{ "id": 8622443, "name": "DELIA McCRACKEN and Husband, C. D. McCRACKEN, v. ZEB CLARK and Wife EVA CLARK, GROVER CLARK and Wife CATHERINE CLARK, and RAYMOND McCRACKEN and Wife PEARL McCRACKEN", "name_abbreviation": "McCracken v. Clark", "decision_date": "1952-02-27", "docket_number": "", "first_page": "186", "last_page": "187", "citations": [ { "type": "official", "cite": "235 N.C. 186" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "20 S.E. 2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628055 ], "opinion_index": 0, "case_paths": [ "/nc/221/0432-01" ] }, { "cite": "87 S.E. 224", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658874 ], "opinion_index": 0, "case_paths": [ "/nc/170/0305-01" ] }, { "cite": "12 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624603 ], "opinion_index": 0, "case_paths": [ "/nc/218/0736-01" ] }, { "cite": "39 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621524 ], "pin_cites": [ { "page": "p. 497" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0492-01" ] }, { "cite": "29 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600394 ], "pin_cites": [ { "page": "p. 292" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0289-01" ] }, { "cite": "170 S.E. 662", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627421 ], "opinion_index": 0, "case_paths": [ "/nc/205/0177-01" ] } ], "analysis": { "cardinality": 285, "char_count": 3917, "ocr_confidence": 0.49, "pagerank": { "raw": 1.374559812916973e-07, "percentile": 0.6392113980390363 }, "sha256": "7d6ac887707f5c2f8814e7d16773bbb0ed27eeba0437a2bceb3e37e20131da07", "simhash": "1:33b27416102c060b", "word_count": 677 }, "last_updated": "2023-07-14T17:52:11.505162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DELIA McCRACKEN and Husband, C. D. McCRACKEN, v. ZEB CLARK and Wife EVA CLARK, GROVER CLARK and Wife CATHERINE CLARK, and RAYMOND McCRACKEN and Wife PEARL McCRACKEN." ], "opinions": [ { "text": "JOHNSON, J.\nTbe trial court erred in directing tbe verdict on tbe second issue. On that issue, tbe burden of proof was upon tbe defendants. This being so, they were not entitled to a directed instruction.\nTo establish tbe easement claimed by tbe defendants tbe burden of proof was upon tbem to satisfy tbe jury by tbe greater weight of tbe evidence that tbe user relied on was hostile in character, rather than permissive and with tbe owners\u2019 consent. McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Chesson v. Jordan, 224 N.C. 289, p. 292, 29 S.E. 2d 906. \u201cPermissive use is presumed until tbe contrary is made to appear.\u201d Speight v. Anderson, 226 N.C. 492, p. 497, 39 S.E. 2d 371.\nIt is established by many authoritative decisions of this Court that a directed instruction in favor of tbe party having tbe burden of proof is forbidden. Haywood v. Ins. Co., 218 N.C. 736, 12 S.E. 2d 221, and cases cited.\nWe have not overlooked tbe defendants\u2019 contention that they acquired an easement by implied grant. As to this phase of tbe case, tbe burden of proof was nonetheless on tbe defendants. 17 Am. Jur., Easements, Sec. 54 (see also sections 32, 33, and 48); Carmon v. Dick, 170 N.C. 305, 87 S.E. 224; Ferrell v. Trust Co., 221 N.C. 432, 20 S.E. 2d 329.\nNew trial.", "type": "majority", "author": "JOHNSON, J." } ], "attorneys": [ "W. B. Francis and Jojies \u2022& Ward for plaintiffs, appellants.", "James H. Howell, Jr., Morgan -& Ward, and Glenn W. Brown for defendants, appellees." ], "corrections": "", "head_matter": "DELIA McCRACKEN and Husband, C. D. McCRACKEN, v. ZEB CLARK and Wife EVA CLARK, GROVER CLARK and Wife CATHERINE CLARK, and RAYMOND McCRACKEN and Wife PEARL McCRACKEN.\n(Filed 27 February, 1952.)\n1. Trial \u00a7 29\u2014\nA verdict may not be directed in favor of tbe party upon wbom rests tbe burden of proof.\n2. Easements \u00a7\u00a7 2, 3\u2014\nWhere, in an action in trespass, defendants plead adverse user and an easement by implied grant to use tbe roadway across plaintiffs\u2019 land, tbe burden of proving these affirmative defenses is upon defendants and it is error for tbe court to direct a verdict in their favor upon these defenses.\nAppeal by plaintiffs from Budisill, J., and a jury, September Term, 1951, of Haywood.\nCivil action in trespass to enjoin the defendants from continuing to use a roadway leading from their lands over and across those of the plaintiffs to a public road, and for damages.\nThe defendants allege by way of affirmative defense that by adverse use of the roadway by themselves and their predecessors in title over a long period of years they have acquired an easement in the roadway, entitling them to use it as a matter of right.\nOn the issue of prescriptive easement thus raised by the pleadings, the evidence offered in the court below was conflicting. The defendants\u2019 evidence tends to show that the character of the user through the years has been hostile, adverse, and as of right, and so recognized by the plaintiffs and their predecessors in title for near unto a century.\nThe plaintiffs, on the other hand, offered evidence tending to show that through the years the roadway has been no more than a permissive neighborhood cartway.\nIssues were submitted to and answered by tbe jury as follows:\n\u201c1. Are tbe plaintiffs tbe owners and in possession of tbe land described in tbe complaint? Answer: 'Yes.\u2019 (Ey tbe court in accordance with tbe admissions in tbe defendants\u2019 answer.)\n\u201c2. Have tbe defendants acquired an easement in tbe road over said lands entitling tbem to use tbe roadway in controversy without bars or gates or other obstructions thereon ? Answer : \u2018Yes.\u2019 \u201d\nTbe court directed tbe verdict as to tbe second issue by giving tbe following instruction: \u201cUnder tbe evidence we have beard, and under tbe law as I understand tbe law to be, I direct you to answer that issue 'Yes.\u2019 \u201d Tbe plaintiffs\u2019 exception to this directed instruction is brought forward and urged as their chief assignment of error.\nFrom judgment entered on tbe verdict, tbe plaintiffs appealed, assigning errors.\nW. B. Francis and Jojies \u2022& Ward for plaintiffs, appellants.\nJames H. Howell, Jr., Morgan -& Ward, and Glenn W. Brown for defendants, appellees." }, "file_name": "0186-01", "first_page_order": 236, "last_page_order": 237 }