{ "id": 8526169, "name": "WILLIAM L. HIGDON and wife, JANE A. HIGDON v. KENNETH LARRY DAVIS and wife, JENCY L. DAVIS", "name_abbreviation": "Higdon v. Davis", "decision_date": "1984-12-18", "docket_number": "No. 8330SC1337", "first_page": "640", "last_page": "660", "citations": [ { "type": "official", "cite": "71 N.C. App. 640" } ], "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": "79 S.E. 2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "239 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625469 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/239/0011-01" ] }, { "cite": "167 S.E. 2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 652", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555347 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0652-01" ] }, { "cite": "35 S.E. 2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613295 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0553-01" ] }, { "cite": "159 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575251 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0340-01" ] }, { "cite": "193 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567396, 8567430, 8567528, 8567469, 8567506 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0582-01", "/nc/282/0582-02", "/nc/282/0582-05", "/nc/282/0582-03", "/nc/282/0582-04" ] }, { "cite": "192 S.E. 2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 604", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553418 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0604-01" ] }, { "cite": "121 S.E. 2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "735" } ], "opinion_index": 0 }, { "cite": "255 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568740 ], "year": 1961, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0302-01" ] }, { "cite": "189 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575673 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0582-01" ] }, { "cite": "89 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "243 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619533 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/243/0001-01" ] }, { "cite": "236 S.E. 2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "239 Ga. 220", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1158120, 1158177 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ga/239/0220-02", "/ga/239/0220-01" ] }, { "cite": "173 S.E. 2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "226 Ga. 165", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1115214 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/ga/226/0165-01" ] }, { "cite": "22 S.E. 2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1942, "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "194 Ga. 419", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 216111 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/ga/194/0419-01" ] }, { "cite": "252 S.E. 2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "40 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549676 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/40/0247-01" ] }, { "cite": "201 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1974, "pin_cites": [ { "page": "900" }, { "page": "900" }, { "page": "900, 901" }, { "page": "903" }, { "page": "901" } ], "opinion_index": 0 }, { "cite": "284 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563409 ], "weight": 6, "year": 1974, "pin_cites": [ { "page": "580" }, { "page": "581" }, { "page": "581" }, { "page": "585" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0576-01" ] }, { "cite": "193 S.E. 153", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "opinion_index": 0 }, { "cite": "212 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602777 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/nc/212/0185-01" ] }, { "cite": "39 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "226 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621524 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/nc/226/0492-01" ] }, { "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": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560153 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0257-01" ] }, { "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, "opinion_index": 0, "case_paths": [ "/nc/238/0542-01" ] }, { "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" ] }, { "cite": "121 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570144 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0444-01" ] }, { "cite": "167 S.E. 2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 385", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558820 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0385-01" ] } ], "analysis": { "cardinality": 1179, "char_count": 44147, "ocr_confidence": 0.803, "pagerank": { "raw": 2.4136418165017647e-07, "percentile": 0.8002057262797947 }, "sha256": "e746415255b157d75cdce838d7b1c1161384bb20668d308c5f825236a996bf8b", "simhash": "1:ce04468366ce99d8", "word_count": 7572 }, "last_updated": "2023-07-14T17:51:06.115640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Whichard concur." ], "parties": [ "WILLIAM L. HIGDON and wife, JANE A. HIGDON v. KENNETH LARRY DAVIS and wife, JENCY L. DAVIS" ], "opinions": [ { "text": "EAGLES, Judge.\n1 \u2014 4\nThis case presents an issue of first impression; whether one can acquire a prescriptive easement by adverse use for seven years under color of title pursuant to G.S. 1-38. The jury answered this issue in the affirmative and plaintiffs assign as error the trial court\u2019s refusal to grant a directed verdict or judgment notwithstanding the verdict on this issue. For the reasons herein stated, we find no error in the trial court\u2019s refusal to grant plaintiffs\u2019 motions.\nA. Applicability of color of title to prescriptive easements.\nIn determining whether the doctrine of color of title pursuant to G.S. 1-38 can be applied in any case, we first consider whether \u201ccolor of title\u201d is actually present. Color of title is generally defined as a written instrument which purports to convey the land described in the written instrument, but fails to do so because of:\n1. Want of title in the Grantor, or\n2. Some defect in the mode of conveyance.