Real Property – Easements – Statutes of Limitations – Adverse Possession – Injury to Incorporeal Hereditament – Rule 41(a)

Lewis v. Hedgepeth (Lawyers Weekly No. 012-061-17, 14 pp.) (Richard Dietz, J.) Appealed from Currituck County Superior Court (Marvin Blount III, J.) N.C. App. Unpub.

Holding: Although our state’s appellate courts have not yet expressly addressed whether an easement can be extinguished after the seven-year period for adverse possession under color of title has elapsed, our Supreme Court in Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973), discussed – at length – how the seven-year prescriptive period would apply and what steps a purchaser must take to properly review the chain of title. We find it unlikely that our Supreme Court would undertake this analysis if the seven-year prescriptive period were inapplicable to begin with, so we reject defendant’s argument that the seven-year prescriptive period of adverse possession under color of title does not apply to claims to extinguish an easement.

However, there is a genuine issue of material fact as to whether defendant’s claimed easement appears in her chain of title.

We reverse summary judgment for plaintiff and remand for further proceedings.

While plaintiff’s own deed makes no reference to defendant’s alleged easement, one deed in her chain of title refers to a “lane” in roughly the location of defendant’s purported easement, and another deed in the chain refers to a map which depicts an “access lane” in roughly the same location. In fact, the subdivision plat which identifies plaintiff’s lot and is expressly referenced in her deed refers to a separate map, which contains a “25’ Easement For Utilities and Ingress & Egress.”

These references to a lane, access road or easement do not conclusively establish that the easement exists, that it is located where defendant contends, or that it extends from the public highway to defendant’s property. But the maps and an affidavit from a surveyor create genuine issues of material fact concerning whether the references to the purported easement preclude plaintiff’s claim that she took the property free of the easement under color of title. The trial court erred in granting summary judgment based on expiration of the seven-year statute of limitations in G.S. § 1-38.

In Duke Energy Carolinas, LLC v. Gray, 789 S.E.2d 445 (2016), our Supreme Court overturned this court’s line of cases and ruled that, while an easement permitting access across another property is an incorporeal hereditament, it is also real property. Therefore, a claim to remove an obstruction blocking the easement (e.g., plaintiff’s trees and bushes in the path of the purported easement) is not a claim for damages for an injury to the easement; instead, it is a claim to regain control over the easement. Thus, a claim to remove an obstruction from an easement and regain control over the easement is subject to the 20-year statute of limitations in G.S. § 1-40.

This case is indistinguishable from Gray; accordingly, the trial court erred by applying our prior case law and relying on expiration of the six-year statute of limitations in G.S. § 1-50(a)(3).

Even though defendant previously sued plaintiff to enforce his easement rights, voluntarily dismissed his claims, and failed to refile them within one year, N.C. R. Civ. P. 41(a) does not bar any current claims he could bring regarding the easement. Rule 41(a) does not operate to shorten the applicable statute of limitations.

Reversed and remanded.