Real Property – Prescriptive Easements – Hostility – Permissive Use

Mason v. Cline (Lawyers Weekly No. 15-16-0260, 7 pp.) (Chris Dillon, J.) Appealed from Catawba County Superior Court (Anderson Cromer, J.) N.C. App. Unpub.

Holding: Even if the trial court chose not to credit defendants’ evidence that their predecessors gave plaintiff’s predecessors permission to use defendants’ land for ingress and egress to plaintiff’s landlocked lot, plaintiff failed to rebut the presumption of permissive use with his “positive” evidence: (1) the placement of power poles on defendants’ land which provided utilities to plaintiff’s property and (2) the deposit of asphalt onto the road.

We reverse the trial court’s judgment, which determined that a prescriptive easement exists in favor of plaintiff.

A plaintiff claiming a prescriptive easement must prove, among other things, that the use of the easement was adverse, hostile, or under a claim of right.

Our courts follow the minority rule, presuming that prescriptive use is permissive rather than hostile, thereby placing the burden on the party claiming the easement to rebut this presumption with evidence that his use was hostile. In the absence of positive evidence evincing an adverse, hostile use or claim of right over another’s land sufficient to put the owner on notice, the presumption of permissive use is not rebutted, and the claimant is not entitled to a prescriptive easement.

Defendants presented testimony that their predecessors, the Millers, had granted plaintiff’s predecessors, the Wilsons, permission to use the road over the Millers’ land. One of the Wilsons testified about a conversation in which her grandmother was granted permission to use the road for as long as the family continued to reside there.

There was no conflicting testimony on this point. Although the trial court, sitting as the trier of fact, was entitled not to credit the testimony, it was not free to disregard the presumption of permissive use where there was no competent evidence to rebut it.

Plaintiff’s “positive evidence” was insufficient to establish hostile use.

The placement of utility poles might be evidence of an easement for utilities, but it cannot be cited as evidence to create a prescriptive easement for ingress and egress.

Regarding the “deposit of asphalt,” there is no evidence that any of plaintiff’s predecessors made this improvement. The only evidence was that a member of the Miller family, not the Wilson family, made this improvement. No reasonable mind would accept that the improvement made by a landowner to a road on his own land constitutes positive evidence that the use of this road by others is hostile.

Plaintiff failed to produce positive evidence to rebut the presumption of permissive use, so the trial court erred in entering judgment in favor of plaintiff and in not entering judgment in favor of defendants.

Reversed.