Real Property – Pedestrian Easement – New Greenway – Intended Use

The pedestrian easement along defendants’ property line now leads to a developed greenway rather than an undeveloped floodplain. This is immaterial because the purpose for which plaintiffs seek to use the easement says within the original intended scope of pedestrian ingress and egress.

We affirm summary judgment for plaintiffs.

Facts

The parties are owners of lots in the Park Crossing neighborhood. The neighborhood’s developer created pedestrian easements so residents wouldn’t need to walk on vehicular roadways.

Those easements originally led to an undeveloped floodplain. The developer offered to sell the floodplain to the Park Crossing owners’ association, but the association declined. The developer sold the floodplain to Mecklenburg County, and the City of Charlotte developed the floodplain into a greenway.

Owners of lots burdened by the pedestrian easements began obstructing the easements. Plaintiffs brought this action for a declaratory judgment. They settled with the owners of all burdened lots except the defendants Worthington (defendants). The trial court granted summary judgment for plaintiffs, and defendants appeal.

Discussion

First, defendants failed to preserve several issues for appellate review. They failed to argue the prejudice element of their affirmative defense of laches. They failed to cite any case law in support of their adverse possession and statute of limitations arguments. In the trial court, they did not raise any argument concerning the Marketable Title Act. They did not dispute the location of the easement before the trial court. And, at the summary judgment hearing, their attorney explicitly disclaimed any argument regarding the grantor’s intent.

Even though plaintiffs do not reside on any parcels adjoining the easements at issue, since the developer dedicated the easement as part of a network of paths designed to link the development without the necessity of pedestrian activity along the vehicular roadways, all residents of the neighborhood have a right in the nature of an easement appurtenant. Plaintiffs have standing to enforce their rights to the use of the easements.

Defendants contend that because the Park Crossing owners’ association declined to purchase the floodplain from the developer, “[t]he community abandoned the plan, the land, and the [four] easements.” A review of the record, however, belies this contention. Assuming, arguendo, that the association’s refusal evinced an intention to abandon the easement, defendants nevertheless must present evidence of an unequivocal external act by plaintiffs in furtherance of this intention, which they have failed to do.

The easement was dedicated to and for the benefit of each resident of Park Crossing as a pedestrian path. Plaintiffs’ proposed use of the easement stays within its original intended scope of pedestrian ingress and egress; the fact that the easement now leads to a developed greenway, rather than merely an undeveloped floodplain, is immaterial as it does not change the purpose for which plaintiffs seek to use the easement.

Plaintiffs’ proposed use of the easement as a footpath for Park Crossing residents to access the greenway falls squarely within the easement’s scope as a pedestrian walkway, and defendants failed to meet their burden to produce a forecast of evidence demonstrating that they will be able to make out at least a prima facie case at trial concerning overburdening and misuse of the easement.

Finally, plaintiffs have actively disclaimed any intention of dedicating the easement to the public. In any event, there is no evidence that any public authority has accepted any such dedication. Contrary to defendants’ argument, the easement was not dedicated to the public without their consent.

Affirmed.

Abbott v. Abernathy (Lawyers Weekly No. 011-009-23, 25 pp.) (Valerie Zachary, J.) Appealed from Mecklenburg County Superior Court (Carla Archie, J.) Erik Rosenwood for plaintiffs; Paul Tharp for defendants. N.C. App.