\nPrice v. Tomrich Corp., 275 N.C. 385, 167 S.E. 2d 766 (1969). If these defects do not exist, title is actually passed by the instrument and there can be no color of title.\nAs applied to this case, the evidence at trial tended to show that Emmerson G. Crawford and wife transferred by general warranty deed to defendants certain land identified by a metes and bounds description. In addition to the metes and bounds description, the deed contains the following language:\nParties of the first part [Crawfords] further convey to parties of the second part [defendants], their heirs and assigns, an easement for a roadway 12 feet in width, the South Margin of which runs as follows: Beginning on an iron rod, said point being located North 5 degrees 30 minutes West 79.6 feet from the second and Southwest corner of the land described herein; runs thence South 85 degrees 10 minutes West 83 feet to the East margin of Porter Street.\nThis easement is a driveway that runs across plaintiffs\u2019 adjoining land to a city street. The Crawfords excepted the easement from the warranties contained in the deed, but nevertheless conveyed the easement on the face of the deed to defendants.\nThis easement described in the deed from the Crawfords to defendants is the same easement conveyed by the remaining deeds in defendants\u2019 chain of title. The three preceding deeds grant the easement by referring to the easement as it appears in the fourth preceding deed from R. D. Rogers and wife to W. G. Hall and wife. The language in the Rogers to Hall deed conveys the easement as follows:\nParties of the first part [Rogers] further convey to parties of the second part a right of way 12 feet wide over the following described land: BEGINNING at the Northwest corner of the Co-Jo Filling Station property on the East side of Porter Street in the Town of Franklin, running thence with the North line of said property in an Easterly direction to the West line of the land above described at the Northeast corner of the Co-Jo property; thence with the West line of the land above described in a Northerly direction 12 feet; thence in a Westerly direction parallel to the first line to the East margin of Porter Street; thence with the East margin of Porter Street in a Southerly direction 12 feet to the point of Beginning, being the right of way described in a deed from Hallie C. Cozad, widow, et al, to R. D. Rogers, dated June 14, 1948, and this deed is made subject to the conditions contained in said right of way deed.\nThe beginning deed for the easement in defendants\u2019 chain of title is a right-of-way deed from Hallie C. Cozad, widow, et al., to R. D. Rogers dated 14 June 1948. Mrs. Cozad is the common source of title to the lands of plaintiffs and defendants. The conditioning language in the right-of-way deed, which is specifically referred to in the deed from Rogers to Hall, requires, as consideration for the deed, that the grantee and his heirs and assigns \u201cshall always maintain an all weather drive over said right-of-way.\u201d Should the original grantee or his heirs or assigns fail to maintain an all weather driveway, then the right-of-way deed \u201cshall be null and void and the rights hereby conveyed shall revert [to the grantor].\u201d\nPlaintiffs argue that there can be no color of title based on the Rogers to Hall conveyance because there was no evidence that the Rogers lacked title to the easement at the time they conveyed it to the Halls. We agree but note that the Halls did not have good title to the easement when they conveyed the easement by deed on 19 August 1965 to Marshall and Freddie McElroy, defendants\u2019 predecessors in title. This absence of good title was due to the defeasance of the easement by reason of the Halls\u2019 failure to build a gravel driveway within a reasonable time and their failure to maintain the driveway in an all weather condition.\nThere was evidence at trial that tended to show that R. D. Rogers and wife held the property, which later became the dominant tract, from 21 May 1946 to 21 July 1948. The Rogers\u2019 property became the dominant tract when Hallie C. Cozad, widow, et al., conveyed to the Rogers a right-of-way deed for a driveway, subject to conditions, on 14 June 1948. On 21 July 1948, the Rogers conveyed the dominant tract to W. G. Hall and wife. The Halls owned the easement from 21 July 1948 to 19 August 1965, a period of 17 years. The Rogers owned the easement for less than a month.\nWhile less than one month of ownership may not be a reasonable time within which to build and thereafter maintain a driveway in an all weather condition, 17 years of ownership is more than a reasonable time in which to complete the conditions called for in the right-of-way deed.\nThere was evidence at trial that the driveway had not been built and that the called-for driveway was not maintained in an all-weather condition during the period that the property and easement was owned by W. G. Hall and wife. This evidence was sufficient for the jury to conclude that the conditions in the right-of-way deed had not been met. For this reason, W. G. Hall and wife had no title to the easement to transfer to a subsequent grantee. The defeasance had operated during the Halls\u2019 ownership and the title to the easement had reverted to the grantors of the easement, their heirs and assigns. Any subsequent grant of the easement by deed is color of title to that easement.\nWhen the description in a deed embraces not only the land owned by the grantor, but also contiguous land which he does not own, the instrument conveys the property to which the grantor had title and constitutes color of title to that portion which he does not own. Lane v. Lane, 255 N.C. 444, 121 S.E. 2d 893 (1961). Since the deeds subsequent to the ownership of the easement by W. G. Hall and wife purported to grant an easement in which the grantors had no title, we hold that there was sufficient evidence of color of title.\nHaving found that color of title exists here, we next consider whether the doctrine of color of title is applicable to acquisition of title to an easement by prescription. We hold that it is applicable.