" ] }, { "cite": "29 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600394 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0289-01" ] }, { "cite": "75 S.E. 721", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1912, "opinion_index": 0 }, { "cite": "159 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659678 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/nc/159/0497-01" ] }, { "cite": "145 S.E. 2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "266 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560153 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/266/0257-01" ] }, { "cite": "103 S.E. 2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624420 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0462-01" ] }, { "cite": "133 S.E. 2", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "opinion_index": 0 }, { "cite": "191 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631385 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/nc/191/0747-01" ] }, { "cite": "77 S.E. 2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606858 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0301-01" ] } ], "analysis": { "cardinality": 539, "char_count": 9313, "ocr_confidence": 0.564, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7530798127612846 }, "sha256": "f41cfd551871bb3e889702ca0180741e5797b7412d61fe66dcfab6d932cc9559", "simhash": "1:c60efd62af6c27b1", "word_count": 1551 }, "last_updated": "2023-07-14T21:32:34.966448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Parker concur." ], "parties": [ "ELLEN DICKINSON, JAMES LUPTON, CALLIE FERRIER, WILLIAM BAKER LUPTON, and ALLEN W. LUPTON v. CHARLES L. PAKE and wife, TOMMIE PAKE" ], "opinions": [ { "text": "MORRIS, Judge.\nA \u201cparty claiming a right-of-way by prescription has the burden of proving the several elements essential to its acquisition.\u201d Williams v. Foreman, 238 N.C. 301, 77 S.E. 2d 499 (1953). As to the requirements for acquisition of easements by prescription, see generally Webster, Real Estate Law in North Carolina, \u00a7\u00a7 285-291. 3 Strong, N. C. Index 2d, Easements, \u00a7 4.\nOf those requirements, the following are well settled:\n(1) A claimant must show an adverse or hostile use. Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2 (1926). A mere permissive use of a way over another\u2019s land, however long it may be continued cannot ripen into an easement by prescription, and a permissive use is presumed until the contrary is made to appear. Nicholas v. Furniture Co., 248 N.C. 462, 103 S.E. 2d 837 (1958). To show that the use is hostile rather than permissive, it is not necessary to show there was a heated controversy, or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the servient estate. A hostile use is simply 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. Dulin v. Faires, 266 N.C. 257, 145 S.E. 2d 873 (1965).\n(2) The adverse or hostile use of land must be open and notorious. The use must be of such character that the true owner may have notice of the claim, and this may be proven by circumstances as well as by direct evidence. Dulin v. Faires, supra. Snowden v. Bell, 159 N.C. 497, 75 S.E. 721 (1912).\n(3) The adverse use of the land must be continuous and uninterrupted for a period of twenty years. Chesson v. Jordan, 224 N.C. 289, 29 S.E. 2d 906 (1944).\n(4) An easement by prescription niust have boundaries sufficiently definite to be located with reasonable certainty. Fremont v. Baker, 236 N.C. 253, 72 S.E. 2d 666 (1952).\nWith these principles in mind we examine plaintiffs\u2019 contention that their evidence was sufficient to withstand defendants\u2019 motion for judgment notwithstanding the verdict. Upon motion for judgment non obstante veredicto, under G.S. 1A-1, Rule 50(b) (1), all the evidence which supports plaintiffs\u2019 claim must be taken as true and considered in the light most favorable to plaintiffs, giving them the benefit of every reasonable inference which may legitimately be drawn therefrom, with contradictions, conflicts and inconsistencies being resolved in plaintiffs\u2019 favor. Horton v. Insurance Co., 9 N.C. App. 140, 175 S.E. 2d 725 (1970), cert. denied, 277 N.C. 251 (1970). Taking plaintiffs\u2019 evidence in this light, we are constrained to affirm the trial court\u2019s action. Plaintiffs\u2019 proof simply falls short of showing the requisite \u201chostility\u201d or \u201cadverseness\u201d for an easement by prescription.\nThe following was stated by the Supreme Court of North Carolina, per Justice Ervin, and is equally applicable to the evidence in the case sub judice:\n\u201cThe evidence does not suffice to show that the use of the roadway by the plaintiff and her tenants was accompanied by circumstances giving it an adverse character and rebutting the presumption that it was permissive. The circumstance that the owners of the soil did not object to the use of the way harmonizes with the theory that they permitted the use of the way. There is, moreover, no inconsistency between the circumstance that the plaintiff and her tenants used the way without asking the owners of the soil for permission to do so, and the conclusion that the plaintiff and her tenants used the way with the implied consent of the owners of the soil. When all is said, the assertion that the plaintiff and her tenants used the way without asking the permission of the1 owners of the soil is tantamount to the assertion that the plaintiff and her tenants used the way in silence. Neither law nor logic can confer upon a silent use a greater probative value than that inherent-in a mere use.\u201d Henry. v. Farlow, 238 N.C. 542, 544, 78 S.E. 2d 244 (1953).