Even though a path across a sandy beach tract was vague and ill-defined, a jury could find its identity was substantial enough to satisfy the criteria for an easement by prescription, the North Carolina Supreme Court has ruled.
This is so, the court said, even though the landowner took measures to interrupt the continued use of his property.
The case, Concerned Citizens of Brunswick County Taxpayers Association v. State ex rel. Rhodes (North Carolina Lawyers Weekly No. NS0844 – 33 pages), was handed down June 12. It reverses a Court of Appeals ruling that said that no easement right existed. (North Carolina Lawyers Weekly No. NA1394 – 13 pages; see August 21, 1989 Lawyers Weekly, page 16).
Justice Louis B. Meyer’s majority opinion said the trial court erred by applying a ‘definite and specific line of travel’ test, and in finding that the plaintiffs had failed to establish a single definite line of travel over the prescriptive period.
The high court said the trial court should have used the ‘substantial identity’ test. The case was remanded to determine if evidence was sufficient to establish the existence of an easement using that criteria.
In a secondary issue, the court said the trial court erred in finding that the landowner had successfully interrupted adverse use by the public so as to defeat an easement by prescription.
In a dissent, Justice Burley B. Mitchell argued that evidence was sufficient to find that the defendant landowner had interrupted the public’s use of the property so as to prevent the creation of a prescriptive easement. Justices John Webb and Willis P. Whichard joined with Justice Mitchell.
The defendant’s lawyer, Wilmington attorney Vaiden P. Kendrick, said the decision raised a serious question as to what a property owner must do to block unauthorized crossings of his land.
‘The opinion cites numerous attempts by the landowner to protect his property and numerous actions by others to get around his attempts, including riding past a guard in one instance,’ he said. ‘Given the court’s decision, it’s extremely difficult to answer the question of what a landowner can do to protect his property.
The case involved a road known as Ocean View Boulevard West located on Holden Beach, a sandy barrier island in Brunswick County. Until the early 1960s, the land on the far western end of Holden Beach was jointly owned by two families.
In 1962, Holden Beach Realty Corporation, predecessor to defendant landowner, purchased what is now Holden Beach Subdivision West, over which Ocean View Boulevard West is situated.
In the 1940s, the state began paving an east-west road across Holden Beach. By the early 1980s, the state had paved the road up to the landowner’s property. Meanwhile, the landowner, at its own expense, had laid a marl road from the boundary of its property to within 1,800 yards of Shallotte Inlet. The road was paved in 1985. This improved extension of Ocean Boulevard over the defendant’s property was the road over which the public claimed an easement. A group calling themselves Concerned Citizens brought suit to enforce the easement.
At trial the plaintiffs presented evidence that the public had used the extension now known as Ocean View Boulevard West to gain access to Shallotte Inlet in the 1920s and 1930s, and that the public continued to use the extension after the landowner began developing it. They also said that the town of Holden Beach used the path for public purposes such as police and fire protection and garbage collection. Their aerial photographs tended to show a definite and discernible pathway over the extension to Shallotte Inlet.
The landowner countered that the land had a reputation as being private property and that the landowner had successfully curtailed use of the property with the erection of various barriers.
The trial judge found:
that the plaintiffs had not established ‘a definite and specific line of travel for twenty years’ over the claimed easement;
that the landowner had interrupted any use over the prescriptive period;
and that there had been no offer and acceptance of dedication of the extension.
The Court of Appeals affirmed on all points.
Justice Meyer, citing West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985), said that six requirements must be met to establish an easement by prescription. One of these is that there be substantial identity of a claimed easement. Saying that the trial judge made no finding as to substantial identity of a specific line of travel, the court reversed and remanded for such a determination.
‘Whether changes in a traveled way are so great as to establish that there is no substantial identity of the way claimed is a question for the trier of fact,’ the majority wrote.
The majority said a trial judge could consider the vulnerability of the claimed easement to natural forces in a situation such as this, ‘… where the easement claimed is across windswept, shifting sands which are subject to ocean storms.’ Requiring that there be little or no change in such a claimed easement would effectively bar the attainment of a prescriptive easement in many coastal areas, according to the opinion.
