North Carolina Lawyers Weekly
Although the defendant-landowner showed that its customers used a vacant lot for parking to visit defendant’s businesses, the Department of Transportation showed that defendant did not own the vacant lot, and defendant failed to show that it had a prescriptive easement over the vacant lot.
We affirm the trial court’s ruling that defendant had failed to establish a prescriptive easement in the vacant lot (the “parking island”).
In this condemnation case, as in others, DOT’s initial deposit was an estimated sum for just compensation. As the deposited sum is not relevant to the issue of title and interests taken by DOT, the trial court did not err by failing to consider the sum as evidence of defendant’s interest in the parking island.
In an effort to tack the alleged period of adverse possession of the parking island, defendant presented the affidavit of a former owner. The affidavit was presented for the first time during the hearing held pursuant to G.S. § 136-108. Although defendant claims that it was unaware DOT was going to contest the prescriptive easement, the purpose of the § 108 hearing is to “hear and determine any and all issues raised by the pleadings other than the issue of damages,” § 136-108, and the issue of whether defendant had a prescriptive easement to the parking island was raised in DOT’s pleadings.
Moreover, even if the trial court had abused its discretion in excluding the affidavit, defendant has failed to show any resulting prejudice. The former owner’s affidavit does not show that he owned the parking island for a length of time over 20 years or that his use of the parking island was anything but permissive.
In addition to failing to show a 20-year span of use of the parking island, defendant failed to show that its use was adverse. While defendant presented evidence that its businesses posted directional signs on the parking island, the trial court found that there was no evidence that any signs were ever placed on the parking island restricting parking to certain guests or customers. The trial court further found no evidence that permission was ever sought by defendant to use the parking island or that the record owner ever consented to or objected to defendant’s use of the parking island.
The trial court’s findings support its conclusion that defendant failed to establish a prescriptive easement in the parking island.
Even though DOT’s estimated sum of just compensation included the prescriptive easement under the “extraordinary assumption” that defendant owned such an easement, DOT’s pleadings were not inconsistent with its position at the § 108 hearing that defendant did not have a prescriptive easement over the parking island. From the initiation of this condemnation action, DOT’s position has been that defendant did not own the parking island. DOT was not judicially estopped from claiming that defendant does not have a prescriptive easement over the parking island.
Affirmed.
Department of Transportation v. Mountain Villages, LLC (Lawyers Weekly No. 011-181-22, 24 pp.) (Allegra Collins, J.) Appealed from Jackson County Superior Court (Jacqueline Grant, J.) Liliana Lopez for plaintiff; Jonathan Dunlap and Jackson Bebber for defendant. 2022-NCCOA-709