\nSeveral legal principles relating to easements by prescription have evolved in our appellate decisions:\n(1) The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement. Williams v. Foreman, 238 N.C. 301, 77 S.E. 2d 499 (1953).\n(2) The law presumes that the use of a way over another\u2019s land is permissive or with the owner\u2019s consent unless the contrary appears. Henry v. Farlow, 238 N.C. 542, 78 S.E. 2d 244 (1953).\n(3) The use must be adverse, hostile, and under a claim of right. Dulin v. Faires, 266 N.C. 257, 145 S.E. 2d 873 (1966).\n(4) The use must be open and notorious. Snowden v. Bell, 159 N.C. 497, 75 S.E. 721 (1912).\n(5) The adverse use must be continuous and uninterrupted for a period of twenty years. Speight v. Anderson, 226 N.C. 492, 39 S.E. 2d 371 (1946).\n(6) There must be substantial identity of the easement claimed. Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153 (1937).\nPlaintiff argues that the prescriptive period for acquiring title to an easement is judge-made law and the correct prescriptive period is 20 years. Speight v. Anderson, supra; Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974). Plaintiff also argues correctly that this twenty-year prescriptive period is analogous to G.S. 1-40 which requires a twenty-year period for gaining title to real property under adverse possession.\nIt appears that our appellate decisions have not made a similar analogy to G.S. 1-38, the statute of limitations for adverse possession under seven years\u2019 color of title. Based on sound policy reasons, we hold that G.S. 1-38 is applicable to prescriptive easements.\nPrevious cases holding that the prescriptive period is twenty years did not definitively address the issue of color of title.\nIn Adams v. Severt, 40 N.C. App. 247, 252 S.E. 2d 276 (1976), this court had an opportunity to address the application of G.S. 1-38 to the acquisition of title to an easement. However, the reservation of an easement by deed in that case was ineffective. The description of the easement in the deed was insufficient to identify and locate it. This court held that where the reservation of an easement in a deed was ineffective, the claim of adverse possession of the easement under color of title pursuant to G.S. 1-38 was also ineffective.\nThe right-of-way easement deed here has no fatal defect such as appeared in Adams v. Severt, supra. The deeds in defendants\u2019 chain of title adequately describe and locate the easement and are sufficient to serve as color of title.\nGenerally, except in a few states in which the statutory period for acquiring title to real property is held not to apply (Tennessee, Florida and Utah), the period necessary for acquiring title to an easement by prescription is, by analogy, the period limited for the acquisition of title to land by adverse possession. Most of the adverse possession of realty statutes do not, by their terms, apply to prescriptive rights, but to the acquisition of corporeal hereditaments only. 28 C.J.S., Easements, Section 16 (1941 and Supp. 1984). (Alaska, Arizona, Kansas, Mississippi, New Mexico, New York, Pennsylvania, Texas and Washington.) The discussion of acquisition of easements by prescription in Hetrick\u2019s revision of Webster\u2019s Real Estate Law in North Carolina, states that by analogy, the statute of limitations applicable for acquiring title to land by adverse possession (G.S. 1-40) serves as the basis for presuming the grant of an easement. Hetrick, Webster\u2019s Real Estate Law in North Carolina, Section 318 (1981). If G.S. 1-40 is applicable by analogy as the prescriptive period for acquiring the grant of an easement, we find no compelling reason to refuse to apply G.S. 1-38 as a method to acquire the grant of an easement under color of title where it is shown to exist. Where one can acquire fee simple title to the greater interest under color of title pursuant to G.S. 1-38, common sense dictates that, in the absence of statutes to the contrary, one should also be able to acquire title to easements appurtenant to that interest in the same statutory period. To hold otherwise would require the grantee to wait twenty years to gain title to an easement he had bargained for in the deed from his grantor, when he would be required to wait only seven years for the real property itself, if the grantor had not in fact had title to convey. This is not logically consistent and would produce harsh results.\nAs applied here, G.S. 1-38 avoids a hardship where defendants were conveyed real property with an easement appurtenant and the grantor had title to the real property, but not the easement. Because the easement was conveyed in the deed and relied on by defendants, who then began to use the easement, and in fact paved a driveway over it, color of title should operate to give defendants title to the easement. Defendants assert that this result is in line with the law of other states on the same issue.\nWhile the law of other jurisdictions does not bind our appellate courts, opinions from other states can offer guidance. In Warlick v. Rome Loan and Finance Company, 194 Ga. 419, 22 S.E. 2d 61 (1942) the Georgia Supreme Court held:\nWhere other elements of prescription are present, adverse possession, under written evidence of title, for seven years, shall give title by prescription . . . This provision of law applies in a like manner to easements. 194 Ga. at 421, 22 S.E. 2d at 63.\nIn Georgia Power Company v. Gibson, 226 Ga. 165, 173 S.E. 2d 217 (1970) Georgia Power Company alleged adverse possession of a prescriptive easement for more than twenty years or adverse possession under color of title for seven years. The Georgia Supreme Court again held that prescriptive title to an easement is governed by the same rules as prescriptive title to land. It further held that the deed in question supported possession of the easement for seven years under color of title. 226 Ga. at 165, 173 S.E. 2d at 218. The Georgia cases stand for the proposition that an easement may be acquired by prescription in twenty years unless there is some color of title, in which case only seven years is required. Smith v. Clay, 239 Ga. 220, 236 S.E. 2d 346 (1977). We hold that by application of G.S. 1-40 (20 years\u2019 possession) and G.S. 1-38 (possession for seven years under color of title) that a similar rule applies to the acquisition of prescriptive easements in North Carolina. In those cases where the other elements of prescription are present, adverse possession of an easement under written color of title for seven years pursuant to G.S. 1-38 shall give title to the easement by prescription.