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Real Property – Easements – Preliminary Injunction – Trial Court’s Discretion

On the issue of whether a trial court must balance equities before issuing a permanent injunction dealing with encroachment on or obstruction of an easement, our caselaw is wildly inconsistent. Staying as consistent with as much caselaw as possible, the court determines that (1) a trial court may, in its discretion, enter a permanent injunction prohibiting a party from obstructing another party’s easement, and, in doing so, the trial court is not required to balance the equities or consider the relative hardships to the parties and (2) in the trial court’s discretion, it may consider the balance of the equities or the relative hardship of the parties in fashioning a permanent injunction if the court finds it appropriate to do so.

We remand the permanent injunction so as to give the trial court an opportunity to apply the rule set out today. We affirm the trial court’s grant of summary judgment to plaintiff on the issues of the existence and scope of the easement in question.

Even though the easement went unused for many years, in order to show abandonment of an easement, the owner of the servient estate must also show an unequivocal external act by the owner of the dominant tenement by which an intent to abandon is carried to effect. Here, the dominant estate is owned by a trust. Although the sister of the trust’s special-needs beneficiary said she would move the easement so that it crossed her own property, there is no evidence that the sister had any authority to bind the trust.

The easement provides “a non-exclusive and perpetual easement for purposes of ingress and egress to and from” the trust’s property. This language unambiguously permits the use of the easement by any common means of transportation that can travel along the easement, including both pedestrian and vehicle use. Further, the 18-foot width of the easement reflects an intent that it be used by vehicles and not solely by pedestrians.

Carolyn Louise Gunn Testamentary Trust v. Bumgardner (Lawyers Weekly No. 011-240-22, 14 pp.) (Richard Dietz, J.) Appealed from Gaston County Superior Court (Carla Archie, J.) Aaron Low for plaintiff; Bo Caudill for defendants. 2022-NCCOA-901


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