\nPlaintiffs have failed to rebut the presumption that use of the driveway by them and their mother was permissive and this assignment of error is overruled.\nPlaintiffs\u2019 other assignments of error have been carefully examined and are equally without merit. For the reasons stated above the judgment of the trial court in favor of defendants must be affirmed.\nAffirmed.\nJudges Campbell and Parker concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Taylor and Mar quart, by Nelson W. Taylor, for plaintiff appellants.", "Wheatly and Mason, by L. Patten Mason, for defendant ap-pellees." ], "corrections": "", "head_matter": "ELLEN DICKINSON, JAMES LUPTON, CALLIE FERRIER, WILLIAM BAKER LUPTON, and ALLEN W. LUPTON v. CHARLES L. PAKE and wife, TOMMIE PAKE\nNo. 733DC528\n(Filed 29 August 1973)\n1. Easements \u00a7 4 \u2014 easement by prescription \u2014 requirements to establish\nIn order to show acquisition of an easement by prescription a plaintiff must show that his use has been adverse or hostile, open, notorious and continuous, and the easement must have boundaries sufficiently definite to be located with reasonable certainty.\n2. Easements \u00a7 4 \u2014 permissive use of road \u2014 no easement by prescription\nTrial court properly granted defendant\u2019s motion for judgment n.o.v. in plaintiffs\u2019 action to enjoin defendants from obstructing a roadway over lands of defendants in which plaintiffs claimed a right-of-way by prescription where plaintiffs\u2019 evidence tended to show permissive use in that plaintiffs and their mother used the road for thirty years, family friends and persons who came on business used the road, no one ever gave plaintiffs permission to use the road and no one ever asked for such permission, male defendant and plaintiffs were first cousins and were \u201cvery close,\u201d and defendants had never interfered with plaintiffs\u2019 use of the road until 1968 when defendants blocked the road.\nAppeal by plaintiffs from Wheeler, Judge, 26 February 1973 Session of Carteret County District Court.\nPlaintiffs instituted this action in 1968 seeking permanently to enjoin defendants from obstructing a roadway over lands of defendants in which plaintiffs claim a right-of-way by prescription. At trial, the plaintiffs introduced evidence which in brief summary tended to show the following:\nPlaintiffs are the children of Sophia Lupton, now deceased. On 28 March 1938 Julia Pake conveyed to Sophia Lupton a tract of land lying next to Taylor\u2019s Creek in Carteret County. A house was mistakenly built on an adjoining tract and Sophia and four of her five children occupied the house in 1938. The property upon which the house was built was acquired by Sophia in 1960, but the actual location of the home place is immaterial to this case. In June 1938, Sophia and her children started using an existing driveway that led to the public road known as the Len-noxville Eoad. The driveway was unpaved and was defined \u201cmore or less as cart ruts,\u201d and ran from the tract purchased by Sophia in 1938 across the tract of land purchased by defendant Charles Pake on 16 March 1989. Charles Pake built a house on his land in 1940 and has lived there ever since. Sophia Lup-ton died in 1967.\nPlaintiff Ellen Dickinson, daughter of Sophia Lupton, testified that since 1988 until 1968, when this suit was filed, the driveway was in constant use by Sophia Lupton, the plaintiffs, and more recently by tenants of the plaintiffs. Mrs. Dickinson also stated that the road was used by family friends who came there to visit and by people who came there on business. Also, immediate family members and friends who docked their boats in Taylor\u2019s Creek used the road. No one ever gave them permission to do so, nor did anyone ever ask for permission. Plaintiffs and defendant Charles Pake were first cousins, and Mrs. Dickinson testified that they had always been \u201cvery close\u201d and had had no trouble until 1968 when defendants blocked the driveway. Prior to that time there had been no interference with plaintiffs\u2019 use of the driveway.\nFrom 1938 until the present the location of the driveway has remained basically unchanged. Some maintenance was done on the road by Sophia Lupton and plaintiffs during the period. Also defendants and people having business with them have used the portion of the driveway on defendants\u2019 land. Part of defendants\u2019 answer was read into evidence in which they admitted obstructing the road in order to bar any vehicular traffic on the driveway.\nDefendants offered no evidence, and the following issue was submitted to the jury:\n\u201cHave the plaintiffs acquired an easement over the lands of the defendants by prescriptive, adverse, hostile and non-permissive use of the same road as described in the complaint for a period of twenty (20) years next preceding the institution of this action?\u201d\nThe jury answered in the affirmative and judgment was entered awarding plaintiffs an easement by prescription over lands of defendants and permanently enjoining the defendants from interfering with the use of said easement by the plaintiffs.\nHowever, upon defendants\u2019 motion for judgment notwithstanding the verdict, the trial court ordered the judgment set aside and entered judgment for the defendants. In the alternative, the trial court granted defendants\u2019 motion for a new trial on the grounds that the verdict was contrary to law and contrary to the weight of the evidence. From this action of the trial court, plaintiffs appealed.\nTaylor and Mar quart, by Nelson W. Taylor, for plaintiff appellants.\nWheatly and Mason, by L. Patten Mason, for defendant ap-pellees." }, "file_name": "0287-01", "first_page_order": 311, "last_page_order": 315 }