{
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  "name": "ORANGE GROCERY COMPANY v. CPHC INVESTORS, a North Carolina General Partnership",
  "name_abbreviation": "Orange Grocery Co. v. CPHC Investors",
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    "judges": [
      "Judges Arnold and Webb concur."
    ],
    "parties": [
      "ORANGE GROCERY COMPANY v. CPHC INVESTORS, a North Carolina General Partnership"
    ],
    "opinions": [
      {
        "text": "BRASWELL, Judge.\nThe sole issue before this Court is whether the trial court erred in granting defendant\u2019s motion for judgment notwithstanding the verdict after the jury had returned a verdict in favor of plaintiff. After careful examination of the applicable law and the evidence in the record on appeal, we find no error and affirm the lower court\u2019s decision.\nIn passing on motions for either a directed verdict or judgment notwithstanding the verdict, the trial court must consider the evidence in the light most favorable to the nonmovant. The motion may be granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the nonmovant. Snellings v. Roberts, 12 N.C. App. 476, 183 S.E. 2d 872, cert. denied, 279 N.C. 727, 184 S.E. 2d 886 (1971). In the case before us, the trial court was confronted with the task of determining whether plaintiff had introduced substantial evidence of each and every element required to establish an easement by prescription.\nOur Supreme Court in Dickinson v. Pake, 284 N.C. 576, 580-81, 201 S.E. 2d 897, 900-01 (1974), set out the following four elements which must be proved by the greater weight of the evidence before a prescriptive easement is established: (1) The use must be adverse, hostile or under a claim of right. (2) The use must be open and notorious. (3) The adverse use must be continuous and uninterrupted for 20 years. (4) There must be substantial identity of the easement claimed. The burden of proving these essential elements is on the party claiming the easement. This party also has the burden of rebutting a presumption that its use is permissive and not adverse. Potts v. Burnette, 301 N.C. 663, 273 S.E. 2d 285 (1981).\nPlaintiff\u2019s evidence tends to show that it purchased the property at issue in the 1940\u2019s. Since then this land has been used as a parking lot for Fowler\u2019s Food Store employees. The sole access to plaintiff\u2019s lot is from Rosemary Street through defendant\u2019s parking lot. Neither defendant nor its predecessors ever gave plaintiff permission to use this access across its property nor did plaintiff request permission. In 1959 plaintiff paved its parking lot. The newly paved area encroached upon defendant\u2019s parking lot about 12 inches. In December 1980 defendant purchased the parking lot adjacent to plaintiff\u2019s lot, and informed plaintiff that the access over defendant\u2019s lot would be closed as of 6 April 1981.\nPlaintiff\u2019s President, Marvin Barnes, testified on cross-examination that in the past a bank with a drive-in window was housed in a building on defendant\u2019s lot. He admitted that while the bank possessed this property there was \u201can actively used entrance and an exit to and from the CPHC [defendant] lot to Franklin Street . . . .\u201d He further admitted, \u201cThat way through the CPHC [defendant] lot along the driveway to Franklin Street was open to the public for years. I\u2019m not sure it was closed to the public about 1967 when CCB [Central Carolina Bank] moved out of that location and sold its building, but that\u2019s probably right.\u201d Defendant presented evidence confirming that a bank was predecessor in title to its property; that the public used an access through the property from Franklin Street to Rosemary Street and that access to the drive-in window from Franklin Street was closed when the bank vacated the property in 1967. A witness for defendant further testified that defendant decided to block plaintiff\u2019s access to its lot after plaintiff refused to rent that portion of defendant\u2019s lot which was used as the access. The witness calculated that approximately 6 parking spaces were being utilized for this purpose.\nThis evidence fails to support the essential elements of use that is adverse, hostile or under a claim of right for an uninterrupted period of 20 years. A \u201chostile\u201d use has been defined as \u201ca 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). \u201cThe term adverse user or possession implies a user or possession that is not only under a claim of right, but that it is open and 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.\u201d Snowden v. Bell, 159 N.C. 497, 500, 75 S.E. 721, 722 (1912). In addition, adverse use implies use that is exclusive as against the community or public at large. 28 C.J.S. Easements \u00a7 15 (1941).\nIn the case before us, there is no testimony that the plaintiff believed the right-of-way over defendant\u2019s parking lot belonged to it or that it possessed any claim of right. We find no merit to plaintiffs argument that its one-time paving of the parking lot behind Fowler\u2019s Food Store and its paved \u201cencroachment\u201d of 12 inches onto the defendant\u2019s lot constitutes maintenance of the right-of-way over defendant\u2019s property which put defendant on notice of any adverse use or claim of right. Even assuming that defendant was given notice of a claim of right, the uncontradicted evidence in the record shows there was no claim of right or hostile or adverse use of defendant\u2019s property for the required 20-year period. Witnesses for both parties testified that a portion of the disputed right-of-way was used by the public as a driveway connecting Franklin Street and Rosemary Street for years and was closed to the public about 1967.