{ "id": 8359040, "name": "GRACE W. CURD, Trustee under Trust Agreements between Thomas H. S. Curd, Jr., Grantor, and Grace W. Curd as Trustee for the benefit of Grace Chandler Curd, dated November 18, 1974, and recorded in Deed Book 565, page 658, in the office of the Register of Deeds for Rowan County, North Carolina; for the benefit of Thomas H. S. Curd, III dated November 18, 1974, and recorded in Deed Book 565, page 659, in the office of the Register of Deeds for Rowan County, North Carolina; and for the benefit of Walter H. S. Curd, dated November 18, 1974, and recorded in Deed Book 565, page 660, in the office of the Register of Deeds for Rowan County, North Carolina v. JOHN ELMER WINECOFF, JR., and wife, JIMMIE E. WINECOFF; CARMI L. WINECOFF and wife, GERTRUDE WINECOFF; RAY E. WINECOFF and wife, LORRAINE WINECOFF; LUCILLE W. WALLACE and RONALD W. ISENHOUR", "name_abbreviation": "Curd v. Winecoff", "decision_date": "1988-02-16", "docket_number": "No. 8719DC535", "first_page": "720", "last_page": "725", "citations": [ { "type": "official", "cite": "88 N.C. App. 720" } ], "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": "356 S.E. 2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749092, 4745836, 4743052, 4744786, 4746645 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0671-05", "/nc/319/0671-02", "/nc/319/0671-04", "/nc/319/0671-03", "/nc/319/0671-01" ] }, { "cite": "352 S.E. 2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 399", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168588 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0399-01" ] }, { "cite": "201 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563409 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0576-01" ] }, { "cite": "273 S.E. 2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569981 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0663-01" ] }, { "cite": "58 N.C.L. Rev. 223", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1980, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "170 S.E. 2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "6 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549046 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0497-01" ] }, { "cite": "318 S.E. 2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "863" }, { "page": "863" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 95", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520482 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "98" }, { "page": "97-98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0095-01" ] }, { "cite": "304 S.E. 2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "63 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524529 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/63/0169-01" ] }, { "cite": "98 S.E. 2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626016 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0298-01" ] }, { "cite": "173 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561836 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0487-01" ] }, { "cite": "143 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574416 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0061-01" ] }, { "cite": "143 S.E. 2d 270", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574473 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0086-01" ] }, { "cite": "83 L.Ed. 2d 69", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "469 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11986627, 11987263, 11986985, 11986410, 11986347, 11986733, 11986478, 11987055, 11986541, 11986902, 11986681, 11987165, 11986815 ], "year": 1984, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/469/0835-05", "/us/469/0835-13", "/us/469/0835-10", "/us/469/0835-02", "/us/469/0835-01", "/us/469/0835-07", "/us/469/0835-03", "/us/469/0835-11", "/us/469/0835-04", "/us/469/0835-09", "/us/469/0835-06", "/us/469/0835-12", "/us/469/0835-08" ] }, { "cite": "315 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "310 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400620, 2393484, 2400656, 2401979, 2401148 ], "year": 1984, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0624-02", "/nc/310/0624-05", "/nc/310/0624-01", "/nc/310/0624-03", "/nc/310/0624-04" ] }, { "cite": "310 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523284 ], "year": 1983, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0242-01" ] }, { "cite": "290 S.E. 2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "305 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571060 ], "year": 1982, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0446-01" ] } ], "analysis": { "cardinality": 548, "char_count": 10201, "ocr_confidence": 0.832, "pagerank": { "raw": 1.5381899999302554e-07, "percentile": 0.6723780035052237 }, "sha256": "2eb74292a7a2d4d9fe8b82a7248027815e5834e2ca68ff3b080bc5593aa07ba1", "simhash": "1:b2a2564272662b5c", "word_count": 1716 }, "last_updated": "2023-07-14T22:20:42.285314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Johnson concur." ], "parties": [ "GRACE W. CURD, Trustee under Trust Agreements between Thomas H. S. Curd, Jr., Grantor, and Grace W. Curd as Trustee for the benefit of Grace Chandler Curd, dated November 18, 1974, and recorded in Deed Book 565, page 658, in the office of the Register of Deeds for Rowan County, North Carolina; for the benefit of Thomas H. S. Curd, III dated November 18, 1974, and recorded in Deed Book 565, page 659, in the office of the Register of Deeds for Rowan County, North Carolina; and for the benefit of Walter H. S. Curd, dated November 18, 1974, and recorded in Deed Book 565, page 660, in the office of the Register of Deeds for Rowan County, North Carolina v. JOHN ELMER WINECOFF, JR., and wife, JIMMIE E. WINECOFF; CARMI L. WINECOFF and wife, GERTRUDE WINECOFF; RAY E. WINECOFF and wife, LORRAINE WINECOFF; LUCILLE W. WALLACE and RONALD W. ISENHOUR" ], "opinions": [ { "text": "ORR, Judge.