\nHaving determined that G.S. 1-38 is applicable to prescriptive easements where all other elements of prescription are present, we next consider whether all of the elements of prescription are present here. We hold that they are.\n(1) The use must be adverse, hostile or under a claim of right. Dulin v. Faires, supra.\nTo establish that a use is hostile rather than permissive, it is not necessary to show that 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 a use of such nature and exercise under circumstances which manifest and give notice that the use is being made under a claim of right. There must be some evidence accompanying the use which tends to show that the use is hostile in character and tends to repel the inference that the use is permissive and with the owner\u2019s consent. A mere permissive use of a way over another\u2019s land, however long it may be continued, can never ripen into an easement by prescription. Dickinson v. Pake, 284 N.C. 576, 580, 201 S.E. 2d 897, 900 (1973).\nAs applied to the instant case, we note that the adverse use is under a claim of right contained in a deed from defendants\u2019 grantors. Further, there was evidence at trial that tended to show that defendants and their immediate predecessors in title, the Crawfords, used the easement during their respective ownerships of the dominant tract from February 1971 until this action was filed on 29 July 1980 pursuant to the grant of the easement. There was further evidence from Emmerson G. Crawford and defendant Kenneth L. Davis that owners of the servient estate had attempted to block the easement and prevent its use. These attempted closings of the easement took place between 1971 and 1972 when the Linvilles owned the servient tract and again between 1976 and 1980 when plaintiffs owned the servient tract. Both Crawford and defendant Davis testified that they asserted their right to use the easement in question and continued to use it. This was sufficient evidence upon which a jury could find that the use of the easement was adverse, hostile or under a claim of right and not permissive.\n(2) The use must be open and notorious. Snowden v. Bell, supra.\nThe term adverse use or possession implies a use 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. This may be proven by circumstances as well as by direct evidence. Dickinson v. Pake, 284 N.C. at 581, 201 S.E. 2d at 900.\nAs applied here, evidence at trial tended to show an actual use of land under a claim of right contained in a deed. Further, plaintiffs and their predecessors in title had record notice of the easement. Evidence that there were attempts to block the easement is indicative that plaintiffs had notice and that the defendants\u2019 use of the easement was open and notorious.\n(3) The adverse use must be continuous and uninterrupted for a period of twenty years, Speight v. Anderson, supra, unless there is written color of title, in which case the adverse use must be continuous and uninterrupted for a period of seven years.\nThe continuity required is that the use be more or less frequent according to the nature of the easement. Dickinson v. Pake, 284 N.C. at 581, 201 S.E. 2d at 900, 901.\nAs previously noted, the prescriptive period for acquiring an easement by prescription in North Carolina is now seven years where the claim is under color of title pursuant to G.S. 1-38.\nThe burden is on defendants to show that they used the easement more or less frequently according to the nature of the easement and that they used the easement for seven years. Defendants have done so.\nThere was evidence at trial that tended to show that Emmer-son G. Crawford and wife became owners of the dominant tract in February 1971. Defendants became owners of this same dominant tract, by deed from the Crawfords as grantors, in January of 1976. This action was brought in July of 1980. Trust Co. v. Miller, 243 N.C. 1, 89 S.E. 2d 765 (1955), holds that one who has color of title can \u201ctack\u201d his possession with successive possessions for the purpose of showing a continuous adverse possession for seven years under color of title because there is privity of estate. It is also true in North Carolina that successive adverse users in privity with prior adverse users can \u201ctack\u201d successive adverse possessions of land so as to aggregate the prescriptive period for an easement by prescription. Dickinson v. Pake, 284 N.C. at 585, 201 S.E. 2d at 903; Hetrick, Webster\u2019s Real Estate Law in North Carolina, Section 322 (1981). Since the doctrine of tacking applies to the acquisition of easements as well as to adverse possession of land generally, it is clear that defendants here had at least seven years continuous and uninterrupted use of the easement between February 1971 and July 1980.\nIt should be noted that the Crawfords\u2019 possession under their deed from L. C. Higdon and wife did not amount to possession for seven years. However, when the defendants\u2019 possession is \u201ctacked\u201d onto the Crawfords\u2019 period of possession, the requirement of seven years\u2019 possession is met.\nAt trial there was evidence to show that in addition to the required seven years\u2019 possession the easement was used for ingress and egress to the dominant estate. The easement was for a driveway and it was to that use that the easement was put.\nFrom the record we conclude that there was sufficient evidence from which the jury could find that the adverse use of the easement was continuous and uninterrupted for the prescriptive period of seven years under color of title.\n(4) There must be substantial identity of the easement claimed. Hemphill v. Board of Aldermen, supra.\nThis rule contemplates a definite and specific line to which the user of the easement is confined. There may be slight deviations in the line of travel but there must be substantial identity of the easement enjoyed. Dickinson v. Pake, 284 N.C. at 581, 201 S.E. 2d at 901.