Parker v. Desherbinin , 256 N.C. App. 55 ( 2017 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA17-377
    Filed: 17 October 2017
    New Hanover County, No. 15 CVS 2255
    RAYMOND CLIFTON PARKER, Plaintiff,
    v.
    MICHAEL DESHERBININ and wife, ELIZABETH DESHERBININ, Defendants.
    Appeal by plaintiff from judgment entered 22 September 2016 and from order
    entered 1 December 2016 by Judge Mary Ann Tally in New Hanover County Superior
    Court. Heard in the Court of Appeals 26 September 2017.
    Hodges, Coxe, Potter, & Phillips, LLP, by Bradley A. Coxe, for Plaintiff-
    Appellant.
    H. Kenneth Stephens, II for Defendant-Appellees.
    TYSON, Judge.
    Raymond Clifton Parker (“Appellant”) appeals from denial of a directed verdict
    made at the close of Appellant’s evidence and renewed at the close of all evidence
    dated 29 August 2016, from a judgment entered on 22 September 2016 in favor of
    Michael and Elizabeth DeSherbinin (collectively “Appellees”), and from an order
    dated 1 December 2016, denying Appellant’s motion for judgment notwithstanding
    the verdict, to amend the judgment and for a new trial. For the following reasons, we
    PARKER V. DESHERBININ
    Opinion of the Court
    affirm in part, reverse in part the trial court’s judgment, and remand for further
    findings of fact.
    I. Background
    Appellant and Appellees own adjoining tracts of real property located in New
    Hanover County, adjacent to the Intracoastal Waterway. Appellant acquired his
    property, located at 19 Bridge Rd., from himself as trustee of the Grace Pittman Trust
    by a general warranty deed dated 21 December 1983. The deed was recorded on 16
    January 1984 in Book 1243, at Page 769, in the New Hanover County Registry.
    The Appellees acquired their property, a vacant lot, located at 1450 Edgewater
    Club Rd., by a warranty deed from John Anderson Overton and Holland Ann Overton,
    dated 16 December 2013 and recorded 17 December 2013 at Book 5788, at Page 1866,
    in the New Hanover County Registry. Appellees purchased their property with the
    intent to build a residence. The Appellees hired a surveyor, Marc Glenn, to survey
    the property and prepare a plat.
    Glenn’s survey (the “Glenn survey”) fixed the boundary between Appellant’s
    and Appellees’ properties to be approximately 5 feet south of the line established in a
    survey completed in 1982 by surveyor George Losak (the “Losak survey”) and
    recorded at Map Book 21, at Page 63, in the New Hanover County Registry. The
    Glenn survey shows a chain link fence installed by Appellant to the north of the
    boundary line between the parties’ properties. The Glenn survey failed to reference
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    PARKER V. DESHERBININ
    Opinion of the Court
    the prior recorded Losak surveys or show any overlaps in the surveyed boundary
    lines.
    In the Spring of 2014, Appellant and Appellees met regarding the boundary
    line between their properties. Appellant informed Appellees of an existing issue
    regarding the location of the boundary line. Appellees were also made aware, by their
    seller, prior to their purchase, that a dispute existed over the boundary line of the
    two properties. Appellees’ attorney closed on the property as shown in the Glenn
    survey, certified title thereto and obtained title insurance thereon.
    Appellees filed for a building permit for the residence they intended to
    construct at 1450 Edgewater Club Rd. Appellees attached a copy of the Glenn survey
    to their building permit application. Appellant complained and shared the recorded
    Losak survey with the New Hanover County planning and zoning office, prior to the
    issuance of the Appellees’ building permit being issued, but to no avail.
    Appellees continued to build their residence based on their belief the Glenn
    survey correctly showed the boundary. Appellant commissioned yet another survey
    from Charles Riggs, a registered licensed surveyor (the “Riggs survey”), while
    Appellees’ house was under construction.
    Appellant filed an initial complaint on 23 June 2015 and an amended
    complaint on 7 January 2016. Appellant asserted claims for negligence, nuisance,
    declaratory judgment to identify the boundary line, adverse possession under color of
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    PARKER V. DESHERBININ
    Opinion of the Court
    title, and adverse possession under twenty years of continuous possession. On 4
    March 2016, Appellees filed an answer denying Appellant’s claims and a
    counterclaim seeking a declaratory judgment to identify and establish the boundary
    line based upon their Glenn survey.
    On 29 August 2016, the case came to trial. The parties agreed to waive trial
    by jury. Appellant moved for a directed verdict at the close of his evidence and
    renewed again at the close of all evidence. These motions were denied.