\nPlaintiff filed suit in February 1986 to acquire title to defendants\u2019 property by adverse possession.\nIn her complaint, plaintiff alleged she and her predecessors in title had constructed buildings on and fenced in 3.276 acres owned by defendants lying east of a line between points 187 and 273 as shown on a map introduced at trial. Plaintiff further alleged that the use of this property had been open, notorious, hostile, adverse and continuous for more than twenty years. Defendants denied plaintiffs material allegations and counterclaimed for a permanent easement over plaintiffs roadway for access to their property.\nAfter hearing the evidence without a jury, the trial court made findings of fact and conclusions of law. Based upon these findings and conclusions, the trial court awarded plaintiff (1) title to defendants\u2019 land west of the line lying between points 49 and 273 and (2) a permanent easement over a private roadway constructed by plaintiff on defendants\u2019 property. The trial court awarded defendants a permanent easement over a roadway on plaintiffs property.\nFrom this judgment, plaintiff appeals.\nPlaintiff contends on appeal that the trial court\u2019s findings of fact are insufficient to support two of its conclusions of law.\nG.S. \u00a7 1A-1, Rule 52(a)(1) of the Rules of Civil Procedure requires a trial judge hearing a case without a jury to make findings of fact and conclusions of law. To comport with Rule 52(a)(1), the trial court must make \u2018a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment.\u2019 Quick v. Quick, 305 N.C. 446, 290 S.E. 2d 653 (1982) (citation omitted). Rule 52(a)(1) does not require recitation of evidentiary facts, but it does require specific findings on the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.\nChemical Realty Corp. v. Home Fed\u2019l Savings & Loan, 65 N.C. App. 242, 249, 310 S.E. 2d 33, 37 (1983), disc. rev. denied, 310 N.C. 624, 315 S.E. 2d 689, cert. denied, 469 U.S. 835, 83 L.Ed. 2d 69 (1984) (citations omitted).\nWhen the conclusions of law are unsupported by determinative facts, the case must be remanded to the trial court for further findings. Bank v. Insurance Co., 265 N.C. 86, 143 S.E. 2d 270 (1965); Mills, Inc. v. Transit Co., 265 N.C. 61, 143 S.E. 2d 235 (1965).\nI.\nFirst plaintiff challenges Conclusion of Law No. 3, which addresses her claim for adverse possession and concludes:\nThe Plaintiff is not entitled to any portion of the property lying to the east of the line between points 49 and 273 by adverse possession.\nTo support this conclusion the trial court\u2019s findings must find as a fact that plaintiff failed to establish one or more of the essential elements necessary for the adverse possession of this specific piece of property.\nTo acquire title to land through adverse possession, plaintiff must show actual, open, hostile, exclusive, and continuous possession of the land claimed for twenty years under known and visible lines and boundaries. Board of Education v. Lamm, 276 N.C. 487, 173 S.E. 2d 281 (1970); Scott v. Lewis, 246 N.C. 298, 98 S.E. 2d 294 (1957); Casstevens v. Casstevens, 63 N.C. App. 169, 304 S.E. 2d 623 (1983); N.C.G.S. \u00a7 1-40 (1983).\nThe trial court\u2019s Finding of Fact No. 6 discusses the contested property forming part of plaintiffs yard, lying east of points 273 and 49 and finds:\nA certain portion of the yard which has been used and maintained by the Plaintiff extends to the east of the line between points 273 and 49; that Plaintiffs tenant, Albert Morgan testified that he never considered such portion as owned by Plaintiffs.\nThis finding does not specify what factual basis the trial court relied on in reaching its Conclusion of Law No. 3.\nAccordingly, we conclude the trial court\u2019s findings were insufficient to support Conclusion of Law No. 3.\nNext plaintiff challenges Conclusion of Law No. 4, which addresses defendants\u2019 claim for an easement across plaintiffs property and concludes:\nThe Defendants are entitled to a permanent easement and right of way across Plaintiffs property, in the exact location as evidence upon the ground will show the use of said roadway, to be determined by a later survey, if desired.\nDefendants, in the case sub judice, may acquire an easement over plaintiffs property either by implication or by prescription.\nAn easement [by implication] is generally established by proof: (1) that there was common ownership of the dominant and servient parcels and a transfer which separates that ownership; (2) that, before the transfer, the owner used part of the tract for the benefit of the other part, and that this use was apparent, continuous and permanent; and (3) that the claimed easement is \u2018necessary\u2019 to the use and enjoyment of the claimant\u2019s land.\nKnott v. Washington Housing Authority, 70 N.C. App. 95, 98, 318 S.E. 2d 861, 863 (1984); Dorman v. Ranch, Inc., 6 N.C. App. 497, 170 S.E. 2d 509 (1969).