{
  "id": 8552632,
  "name": "WADE H. POTTS; DON WAYNE POTTS, ARTHUR B. POTTS and MAVIS L. POTTS, TRUSTEES OF JOHN H. POTTS MEMORIAL CEMETERY; BOBBY E. McDANIEL and wife, BARBARA R. McDANIEL; DONALD R. McDANIEL and wife, NANCY M. McDANIEL; and FRED B. McDANIEL and wife, JOANN S. McDANIEL v. J. W. BURNETTE and wife, ESTELLE BURNETTE; JUDY LEE BURNETTE ROGERS and husband, ALEXANDER ROGERS; JAMES HENRY BURNETTE and wife, LORETTA BURNETTE; C. T. BURNETTE and wife, JUANITA BURNETTE; and DENNIS HALL BURNETTE",
  "name_abbreviation": "Potts v. Burnette",
  "decision_date": "1980-05-06",
  "docket_number": "No. 7930DC737",
  "first_page": "626",
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    "judges": [
      "Chief Judge MORRIS and Judge VAUGHN concur."
    ],
    "parties": [
      "WADE H. POTTS; DON WAYNE POTTS, ARTHUR B. POTTS and MAVIS L. POTTS, TRUSTEES OF JOHN H. POTTS MEMORIAL CEMETERY; BOBBY E. McDANIEL and wife, BARBARA R. McDANIEL; DONALD R. McDANIEL and wife, NANCY M. McDANIEL; and FRED B. McDANIEL and wife, JOANN S. McDANIEL v. J. W. BURNETTE and wife, ESTELLE BURNETTE; JUDY LEE BURNETTE ROGERS and husband, ALEXANDER ROGERS; JAMES HENRY BURNETTE and wife, LORETTA BURNETTE; C. T. BURNETTE and wife, JUANITA BURNETTE; and DENNIS HALL BURNETTE"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nThe development of the law of prescriptive easements in North Carolina is set out in Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974). In North Carolina, unlike the majority of other jurisdictions, we presume that the use of a way over another\u2019s land is permissive unless evidence appears to the contrary. Id. In the present controversy the sole issue is whether plaintiffs presented evidence sufficient to go to the jury that their use of the road over defendants\u2019 land was \u201cadverse, hostile, or under a claim of right.\u201d See id. at 580, 201 S.E. 2d 900.\nPlaintiffs presented substantial evidence that they have used the road in question for many years. However, \u201c[t]he mere use of a way over another\u2019s land cannot ripen into an easement by prescription, no matter how long it may be continued.\u201d Henry v. Farlow, 238 N.C. 542, 543, 78 S.E. 2d 244, 245 (1953), citing numerous cases. Plaintiffs presented much evidence that they have never asked permission to use the road, but neither in their brief nor on oral argument were plaintiffs able to point to any evidence that their use of the road has been other than with defendants\u2019 permission. When plaintiffs were widening the portion of the road that lies on their property, they asked defendants for permission to come onto defendants\u2019 land and widen the road. \u201cMr. Leonard Potts spoke to Mr. Wade Burnette and cleared it with him to bring the bulldozer in and widen the road . . . .\u201d Earlier, when the road was scraped, \u201cthey had to skip a certain space . . . because the Burnettes would not let them scrape that portion of the land.\u201d As for asking permission simply to travel the road, William Potts testified, \u201cThe reason I did not ask permission was that we thought it was a free country, not a bunch of hogs in there, and everybody was welcome to go where they wanted to.\u201d Leonard Potts testified, \u201cAs far back as I can remember ... I never asked him for permission to use the road. It\u2019s a free country up there. We don\u2019t ask people. We just, they come over me and I go over them. . . . [W]e all go over one another\u2019s land and never think nothing about it.\u201d As the court said in Henry v. Farlow, id. at 544, 78 S.E. 2d 245-46, \u201c[t]he 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 . . . used the way without asking the owners of the soil for permission to do so, and the conclusion that the plaintiff . . . used the way with the implied consent of the owners of the soil.