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Real Property – Description – Question of Law – Civil Practice – Appeals – Preservation of Issues – Prescriptive Easement

 

Woltz v. Taylor. (Lawyers Weekly No. 10-16-0829, 16 pp.) (Barbara Jackson, J.) Appealed from Haywood County Superior Court. (James U. Downs, J.) N.C. App. Unpub.

Holding: What are the boundaries is a matter of law to be determined by the trial court from the description set out in the conveyance. Defendants failed to present competent evidence that the 2-acre tract at issue could be located on the western bank of John’s Creek, and plaintiffs presented competent evidence that the grantor owned only property on the creek’s eastern bank. There was no material controversy over the location of the tract; therefore, the trial court was not required to submit the issue to the jury.

Judgment for plaintiffs is affirmed.

At trial, plaintiff Woltz testified that, if plaintiffs were found to own the 2-acre tract, they would grant defendants an easement over it. Defendants raised only a general objection. On appeal, defendants argue three independent grounds for their objection that were not specified at trial; moreover, defendants did not move to strike Woltz’s testimony. We dismiss defendants’ argument because it has not been preserved for appellate review.

After the trial court gave the jury its final instructions, out of the hearing of the jury, defendants requested that additional instructions be given as to (1) what constitutes abandonment, (2) whether wagons qualify as motor vehicular traffic and (3) whether the 16.5-foot strip should be identified as being on the eastern or western side of John’s Creek. By failing to object to the omission of a jury instruction on tacking at trial, defendants failed to preserve this issue for appellate review.

At trial, defendants asked that the jury instruction on road right-of-way include wagon use, yet on appeal defendants argue that the instruction should have been for general “access to their property.”

Moreover, defendants did not present any evidence of the duration of wagon use across Maple Ford, so the jury could not have found that defendants’ predecessors’ wagon use established an easement by prescription. We dismiss this assignment of error as well.

Affirmed.


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