\nThere was evidence at trial that tended to show that the easement enjoyed by defendants was the same easement granted in the original right-of-way deed. Further, there was evidence from two surveyors as to the actual location of the easement upon the ground. The testimony of the two surveyors conflicted somewhat creating an issue of fact for the jury, as discussed infra. Defendant Kenneth L. Davis also offered evidence that he had paved a driveway within the confines of the easement. This was sufficient evidence from which the jury could find that there was substantial identity of the easement claimed.\nB. Plaintiffs\u2019 motions for directed verdict and judgment NOTWITHSTANDING THE VERDICT.\nA motion for directed verdict raises the question as to whether there is sufficient evidence to go to the jury. The standard to be applied is that when the evidence is taken as true and considered in the light most favorable to the non-movants, a directed verdict may be granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the non-movant. Younts v. Insurance Company, 281 N.C. 582, 189 S.E. 2d 137 (1972); Dickinson v. Pake, supra.\nWhen so viewed, defendants\u2019 evidence tends to show and would permit but not compel a jury to find that:\n(1) Defendants and their predecessors in title, the Craw-fords, used the easement described in the deed in question for the purpose of a driveway from February 1971 until July 1980.\n(2) The use of the easement commenced before plaintiffs acquired the servient estate and was continued under such circumstances as to give plaintiffs notice that the use was adverse, hostile and under a claim of right.\n(3) The use was open and notorious and with plaintiffs\u2019 full knowledge.\nThis evidence was sufficient to rebut the presumption that the use was permissive and was sufficient to carry the issue to the jury. The trial court properly denied plaintiffs\u2019 motion for directed verdict. Dickinson v. Pake, supra.\nThe propriety of granting a motion for judgment notwithstanding the verdict is determined by the same considerations as a motion for a directed verdict. Consequently, since the evidence offered by defendants in this case as to adverse possession of the easement under seven years\u2019 color of title was sufficient to withstand plaintiffs\u2019 motion for directed verdict at the close of all the evidence, the trial court properly denied plaintiffs\u2019 motion for judgment notwithstanding the verdict. Dickinson v. Pake, supra.\nII\nPlaintiffs next argue that the trial court erred as a matter of law in submitting the issue of adverse possession of an easement under seven years' color of title to the jury.\nWe note that the record does not disclose an objection to the submission of this issue to the jury at the trial of this action. Rule 10(b)(2), Rules of Appellate Procedure, prohibits a party from assigning as error any portion of the jury charge or omission unless an objection was made before the jury retires to consider its verdict. If the trial court properly charged on this issue, plaintiffs may not be heard to complain now on appeal. We note that the jury instructions are not in the record, further undermining plaintiffs\u2019 right to complain on appeal.\nAs to the framing of issues put to the jury, we note:\nA party who is dissatisfied with the form of the issues or who desires an additional issue should raise the question at once, by objecting or by presenting the additional issue. If a party consents to the issues submitted or does not object at the time or ask for a different or an additional issue, he cannot make the objection later on appeal. Baker v. Construction Corp., 255 N.C. 302, 307, 121 S.E. 2d 731, 735 (1961).\nThe record before us shows no jury instructions and no objection by the plaintiffs to the issue submitted to the jury concerning acquisition of a prescriptive easement under seven years\u2019 color of title. For this reason, we do not consider this assignment of error.\nI \u2014 I t \u2014 (\nPlaintiffs next assign as error the trial court\u2019s directed verdict against plaintiffs on the issue of a deed of gift which is void if not proved and registered within two years after its making and the exclusion of a documentary exhibit and certain testimony of two witnesses. We find no error.\nThe basis of plaintiffs\u2019 argument is that the right-of-way deed from Hallie C. Cozad, widow, et al., to R. D. Rogers was a deed of gift that became void when it was not registered within two years of its making on 14 June 1948.\nG.S. 47-26 provides:\nAll deeds of gift of any estate of any nature shall within two years after the making thereof be proved in due form and registered, or otherwise shall be void, and shall be good against creditors and purchasers for value only from the time of registration.\nIf consideration has been paid for the deed, it is not a deed of gift and its recordation is necessary only as against purchasers for value and lien creditors. A deed of gift is, of course, valid as to the parties and their heirs and assigns. Hetrick, Webster's Real Estate Law in North Carolina, Section 381 (1981).\nAs applied here, plaintiffs\u2019 assignment of error requires a determination of whether there was consideration given for the grant of the right-of-way deed. We hold that there was adequate consideration and that the right-of-way deed was not a deed of gift.\nThere must be some value given by the grantee to the grant- or in return for the deed to prevent its being a deed of gift. The grantee must give to the grantor \u201csome legal rights ... to which the grantor would not otherwise have been entitled.\u201d\nThe right-of-way deed from Hallie C. Cozad, widow, et al., to R. D. Rogers dated 14 June 1948 contains the following language:\nWITNESSETH; That for and in consideration of the sum of One Dollar to them in hand paid, and other valuable consideration, receipt of which is hereby acknowledged . . .\nWhere a deed recites the payment and receipt of a consideration, it is presumed to be correct and is prima facie evidence of that fact. Pelaez v. Pelaez, 16 N.C. App. 604, 192 S.E. 2d 651 (1972), cert. denied 282 N.C. 582, 193 S.E. 2d 745 (1973); Speller v. Speller, 273 N.C. 340, 159 S.E. 2d 894 (1968). However, it is also true that this presumption of consideration may be rebutted by parol evidence. Westmoreland v. Lowe, 225 N.C. 553, 35 S.E. 2d 613 (1945).