\u201d Furthermore, \u201c[t]he law should, and does encourage acts of neighborly courtesy; a landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights. It is only when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the land owner is called upon \u2018to go to law\u2019 to protect his rights.\u201d Weaver v. Pitts, 191 N.C. 747, 749, 133 S.E. 2, 3 (1926).\nThe court in Dickinson v. Pake, supra, pointed out that in order to establish that a use is hostile, it is not necessary to show a heated controversy, but it is necessary to show that the use was of a nature that would give the owner of the land notice that the use was being made under a claim of right. We do not find that the use here is of such a nature as to give notice to defendants that is under a claim of right. Furthermore, the idea that plaintiffs used the road under a claim of right adverse to defendants\u2019 rights is negated by the testimony of Wade Potts: \u201cMy claim for the use of this . . . road at least prior to this action has been based on both my assumption that the State was maintaining it and that it was a State road and it was based on the fact that I have used the road so long that I think I should have the privilege to get to my property.\u201d\nWe find that plaintiffs\u2019 evidence was insufficient to show that their use of the road was hostile to defendants\u2019 interest or under a claim of right, and accordingly that the evidence was insufficient to go to the jury. Cf. Watkins v. Smith, 40 N.C. App. 506, 253 S.E. 2d 354 (1979); Coggins v. Fox, 34 N.C. App. 138, 237 S.E. 2d 332 (1977). Defendants were entitled to a directed verdict or a judgment notwithstanding the verdict. The judgment of the trial court is\nReversed.\nChief Judge MORRIS and Judge VAUGHN concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Rogers, Cabler and Henson, by J. Edwin Henson, for plaintiff appellees.",
      "Orr & Payne, by Robert F. Orr, for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "WADE H. POTTS; DON WAYNE POTTS, ARTHUR B. POTTS and MAVIS L. POTTS, TRUSTEES OF JOHN H. POTTS MEMORIAL CEMETERY; BOBBY E. McDANIEL and wife, BARBARA R. McDANIEL; DONALD R. McDANIEL and wife, NANCY M. McDANIEL; and FRED B. McDANIEL and wife, JOANN S. McDANIEL v. J. W. BURNETTE and wife, ESTELLE BURNETTE; JUDY LEE BURNETTE ROGERS and husband, ALEXANDER ROGERS; JAMES HENRY BURNETTE and wife, LORETTA BURNETTE; C. T. BURNETTE and wife, JUANITA BURNETTE; and DENNIS HALL BURNETTE\nNo. 7930DC737\n(Filed 6 May 1980)\nAdverse Possession 8 25.2\u2014 road across defendant\u2019s land \u2014 insufficient evidence of hostile use\nPlaintiffs\u2019 evidence was insufficient to show that their use of a road across defendants\u2019 land was hostile to defendants\u2019 interest or under a claim of right where such evidence tended to show that plaintiffs had used the road in question for many years; plaintiffs never asked permission to use the road; but plaintiffs never presented any evidence that their use of the road had been other than with defendants\u2019 permission.\nAPPEAL by defendants from Leatherwood, Judge. Judgment entered 16 April 1979 in District Court, JACKSON County. Heard in the Court of Appeals 27 February 1980.\nPlaintiffs allege that for more than 50 years they and their predecessors in title had made open, notorious, hostile, adverse and continuous use of a road which leads from State Road 1149 across defendant\u2019s land to plaintiff\u2019s property. They seek to have defendants enjoined from denying them the use of the road, and to have a permanent easement declared in their favor.\nAt trial plaintiffs presented evidence, after which defendants moved for a directed verdict, which was denied. Defendants offered no evidence. The jury found for plaintiffs, and defendants\u2019 motions for judgment notwithstanding the verdict and new trial were denied. Defendants appeal.\nRogers, Cabler and Henson, by J. Edwin Henson, for plaintiff appellees.\nOrr & Payne, by Robert F. Orr, for defendant appellants."
  },
  "file_name": "0626-01",
  "first_page_order": 654,
  "last_page_order": 656
}