\nPlaintiff would have us find that the facts here are so similar to the facts in Dickinson v. Pake, supra, Potts v. Burnette, supra, and Newsome v. Smith, 56 N.C. App. 419, 289 S.E. 2d 149 (1982), that the verdict finding a prescriptive easement in favor of plaintiff must be affirmed. Our comparison of these cases with the instant case discloses fatal differences.\nThe plaintiffs in Dickinson, Potts and Newsome, like the plaintiff here, used a right-of-way over defendant\u2019s land as their sole means of access to their land for over 20 years. No permission had ever been requested or given. The similarity between these three cases and the case on appeal ends here. The plaintiffs in Newsome maintained the road over defendant\u2019s land by smoothing, upgrading and graveling it; and there was evidence that they believed they owned the road. In Potts, the plaintiffs on at least one occasion also smoothed, graded and graveled the road. They \u201cconsidered their use of the road to be a right and not a privilege.\u201d Potts v. Burnette, supra, 301 N.C. at 668, 273 S.E. 2d at 289. The plaintiffs in Dickinson performed \u201cwhat slight maintenance was required\u201d to keep defendants\u2019 road passable. Dickinson v. Pake, supra, 284 N.C. at 583, 201 S.E. 2d at 901. One of the plaintiffs testified that she and the other plaintiffs thought it was their road and that they had a right to use it. In Newsome and Dickinson, the roads at issue were used by plaintiffs to gain access to their homes. In Potts, the plaintiffs and the public used the road to reach plaintiffs\u2019 land for social and agricultural purposes and to attend funerals at a cemetery located on plaintiffs\u2019 property.\nPlaintiff has shown no evidence of any claim of right and hostile or adverse use. The uncontradicted evidence shows that the public used a portion of the disputed right-of-way over defendant\u2019s property until 1967 as an access to public streets and to the bank\u2019s drive-in window. There was never any use by the public of the right-of-way to gain access to plaintiffs property. Finally, plaintiff neither orally nor by its actions ever expressed any claim of right.\nThe judgment entered for defendant is\nAffirmed.\nJudges Arnold and Webb concur.",
        "type": "majority",
        "author": "BRASWELL, Judge."
      }
    ],
    "attorneys": [
      "Mount, White, King, Hutson, Walker & Carden, by Richard M. Hutson, II, and James H. Hughes, for plaintiff appellant.",
      "Northen, Little & Bagwell, by Ken Bagwell for defendant ap-pellee."
    ],
    "corrections": "",
    "head_matter": "ORANGE GROCERY COMPANY v. CPHC INVESTORS, a North Carolina General Partnership\nNo. 8215SC943\n(Filed 5 July 1983)\nEasements \u00a7 6.1\u2014 easement by prescription \u2014 insufficiency of evidence\nPlaintiff failed to show an easement by prescription in a 20-foot corridor over defendant\u2019s property where plaintiffs evidence failed to show any claim of right and hostile or adverse use. The evidence showed that the public used a portion of the disputed right-of-way over defendant\u2019s property until 1967 as an access to public streets and to a bank\u2019s drive-in window, and there was never any use by the public of the right-of-way to gain access to plaintiffs property. Further, plaintiff neither orally nor by its actions ever expressed any claim of right.\nAppeal by plaintiff from Seay, Judge. Judgment entered 15 May 1982 in Superior Court, ORANGE County. Heard in the Court of Appeals 9 June 1983.\nFor a number of years plaintiffs lessee, Fowler\u2019s Food Store, used a 20-foot corridor over defendant\u2019s property as a means of ingress and egress to plaintiff\u2019s property. The properties are adjacent to one another and located in the Town of Chapel Hill. Plaintiff\u2019s property is used as a parking lot for Fowler\u2019s employees. Defendant also uses its property as a parking lot and leases spaces. Plaintiff\u2019s lot is bordered on the east by Fowler\u2019s Food Store, on the south by a brick wall and property owned by a third party, on the north by a store building and landscaped area and on the west by defendant\u2019s parking lot. Defendant\u2019s lot is entered by way of Rosemary Street. Fowler\u2019s Food Store faces south onto Franklin Street which is parallel to Rosemary Street.\nOn 2 April 1981 plaintiff initiated this action alleging that defendant planned to barricade the right-of-way to plaintiff\u2019s parking lot, thus depriving plaintiff of its only access to its property. Plaintiff alleged that its use of this right-of-way was made without permission of defendant and its predecessors in title; and that such use had been adverse, hostile, open, notorious, continuous and uninterrupted for over 20 years. In its answer defendant responded that plaintiff had used defendant\u2019s property as a means of access with the permission and license of defendant\u2019s predecessors in title.\nAfter hearing the evidence of both parties, the jury found that plaintiff had acquired an easement over the land of defendant \u201cby adverse use of a 20 foot corridor through the parking lot exiting onto Rosemary Street ... for a period of 20 years.\u201d The trial court, thereafter, granted defendant\u2019s motion for entry of judgment notwithstanding the verdict and alternative motion for new trial. Plaintiff appeals.\nMount, White, King, Hutson, Walker & Carden, by Richard M. Hutson, II, and James H. Hughes, for plaintiff appellant.\nNorthen, Little & Bagwell, by Ken Bagwell for defendant ap-pellee."
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