\nMrs. Mildred C. Brown, a grantor in the right-of-way deed from Hallie C. Cozad, widow, et al., to R. D. Rogers, testified that neither she nor her husband, also a grantor under the right-of-way deed, received any money as a result of the granting of the easement in question. John 0. Wall, also a grantor under the right-of-way deed, testified that he had not received any money from the transfer of the easement.\nThe other grantors in the right-of-way deed did not testify. Hallie C. Cozad is 98 years old and confined to a nursing home, C. S. Brown, Jr. is an invalid and Margaret C. Wall is deceased. We hold that the bare assertions of two of the grantors that they did not receive money and the assertion of the witness Brown that her husband did not receive money is insufficient to rebut the presumption of the consideration recited as paid and received in the right-of-way deed since there were other grantors not testifying who could have received monetary consideration.\nPlaintiffs argue that it was error to exclude the testimony of the witness Brown as to whether Hallie C. Cozad had ever received money for the transfer of the easement. The witness Brown testified that Hallie C. Cozad was her mother and that she had \u201clooked after [Mrs. Cozad\u2019s] business since 1964.\u201d The witness attempted to testify that Hallie C. Cozad did not receive money but an objection was sustained.\nWe note that Hallie C. Cozad did not utilize Mrs. Brown to look after her business affairs from the date of the transfer of the easement, 14 June 1948, until sometime in 1964. This indicates that Mrs. Brown lacked opportunity to know whether Hallie C. Cozad had ever received money for the transfer of the easement. For this reason, the trial court did not err in refusing to admit this testimony.\nPlaintiffs argue that it was error to exclude the testimony of the witness John O. Wall as to whether his wife, Margaret C. Wall, had received money for the transfer of the easement. No foundation was laid to show that the witness Wall had any personal knowledge as to whether his wife actually received any money. For this reason the trial court did not err in refusing to admit her testimony.\nThe right-of-way deed from Hallie C. Cozad, widow, et al., to R. D. Rogers, in addition to reciting the receipt of one dollar, also contains the following language indicating other valuable consideration:\nThe consideration for which this right of way deed is made is that party of the second part [grantee], his heirs and assigns, shall always maintain an all weather drive over said right of way . . .\nThe consideration recited is executory. There is a requirement of future maintenance which necessarily incorporates an implied-in-fact promise that grantee, his heirs and assigns will actually perform the maintenance required to keep the driveway in an all-weather condition.\nThere is consideration if the promisee [here the grantor] in return for the promise, does anything legal which he is not bound to do, whether there is any actual loss or detriment to him, or actual benefit to the promisor or not. Foundation, Inc. v. Basnight, 4 N.C. App. 652, 167 S.E. 2d 486 (1969). Hallie C. Cozad and others as grantors conveyed the right-of-way in exchange for the implied-in-fact promise to construct and maintain the right-of-way as required by the conditioning language of the deed. The implied-in-fact promise is the consideration for the right-of-way deed and is sufficient to support the trial court\u2019s directed verdict on the issue of deed of gift.\nPlaintiffs offered into evidence an \u201caffidavit\u201d to the effect that the conditions in the right-of-way deed had not been complied with. The trial court properly refused to admit the exhibit.\nPlaintiffs argue that the \u201caffidavit\u201d was only offered as \u201ccorroboration\u201d of the testimony of witnesses Brown and Wall on the issue of whether the conditions of the right-of-way deed were complied with.\nWe note that the application of the rules regulating the reception and exclusion of corroborative evidence, so as to keep its scope and volume within reasonable bounds, is necessarily a matter which rests in large measure in the discretion of the trial court. Gibson v. Whitton, 239 N.C. 11, 79 S.E. 2d 196 (1953). Plaintiffs show no abuse of discretion by the trial court. Absent a showing of abuse of discretion, the trial court\u2019s ruling will be upheld on appeal.\nFurther, it appears to us that the \u201caffidavit\u201d is not relevant as to whether there was in fact consideration \u2014 an implied-in-fact promise \u2014 present in the instant case. Although the \u201caffidavit\u201d was not offered into proof at trial, plaintiffs purport to include it in the record on appeal. The \u201caffidavit\u201d shows nothing more than the conclusory statement that the implied-in-fact promise was breached. The \u201caffidavit\u201d does not show that the implied-in-fact promise was never made. For these reasons, the trial court did not err in refusing to admit the affidavit.\nThe evidence offered by plaintiffs was insufficient to support a verdict in plaintiffs\u2019 favor on the issue of a deed of gift. We hold that the trial court did not err in directing a verdict against plaintiffs on this issue.\nIV\nPlaintiffs next assign as error the trial court\u2019s failure to submit to the jury issue number 1 of plaintiffs\u2019 tendered issues. We agree that there was error.\nIssue number one of plaintiffs\u2019 tendered instructions reads:\n1. Does the description in the right of way deed dated June 14, 1948 describe the green area, G, H, I, J, G or the red area, C, E, F, D, C?\nThe court-appointed surveyor and the surveyor for defendants offered conflicting testimony as to the actual location of the easement using a map identified as \u201cCourt\u2019s Exhibit.\u201d The two conflicting locations were shown on the map as a red rectangle and a green rectangle. The rectangles overlapped somewhat with the result being an approximate variance of four and a half feet along the common boundary between the lands of plaintiffs and defendants.