James R. TAYLOR and wife, Eva Louise Taylor
v.
William G. BRIGMAN and wife, Flossie S. Brigman; Beatrice M. Allen and husband, A. B. Allen; Seivwers Clontz, a/k/a Seivwers Ciszewski.
No. 8028SC741.
Court of Appeals of North Carolina.
June 16, 1981.*84 Marvin P. Pope, Jr., Asheville, for plaintiffs-appellees.
Lawrence T. Jones, Asheville, for defendants-appellants Allen and Clontz.
Erwin, Winner & Smathers by James P. Erwin, Jr., Asheville, for defendants-appellees Brigman.
MORRIS, Chief Judge.
The judgment was in the form of a judgment entered after a hearing before the court as a trier of facts. It found facts and based on those findings of fact, made conclusions of law. We have repeatedly called to the attention of trial judges and lawyers that the court does not find facts upon a motion for summary judgment. It is completely obvious that if the court must find facts in order to make conclusions of law, there must be issues of fact, and the case, therefore, is not one in which summary judgment will lie. Summary judgment will lie only in those cases where there is no genuine issue of material fact. Here the court found as a fact that "the utilization of the roadway by the Plaintiffs has not been permissive by the Defendants Beatrice M. Allen and husband, A. B. Allen, and Seivwers Clontz a/k/a Seivwers F. Ciszewski." There was no stipulation to this fact, and it is necessary to decision, the allegation having been denied by defendants.
The wording of the court's judgment is obscure as to what legal concepts it applied in its determination of the appealing defendants' case. The court's second conclusion of law in which it concluded that plaintiffs were entitled to the right-of-way across defendants' property by virtue of grant to plaintiffs' predecessors in title contained in instruments recorded in Deed Book 469, page 83, and Deed Book 462, page 487, located in the office of the Buncombe County Register of Deeds must be exclusively applied to defendants Brigman. The deeds granting the right-of-way upon which the court based its conclusion are part of the record. These grants are connected only to the chain of title of the Brigman property. There is no evidence whatsoever that any such grants were ever made by the predecessors in title to either the Allen or Clontz properties. Furthermore, counsel for the parties stipulated that no privity of title existed between plaintiffs and defendants Allen and Clontz and defendants Brigman.
The court must have applied the rationale of prescriptive easements to the facts applicable to defendants Allen and Clontz in making its judgment. Therefore, we must determine whether there was a genuine issue of any material fact relative to the question of whether plaintiffs had a prescriptive easement in the right-of-way where it invaded the property of defendants Allen and Clontz. The law with regard to the granting of prescriptive easements was summarized by Justice Huskins in Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974).
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), and cases therein cited.
2. The law presumes that the use of a way over another's land is permissive or with the owner's consent unless the contrary appears. Henry v. Farlow, 238 N.C. 542, 78 S.E.2d 244 (1954); Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946), and cases therein cited.
3. The use must be adverse, hostile, or under a claim of right. Dulin v. Faires, 266 N.C. 257, 145 S.E.2d 873 (1966); Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2 (1926); Mebane v. Patrick, 46 N.C. 23 (1853). "To 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.' [Citations omitted.] A `hostile' use is simply a use of such nature and exercised under such circumstances as to *85 manifest and give notice that the use is being made under a claim of right." Dulin v. Faires, supra. There must be some evidence accompanying the user which tends to show that the use is hostile in character and tends to repel the inference that it is permissive and with the owner's consent. Boyden v. Achenbach, [86 N.C. 397 (1882)] supra. A mere permissive use of a way over another's land, however long it may be continued, can never ripen into an easement by prescription. Nicholas v. Furniture Co., 248 N.C. 462, 103 S.E.2d 837 (1958); Williams v. Foreman, supra.
4. The use must be open and notorious. "The 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." Snowden v. Bell, 159 N.C. 497, 75 S.E. 721 (1912).
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). "The continuity required is that the use be exercised more or less frequently, according to the purpose and nature of the easement." J. Webster, Real Estate Law in North Carolina § 288 (1971). An interruption to an easement for a right-of-way "would be any act, done by the owner of the servient tenement, which would prevent the full and free enjoyment of the easement, by the owner of the dominant tenement...." Ingraham v. Hough, 46 N.C. 39 (1853).