\n\u201c[A]n \u2018easement from prior use\u2019 may be implied \u2018to protect the probable expectations of the grantor and grantee that an existing use of part of the land would continue after the transfer.\u2019 \u201d Knott v. Washington Housing Authority, 70 N.C. App. at 97-98, 318 S.E. 2d at 863, quoting P. Glenn, Implied Easements in the North Carolina Courts: An Essay on the Meaning of \u201cNecessary, \u201d 58 N.C.L. Rev. 223, 224 (1980).\nAn easement by prescription is created by adverse possession. To establish one, defendants must prove: (1) that their use of the roadway was adverse, hostile or under claim of right; (2) that this use was open and notorious such that plaintiff had notice of the claim; (3) that this use has been continuous and uninterrupted for a period of at least twenty years; and (4) that there was substantial identity of the easement claimed throughout the twenty year period. Potts v. Burnette, 301 N.C. 663, 273 S.E. 2d 285 (1981); Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974).\nFurthermore, defendants must rebut the presumption that their use of the road was made with the plaintiffs permission, since a permissive use of a roadway can never ripen into a prescriptive easement. Id.\nTo support Conclusion of Law No. 4, the trial court\u2019s findings of fact must show that defendants fulfilled all the requirements necessary to establish an easement under either theory. Aetna Casualty and Surety Co. v. Younts, 84 N.C. App. 399, 352 S.E. 2d 850, disc. rev. denied, 319 N.C. 671, 356 S.E. 2d 774 (1987); Mills, Inc. v. Transit Co., 265 N.C. 61, 143 S.E. 2d 235.\nThe only finding made by the trial court on defendants\u2019 claim for an easement, said:\nAlthough there are other properties which adjoin the property of the Defendants, the Defendant, J. E. Winecoff, testified that they have used a State maintained road over the last 30 or more years for access to a point within the Plaintiffs property and that their only access from the end of said State road to their property has been over a former logging road, which still appears on the ground as a driveway and which runs from said public road to the western boundary of the Defendant\u2019s property, at a point south of the house and outbuildings maintained by the Plaintiffs tenant farm manager, Albert Morgan, as shown upon the survey map of James T. Hill.\nThis statement fails to list facts from which we can determine whether defendants\u2019 actions were sufficient to establish the essential elements of either an implied or a prescriptive easement.\nConsequently, we find Conclusion of Law No. 4 unsupported by the trial court\u2019s findings of fact.\nFor the above reasons, we vacate the portion of the trial court\u2019s order holding that plaintiff did not adversely possess the land lying east of the line between points 49 and 273 and that defendants were entitled to a permanent easement over plaintiffs property. We remand these two issues to the trial court for further findings of fact in accordance with this opinion.\nVacated and remanded.\nJudges Arnold and Johnson concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Ford & Parrott, by S. Edward Parrott, attorney for plaintiff-appellant.", "No brief for defendant-appellees." ], "corrections": "", "head_matter": "GRACE W. CURD, Trustee under Trust Agreements between Thomas H. S. Curd, Jr., Grantor, and Grace W. Curd as Trustee for the benefit of Grace Chandler Curd, dated November 18, 1974, and recorded in Deed Book 565, page 658, in the office of the Register of Deeds for Rowan County, North Carolina; for the benefit of Thomas H. S. Curd, III dated November 18, 1974, and recorded in Deed Book 565, page 659, in the office of the Register of Deeds for Rowan County, North Carolina; and for the benefit of Walter H. S. Curd, dated November 18, 1974, and recorded in Deed Book 565, page 660, in the office of the Register of Deeds for Rowan County, North Carolina v. JOHN ELMER WINECOFF, JR., and wife, JIMMIE E. WINECOFF; CARMI L. WINECOFF and wife, GERTRUDE WINECOFF; RAY E. WINECOFF and wife, LORRAINE WINECOFF; LUCILLE W. WALLACE and RONALD W. ISENHOUR\nNo. 8719DC535\n(Filed 16 February 1988)\n1. Adverse Possession 8 25.2\u2014 conclusion unsupported by sufficient findings of fact\nIn an action for adverse possession, the trial court\u2019s conclusion that plaintiff was not entitled to a certain portion of property forming a part of plaintiffs yard was not supported by sufficient findings of fact where the only finding was that plaintiffs tenant never considered such portion of the yard to be owned by plaintiff, and the finding did not specify the factual basis the trial court relied on in reaching its conclusion of law.\n2. Easements \u00a7 7.2\u2014 insufficient findings of fact\nThe trial court\u2019s findings of fact failed to list facts from which it could be determined whether defendants\u2019 actions were sufficient to establish the essential elements of either an implied or a prescriptive easement across plaintiffs property.\nAppeal by plaintiff from Montgomery, Judge. Judgment entered 9 January 1987 in District Court, ROWAN County. Heard in the Court of Appeals 1 December 1987.\nFord & Parrott, by S. Edward Parrott, attorney for plaintiff-appellant.\nNo brief for defendant-appellees." }, "file_name": "0720-01", "first_page_order": 748, "last_page_order": 753 }