Skvarla v. Park , 62 N.C. App. 482 ( 1983 )

303 S.E.2d 354 (1983)

John E. SKVARLA III, et al.
v.
Frances Williams PARK.

No. 8210SC808.

Court of Appeals of North Carolina.

June 7, 1983.

Skvarla, Wyrick & From by Robert A. Ponton, Jr., Raleigh, for plaintiffs-appellees.

Kirby, Wallace, Creech, Sarda & Zaytoun by William A. Creech and David F. Kirby, Raleigh, for defendant-appellant.

VAUGHN, Chief Judge.

Since the parties have stipulated that the deed from the Bernards to C.B. Williams created an appurtenant easement in favor of 1407 Hillsborough Street, the sole issue is whether defendant presented sufficient evidence to support her affirmative defense, that the easement was extinguished, to withstand plaintiffs' motion for a directed verdict. Defendant contends the easement was extinguished by abandonment. As the party claiming the easement was abandoned, defendant has the burden of proof to establish the abandonment. Raleigh, Charlotte and Southern Railway v. McGuire, 171 N.C. 277, 88 S.E. 337 (1916). Therefore, plaintiffs' motion for directed verdict was properly granted if the evidence, considered in the light most favorable to defendant, and with all conflicts in the evidence resolved in defendant's favor, is insufficient to justify a verdict for defendant as a matter of law. Arnold v. Sharpe, 296 N.C. 533, 251 S.E.2d 452 (1979). An appurtenant easement is an incorporeal right attached to the land; it is incapable of existence apart from the dominant estate, and it passes with the transfer of title to the land. Yount v. Lowe, 288 N.C. 90, 215 S.E.2d 563 (1975); Shingleton v. State, 260 N.C. 451, 133 S.E.2d 183 (1963); Hetrick, Webster's Real Estate Law in North Carolina § 303 et seq. (1981). An easement may be abandoned by unequivocal acts showing a clear intention to abandon and terminate the easement; the intent to abandon is the material question. Combs v. Brickhouse, 201 N.C. 366, 160 S.E. 355 (1931). The essential acts of abandonment are the intent to abandon and the unequivocal external act by the owner of the dominant tenement by which the intention is carried to effect. Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173 (1942). Mere lapse of time in asserting one's claim to an easement, unaccompanied by acts and conduct inconsistent with one's rights, does not constitute waiver or abandonment of the easement. Ward v. Sunset Beach and Twin Lakes, Inc., 53 N.C. App. 59, 279 S.E.2d 889 (1981). Defendant contends that the evidence, viewed in the light most favorable to herself, tends to show that plaintiffs' predecessor in title abandoned the easement. We do not agree. Although the evidence tends to show that the easement had not been used in seventy years, there is not a shred of evidence to indicate that the easement was abandoned. There is absolutely no evidence of any external unequivocal act by plaintiffs, or their predecessors in title, indicating an intent to abandon the easement. The fence, because it was erected by the owner of the servient tenement, was not evidence of abandonment. Moreover, the agreement between Bernard and Williams explicitly stated "that it is not their desire nor intention that the erection and maintenance of this fence is to forfeit the right of easement...." Since neither party introduced any evidence of abandonment, the trial court did not err by granting plaintiffs' motion for directed verdict on the issue of abandonment.

Defendant's second assignment of error is that the trial court erred by failing to submit the issue of adverse possession to the jury. At the outset, we note the following exchange that took place at the close of the evidence:

Mr. Creech: Your Honor, defendant would move—would renew the motion we made at the conclusion of plaintiff's evidence, for motion under Rule 50 for a directed verdict. We at this time would like to renew that motion.

Court: All right sir, now we will come to the plaintiffs' motion—there is only one question in this lawsuit as I understand it gentlemen, and that is whether the plaintiff has abandoned its right of easement across 1405.

Mr. Ponton: We agree with that, your Honor. (Emphasis added).

Defendant failed to object or indicate in any way that she wanted the trial court to also consider the issue of adverse possession. If she felt that there was evidence to support an issue of adverse possession she should have made it known to the trial judge as required by Rule 46(b) of the North Carolina Rules of Civil Procedure. In any event, the assignment of error must be overruled because there is no evidence to establish the elements of adverse possession. Title may be acquired by adverse possession only if the possession is actual, open, notorious, exclusive, continuous, hostile, for the statutory period, and with intent to claim title to the land occupied. Wilson County Board of Education v. Lamm, 276 N.C. 487, 173 S.E.2d 281 (1970); Mizzell v. Ewell, 27 N.C.App. 507, 219 S.E.2d 513 (1975). An easement may be extinguished by adverse use by the owner of the servient property for the prescriptive period. Duke Power Co. v. Toms, 118 F.2d 443 (4th Cir.1941); Hetrick, Webster's Real Estate Law in North Carolina § 338 (1981). Possession is presumed permissive until it is proved that the occupant intended to claim against the true owner. Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630 (1951). The possession must be "evidenced by such unequivocal acts as will put the true owner on notice of the claim." Clendenin v. Clendenin, 181 N.C. 465, 467, 107 S.E. 458, 459 (1921). In this case, however, defendant has failed to show any unequivocal act which put plaintiffs' predecessor on notice of her claim. On the contrary, the agreement between the previous owners of the lots shows, unequivocally, that the use was permissive. The use may have become adverse when plaintiffs bought the property in 1980 and requested defendant to remove the fence, but that falls far short of the required twenty years' statutory period.

For the reasons stated, the judgment is

Affirmed.

HILL and BECTON, JJ., concur.