6. There must be substantial identity of the easement claimed. Hemphill v. Bd. of Aldermen, 212 N.C. 185, 193 S.E. 153 (1937). "To establish a private way by prescription, the user for twenty years must be confined to a definite and specific line. While there may be slight deviations in the line of travel there must be a substantial identity of the thing enjoyed." Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946).
284 N.C. at 580-81, 201 S.E.2d at 900-01.
Defendants insist that a question of fact existed as to whether plaintiffs' use of the right-of-way was permissive, or was adverse, hostile or under a claim of right. We agree.
As stated in Dickinson v. Pake, supra, the law presumed that a use is permissive unless the contrary appears. See also, Nicholas v. Furniture Co., 248 N.C. 462, 103 S.E.2d 837 (1958); Henry v. Farlow, 238 N.C. 542, 78 S.E.2d 244 (1953); Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946). A mere permissive use of a way over another person's land, regardless of the length of time the use continues, cannot ever ripen into an easement by prescription. Dickinson v. Page, supra; Dulin v. Faires, 266 N.C. 257, 145 S.E.2d 873 (1966). Plaintiffs argue that the evidence established beyond question that plaintiffs had a claim of right to the right-of-way. They contend that the evidence of the claim of right was sufficient to overcome the presumption of permissiveness as a matter of law.
Plaintiffs contend that the language of the two deeds recorded in Deed Book 469, page 83, and Deed Book 462, page 487, in the office of the Register of Deeds of Buncombe County gave plaintiffs color of title to the roadway. Plaintiffs take the position that the element of color of title automatically gave them a claim of right to the right-of-way which was sufficient to establish their right to a prescriptive easement.
Plaintiff asks us to hold that where a party allegedly holds an easement under color of title, that in itself conclusively establishes as a matter of law that he holds that easement under a claim of right. This we refuse to do.
Hostile or adverse use is simply the use of an alleged easement under such circumstances as to manifest and give notice that the use is being made under claim of right. Dickinson v. Pake, supra. Notice to the owners of the subservient tenement of the existence of the alleged easement is *86 crucial to the concept of holding under a claim of right. Notice of a claim of right could be given in many different ways.
Holding under color of title might be one way of establishing such notice. However, it might not always be conclusive evidence, standing alone, that the landowner has received notice of a claim of right, especially in light of the presumption that the use was permissive.
In the present case the question of whether plaintiff held his easement under a claim of right was for the jury. Plaintiff established his color of title to the right-of-way through two deeds in the chain of title to the Brigman property. There is no evidence of any out conveyances of such an easement in the chains of title of either the Allen or Clontz properties. The general rule with regard to the influence of muniments of title outside of one's own chain of title is as follows:
A purchaser is presumed to have examined each recorded deed or instrument in his line of title and to know its contents. He is not required to take notice of and examine recorded collateral instruments and documents which are not muniments of his title and are not referred to by the instruments in his chain of title. Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197.
Morehead v. Harris, 262 N.C. 330, 340, 137 S.E.2d 174, 184 (1964). Therefore, in this instance, we do not think that the deeds relied on by plaintiff sufficiently afforded defendants Allen and Clontz the notice of a claim of right that would be necessary to overcome the presumption of permissive use and warrant the court's granting summary judgment for plaintiff as a matter of law.
No other evidence of adverse or hostile use sufficient to show a claim of right is present except for the allegation of plaintiffs' complaint that they had neither asked for nor received permission to use the right-of-way, and that defendants had at times allowed branches and limbs to fall into the lane with the intent to discourage plaintiffs' use of the right-of-way.
In light of the presumption in cases of prescriptive easement that the use is permissive, we think that in this case this was a genuine issue of material fact that would have been best left to the jury. Therefore, we reverse the court's order granting summary judgment for plaintiff and remand this case to the Superior Court for trial.
Reversed and remanded.
ROBERT M. MARTIN and WHICHARD, JJ., concur.