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Real Property – Prescriptive Easement – Deed Description – Proposed Road

Real Property – Prescriptive Easement – Deed Description – Proposed Road

The parties’ predecessor-in-interest divided her property into the present parties’ adjacent lots, and the parties’ deeds showed strips of their lots taken for a proposed road between the lots. Where plaintiff has used the road (which the town paved in 2006) since 1982, despite defendant’s protests, plaintiff has a prescriptive easement in the road.

We affirm summary judgment for plaintiff.

Plaintiffs’ use of “Block Drive” became hostile to defendant’s interests in 1997, when plaintiffs refused defendant’s offer to lease a portion of Block Drive from defendant. Plaintiffs continued to use Block Drive as their own for a right-of-way to access their commercial property without receiving permission from defendant.

Defendant had notice of plaintiffs’ use as evidenced by the disputes concerning plaintiffs’ dumpster, yet defendant continued to allow plaintiffs to use Block Drive.

The evidence tended to show that plaintiffs’ use was not permissive because Block Drive was labeled a “proposed street” in their deed, and plaintiffs believed Block Drive was a public road until 2015 when defendant erected a fence and notified plaintiff that Block Drive was a private road.

The Town of Emerald Isle paved Block Drive, also believing it to be a public road. Block Drive was marked with a town sign, and the general public frequently used the road for over 34 years. Plaintiffs had directional arrows placed on the pavement to direct traffic to use Block Drive from their parking lot, as well as directing the public to enter plaintiffs’ property from Block Drive, receiving no objection concerning the usage of Block Drive until this current dispute.

Because of the actions taken by the town and the belief that Block Drive was a public road, plaintiffs were using the right-of-way under a claim of right. Therefore, there was no genuine issue as to whether the use was adverse, hostile, or under a claim of right.

The dispute between the parties concerning the placement of dumpsters on the right-of-way demonstrates that defendant had knowledge of plaintiffs’ use of Block Drive.

Defendant also testified plaintiffs were permitted to use Block Drive at least since their dispute in 1997. Moreover, in 2006 the town paved Block Drive, which further showed use by the public was open and notorious. Defendant concedes it had allowed plaintiffs and the general public to use Block Drive for over 20 years.

Therefore, plaintiffs used Block Drive openly and notoriously with the full knowledge of defendant. Accordingly, there was no genuine issue of material fact as to whether plaintiffs’ use was open and notorious.

Plaintiffs continuously used Block Drive uninterrupted for ingress and egress of trucks, access to trash dumpsters, and parking spaces for the commercial property beginning in 1982, as noted in defendant’s own testimony.

Finally, the identity of the easement was not in question.

Plaintiffs met their burden of proving an easement by prescription by presenting sufficient evidence as to each element.


DM Trust, LLC v. McCabe & Co. (Lawyers Weekly No. 012-123-18, 10 pp.) (Philip Berger, J.) Appealed from Carteret County Superior Court (Benjamin Alford, J.) C.R. Wheatly for plaintiffs; Stanley Hammer for defendant. N.C. App. Unpub.



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