\nWhile either rectangle shows a substantial identity of the easement for purposes of acquiring an easement by prescription, a factual issue was presented that was properly for the jury to decide.\nDefendants argue that by answering the issue in the affirmative as to possession under seven years\u2019 color of title, the jury found that the green rectangle showed the boundaries of the easement. We do not agree.\nHad plaintiffs\u2019 issue number 1 been presented to the jury, the jury could have concluded that the easement was contained in the boundaries of the red rectangle. For this reason it was error to withhold this issue from the jury and a new trial must be had to determine only the location of the easement upon the ground.\nV\nPlaintiffs next assign as error the trial court\u2019s omission from the judgment of an award of a fee to the court-appointed surveyor. The amount of the fee is $475.00 and is not in dispute.\nDefendants argue that G.S. 38-4(d) requires that fees for court-appointed surveyors be taxed as part of the costs. We agree.\nThe judgment of the trial court taxed costs to plaintiffs. For this reason it was unnecessary for the trial court to include an award of surveyor\u2019s fees in the judgment. Since the surveyor\u2019s fees are properly part of the costs pursuant to G.S. 384(d), plaintiffs must pay the surveyor\u2019s fees.\nVI\nDefendants cross assign as error the failure of the trial court to direct a verdict in defendants\u2019 favor or to grant defendants\u2019 motion for judgment notwithstanding the verdict concerning the defeasance language in the easement deed from Hallie C. Cozad, widow, et al., to R. D. Rogers, dated 14 June 1948.\nWe note that our decision affirming the jury\u2019s verdict as to defendants\u2019 possession of the easement under seven years\u2019 color of title makes this assignment of error moot.\nThe judgment of the trial court is affirmed except as to that part of the judgment that locates the easement within the green lines on the court map which is reversed.\nBecause it was error for the trial court to refuse to submit plaintiffs\u2019 issue number 1 to the jury, we order a new trial to determine only the location of the easement upon the ground as being within the area marked by the green lines or within the area marked by the red lines on the court map.\nAffirmed in part, reversed in part and remanded for a new trial.\nJudges Webb and Whichard concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Coward, Coward, Dillard and Cabler, by Orville D. Coward, Jr., for plaintiff-appellants.", "Jones, Key, Melvin and Pat\u00f3n, by R. S. Jones, Jr. for defendant-appellants." ], "corrections": "", "head_matter": "WILLIAM L. HIGDON and wife, JANE A. HIGDON v. KENNETH LARRY DAVIS and wife, JENCY L. DAVIS\nNo. 8330SC1337\n(Filed 18 December 1984)\n1. Adverse Possession g 17.1; Deeds g 15.1\u2014 defeasible fee \u2014 reversion to grantors \u2014 subsequent conveyances as color of title\nWhere a deed conveying a driveway easement required, as consideration for the grant of the easement, that the grantee and his heirs and assigns \u201cshall always maintain an all weather drive over said right-of-way\u201d and provided that, if they fail to do so, \u201cthis deed shall be null and void and the rights hereby conveyed shall revert\u201d to the grantors, the title to the easement reverted to the grantors when no driveway had been built and maintained in an all weather condition for seventeen years after the original conveyance, and subsequent conveyances of the easement by deed constituted color of title to the easement.\n2. Adverse Possession g 19; Easements g 6\u2014 doctrine of color of title \u2014 applicability to prescriptive easements\nThe doctrine of color of title is applicable to acquisition of title to an easement by prescription so that one can acquire a prescriptive easement by adverse use for seven years under color of title pursuant to G.S. 1-38. \u2022\n3. Easements g 6.1\u2014 easement by prescription \u2014 hostile use or use under claim of right\nPlaintiffs\u2019 evidence was sufficient for the jury to find that use of a driveway easement was adverse, hostile or under a claim of right rather than permissive where it tended to show that defendants and their immediate predecessors in title used the easement under a claim of right contained in deeds to them although owners of a servient estate attempted on various occasions to block the easement and prevent its use.\n4. Easements g 6.1\u2014 prescriptive easement \u2014 open and notorious use\nThe evidence was sufficient for the jury to find that use of a driveway easement was open and notorious where it tended to show that defendants\u2019 use of the easement was under a claim of right in a deed, that plaintiffs and their predecessors in title had record notice of the easement, and that plaintiffs and their predecessors had attempted to block use of the easement on various occasions.\n5. Adverse Possession g 6; Easements g 6\u2014 prescriptive easement \u2014 color of title \u2014 tacking of successive adverse possessions\nSuccessive adverse users in privity with prior adverse users can \u201ctack\u201d successive adverse possessions of land so as to aggregate the prescriptive period for an easement by prescription under color of title. Therefore, there was sufficient evidence from which the jury could find that adverse use of a driveway easement was continuous and uninterrupted for the prescriptive period of seven years under color of title where the evidence tended to show that defendants and their immediate predecessors in title used the easement for ingress to and egress from the dominant estate from February 1971 until July 1980.\n6. Easements 8 6.1\u2014 prescriptive easement \u2014 substantial identity\nThere was substantial identity of a right-of-way easement where the evidence tended to show that the easement enjoyed by defendants was the same easement granted in the original right-of-way deed, there was evidence from two surveyors as to the actual location of the easement upon the ground, and defendants offered evidence that they had paved a driveway within the confines of the easement.