The opinion said ‘substantial identity’ would still give an owner sufficient notice of an adverse claim. It noted that slight changes in a claimed easement to suit a property owner, such as the marling and paving of the pathway which occurred in this case, would not be enough to defeat a prescriptive easement.
Patrick Hetrick, dean of Campbell University School of Law and co-editer of Webster’s Real Estate Law in North Carolina, agreed with the court that the substantial identity test does justice to the facts in the case.
‘The ‘specific line of travel’ test would be impossible to meet in a situation such as this where nature constantly changes the land,’ he said.
Hetrick concurred with the court’s opinion that a landowner would still be put on notice by somebody using his land consistently over a period of years.
‘Of course, if people are traveling helter-skelter, 17 or 18 different ways over land, there is no easement by prescription,’ he said.
Hetrick said the case boils down to the question of whether or not courts are still going to recognize prescriptive easements in vulnerable areas such as those found on the state’s coast.
The Supreme Court also disagreed with both lower courts in their ruling that evidence was sufficient to establish that the landowner had successfully interrupted continuous use by the public.
While acknowledging that the landowner had taken repeated steps to bar access to its property, the high court said all these measures had been met with hostility from the public. For example, the 40 or 50 ‘No Trespassing’ signs erected in 1960 were used by the public for firewood.
Other efforts met similar fates. A telephone-pole barrier was bypassed so many times that deep ditches were dug out at either end of the pole. Gates and cables thelandowner strung up were likewise ignored or destroyed.
Citing Thompson on Real Property, the court said a barrier would not negate the continuity of use finding unless it actually prevented use of the claimed route.
The court also cited Webster’s Real Estate Law in North Carolina where it said that continuity of use need not be perpetual and unceasing: ”The continuity requirement is that the use be exercised more or less frequently, according to the purpose and nature of the easement.” Webster’s § 321, at 390 (3d edition, 1988).
Pointing out that ineffective interruptions will not prevent the ripening of an easement, the court held that the trial court erred in concluding that evidence established the interruption of continuous use by the public.
The dissent focused on the ‘interruption of continuous use’ issue. Justice Mitchell said evidence was sufficient to find that the physical barriers erected by the landowner interrupted the full and free enjoyment of the claimed easement. Pointing to Webster’s, the dissent said an interruption, no matter how brief, is enough to defeat the continuity of use. The barriers here remained intact for several months or years, Mitchell said.
‘The mere fact that some of the plaintiffs may have been able at times to break down or circumvent the physical barriers erected to prevent unauthorized persons from coming on defendant’s property ‘ which is all the plaintiffs’ evidence tended to show ‘did not prevent the trial court from properly making findings and conclusions to the effect that the defendant and its predecessor in interest had, on numerous occasions for varying periods of time, prevented the full and free enjoyment of the easement by the plaintiffs,’ the dissent said.
Defendant’s attorney Kendrick said the case presents special difficulties for a person who owns land other than in his immediate physical surroundings.
‘It’s one thing to protect your own backyard. But what do you do when you own a farm or when you own property in another county?’ he asked.
Kendrick said he would continue litigation, but at this point he was not sure what his next step would be.
University of North Carolina law professor John V. Orth, who teaches real property law, said that taking legal action against one or more of those using the property may have been the only way to block the easement. But he said that ironically the hostility requirement is strengthened with such emphasis.
Orth said the holding of the case did not surprise him.
‘The difference between the holdings of the trial court and the Supreme Court is based on where sympathies lie,’ he said.
Orth said that for a long time courts were not willing to find prescriptive easements and would thus strain for a narrow interpretation of the rules. Modern courts are more flexible, he said, because of more competing interests.
Orth said a landowner would have a hard time successfully blocking adverse use in a case such as this where the public was involved.
‘In the classic easement by prescription case, only one person is taking hostile action,’ Orth observed. ‘What puts the landowner over the barrel in a case such as this where the public is involved is that you’ve got trouble deciding whom to stop and sue.’