Wright v. Oakley (Lawyers Weekly No. 12-16-0292, 17 pp.) (Martha A. Geer, J.) Appealed from Rowan County Superior Court. (Lucy N. Inman, J.) N.C. App. Unpub. Full-text opinion.
Holding: Even though the disputed area between the parties’ lots contained a clothesline erected by plaintiffs and a utility pole marked with plaintiffs’ address, plaintiffs did not erect the utility pole, and the parties both used the clothesline.
We affirm the trial court’s ruling that plaintiffs failed to establish adverse possession of the disputed area.
For years, although plaintiffs mowed the boundary area between the parties’ lots, both parties used the clothesline plaintiffs had erected there, and defendants’ daughter played with plaintiffs’ great-grandchildren in that area.
After the parties’ relationship soured, defendants had the boundary area surveyed and discovered that a triangular piece of land they had believed belonged to plaintiffs was actually part of defendants’ lot. Defendants began mowing the disputed property and placed planters on it.
In addition, defendants had provided water from their well to plaintiffs for a small fee. After the parties’ relationship soured, defendants warned plaintiffs they might increase the fee. Plaintiffs had a well dug on their property.
Plaintiffs filed this action, alleging that they owned the disputed property by adverse possession and that defendants engaged in unfair trade practices.
The trial court based its conclusion that plaintiffs had failed to show exclusive and hostile possession of the disputed area for any continuous period between 1979, when defendant Gary Oakley purchased his property, and 2005, when the survey was done, on its finding that plaintiffs did not erect the utility pole, that the clothesline was used by both families, and neither the pole nor the clothesline was erected in order to delineate the property line.
Even though plaintiffs mowed the disputed property, the disputed area was unfenced. There was testimony that “all the kids in the neighborhood would gather,” without regard to property lines, to play, and both families used the clothesline.
Given the evidence in this case, the trial court did not err in concluding that plaintiffs did not establish their claim of adverse possession.
Unfair Trade Practices
The evidence showed that defendants provided water as an accommodation for neighbors, and there was no evidence that defendants were in the business of selling or leasing access to water. Not every transaction that includes the payment of money automatically is “in or affecting commerce.”
We hold that the trial court properly concluded that defendants’ provision of water to plaintiffs for a nominal annual fee was not a business activity “in or affecting commerce.” Therefore, the trial court properly dismissed plaintiffs’ claim for unfair trade practices.