\n7. Appeal and Error 8 32\u2014 submission of issue \u2014 absence of objection \u2014 failure to include instruction in record on appeal\nThe appellate court will not consider an assignment of error that the trial court erred in submitting to the jury an issue of adverse possession of an easement under color of title for seven years where there was no objection at trial to the submission of this issue and the court\u2019s instructions to the jury are not in the record on appeal.\n8. Deeds 8\u00a7 8.1, 9\u2014 sufficiency of consideration for deed\nThe bare assertions of two grantors of a right-of-way deed that they did not receive money and the assertion of a witness that her husband did not receive money was insufficient to rebut the presumption of consideration arising from the recitation in the deed that it was given \u201cin consideration of the sum of One Dollar to them in hand paid, and other valuable consideration, receipt of which is hereby acknowledged,\u201d since there were other grantors not testifying who could have received monetary consideration. Furthermore, a promise in the deed by the grantees to construct and maintain an all weather driveway in the right-of-way constituted sufficient consideration for the deed so that it was not a deed of gift.\n9. Easements 8 7.2\u2014 issue as to location of easement\nWhere a court-appointed surveyor and a surveyor for defendants offered conflicting testimony as to the actual location of an easement, the trial court erred in failing to submit to the jury an issue tendered by plaintiffs as to which location was the correct one.\n10.Costs 8 4\u2014 surveyor\u2019s fees as part of costs\nFees for a court-appointed surveyor are required by G.S. 38-4(d) to be taxed as part of the costs, and where the judgment of the trial court taxed the costs to plaintiffs, the plaintiffs must pay the surveyor\u2019s fees although no specific award of surveyor\u2019s fees was included in the judgment.\nAppeal by plaintiffs from Cornelius, Judge. Judgment entered 5 August 1983 in Superior Court, MACON County. Heard in the Court of Appeals 28 September 1984.\nThis is an action to quiet title in which plaintiffs, William L. and Jane A. Higdon, alleged in their complaint filed 29 July 1980 that they were owners of certain land located in Macon County in which defendants, Kenneth L. and Jency L. Davis, claimed an easement adverse to plaintiffs\u2019 title. Plaintiffs requested that defendants\u2019 claim be determined and title quieted in plaintiffs.\nThe evidence at trial tends to show that plaintiffs and defendants hold title to their respective lands from a common source. By right-of-way deed dated 14 June 1948, plaintiffs\u2019 predecessor in title, Hallie C. Cozad, widow, and others, conveyed to defendants\u2019 predecessor in title, R. D. Rogers, an easement for a 12' wide roadway across plaintiffs\u2019 predecessors\u2019 lands.\nIn the right-of-way deed immediately following the description of the easement, the following appears:\nThis right of way is given to the party of the second part [defendant\u2019s predecessor in title] for the purpose of constructing a graveled driveway to the property of party of the second part, and the parties of the first part [plaintiffs predecessor in title] reserve unto themselves, their heirs and assigns, the right in common with party of the second part, to use said right of way for ingress and egress to their property . . .\nThe consideration for which this right of way deed is made is that party of the second part, his heirs and assigns, shall always maintain an all weather drive over said right of way and should they fail to do so this deed shall be null and void and the rights hereby conveyed shall revert to parties of the first part, their heirs and assigns.\nThe easement for a driveway and the conditions associated with it have been passed by deed along defendants\u2019 chain of title. The land and the easement were deeded to defendants by their immediate predecessor in title on 5 January 1976.\nThe owners and the dates they took title in defendants\u2019 chain of title are listed in reverse order as follows:\nEmmerson G. and Marjorie H. Crawford \u2014 10 February 1971\nL. C. and Frances Higdon \u2014 8 September 1965\nMarshall and Freddie McElroy \u2014 19 August 1965\nW. G. and Avis Hall-21 July 1948\nR. D. and Ellen Rogers \u2014 21 May 1946\nR. D. and Ellen Rogers received title to the easement by right-of-way deed dated 14 June 1948. This right-of-way deed was not registered until 10 June 1959.\nThere was conflicting testimony at trial as to whether defendants and their predecessors in title had constructed a gravel driveway within a reasonable time and whether there always had been maintained an all weather driveway as required by conditions in the right-of-way deed. There was also conflicting evidence as to the easement\u2019s actual location on the ground.\nThe case was tried before a jury which answered the issues submitted as follows:\n1. Did the Defendants and their predecessors in title fail to construct within a reasonable time a driveway, and thereafter, fail to always maintain the same in an all-weather condition, as contemplated in the easement deed from Hallie C. Cozad and others to R. D. Rogers dated June 14, 1948?\nThe jury answered this issue \u201cyes.\u201d\n2. Have Defendants and their predecessors in title acquired an easement over the land of the Plaintiffs by adverse use of the road . . . fort a period of 20 years before this action was filed on July 29, 1980?\nThe jury answered this issue \u201cno.\u201d\n3. Did Defendants and their predecessors in title acquire an easement over the land of the Plaintiffs by adverse use of the road ... for a period of 7 years under the easement deed from R. D. Rogers and wife to W. G. Hall and wife?\nThe jury answered this issue \u201cyes.\u201d\nPlaintiffs appeal. Defendants cross appeal assigning as error the denial of defendants\u2019 motion for directed verdict and judgment notwithstanding the verdict concerning the issue of the defeasance language in the easement deed from Hallie C. Cozad and others to R. D. Rogers, dated 14 June 1948.\nCoward, Coward, Dillard and Cabler, by Orville D. Coward, Jr., for plaintiff-appellants.\nJones, Key, Melvin and Pat\u00f3n, by R. S. Jones, Jr. for defendant-appellants." }, "file_name": "0640-01", "first_page_order": 674, "last_page_order": 694 }