    Among the findings of fact made by the trial court are the following:
    7. The Plaintiff’s and Defendants’ properties adjoin each
    other with the Defendants’ property lying adjacent to and
    to the north of Plaintiff’s property.
    8. A map of Edgewater Subdivision recorded in Map Book
    2, at Page 113, is the original map of Edgewater
    Subdivision (herein “Edgewater Map”) and created said
    subdivision.
    9, Plaintiff’s and Defendants’ properties are portions of
    Lots 4 and Lot 5 as shown on the map of Edgewater
    Subdivision, as recorded in Map Book 2, at Page 113, of the
    New Hanover County Registry.
    10. The Defendants engaged James B. Blanchard, PLS, a
    licensed registered land surveyor to perform a survey of the
    parties properties in February, 2016 to establish the
    dividing line between Lots 4 and 5 of Edgewater
    Subdivision as shown on Map Book 2, at Page 113, of the
    New Hanover County Registry and then to establish the
    boundary-line between the property of the parties.
    11. At the trial of this matter, Defendants presented the
    testimony of Mr. Blanchard who was tendered to and
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    PARKER V. DESHERBININ
    Opinion of the Court
    accepted by the Court without objection by Plaintiff as an
    expert witness in land surveying.
    12. That none of the original monuments shown on the
    Edgewater Map could be located by Mr. Blanchard.
    13. Mr. Blanchard established the dividing line between
    Lots 4 and 5 of Edgewater Subdivision as follows:
    a. By determining the northern line of Edgewater
    Subdivision by determining the southern line of Avenel
    Subdivision, the adjoining property to the north of
    Edgewater, as shown on a map recorded in Map Book 31,
    at Page 36 (herein “Avenel Map”) and a map recorded in
    Map Book 7, at Page 14, both in the New Hanover County
    Registry.
    b. That concrete monuments evidencing the southern line
    of Avenel and the northern line of Edgewater are shown on
    the Avenel Map and were located by Mr. Blanchard.
    c. Mr. Blanchard established a line southwardly and
    perpendicular to the northern line of Edgewater
    Subdivision and along the eastern right of way of Final
    Landing Lane, as shown on the Edgewater Map, for the
    distance shown on the Edgewater Subdivision Map
    required to reach the dividing line between Lots 4 and 5 all
    as shown on the Edgewater Map.
    d. Mr. Blanchard located the northern line of the tract
    adjoining Edgewater Subdivision on the south, i.e. the
    southern line of Edgewater Subdivision, as shown on a map
    recorded in Map Book 11, at Page 17, of the New Hanover
    County Registry.
    e. Mr. Blanchard found monuments confirming his
    determination of the southern line of Edgewater
    Subdivision as shown on the original Edgewater Map.
    f. That the Edgewater Map showed a fence running along
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    PARKER V. DESHERBININ
    Opinion of the Court
    the northern line of Edgewater Subdivision and that Mr.
    Blanchard, during the performance of his field work,
    located remnants of a wire fence running along the line
    which he determined to be the northern line of Edgewater.
    14. The Defendants introduced a map by Mr. Blanchard
    dated July 9, 2016 (Defendants’ Exhibit 21, herein the
    “Blanchard Map”), showing the findings of his survey and
    illustrating his testimony and opinions as to the location of
    the boundary-line between Lots 4 and 5 of Edgewater
    Subdivision, as well as the boundary-line between the
    Defendants’ tract to the north described in Deed Book
    5788, at Page 1866, of the New Hanover County Registry,
    and Plaintiff’s tract to the south described in Deed Book
    1243, at Page 769, of the New Hanover County Registry.
    15. George Losak, registered land surveyor, prepared a
    map for “The William Lyon Company” dated December 30,
    1982, recorded in February 10, 1983 and in Map Book 21,
    at Page 63, of the New Hanover County Registry (the
    “Losak Survey”) showing or purporting to show the
    property later purchased by Plaintiff.
    16. In August 1983, Mr. Losak prepared a second map of
    the property for “The Grace Pittman Trust” which was
    recorded on September 7, 1983 in Map Book 22, at Page 20,
    of the New Hanover County Registry. The purpose of this
    map was to correct errors contained in the Losak Survey.
    17. Plaintiff’s deed dated December 21, 1983 and recorded
    on January 16, 1984 referred to the Losak Survey, recorded
    in Map Book 21, at Page 63, of the New Hanover County
    Registry.
    18. The Losak Survey referred to hereinabove depicts pipes
    and monuments which Mr. Losak ignored in determining
    the boundary-line between the subject properties.
    19. The Court finds Mr. Blanchard’s testimony to be
    credible and correct as to the location of the boundary-line
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    PARKER V. DESHERBININ
    Opinion of the Court
    between the Plaintiff’s and Defendants’ properties.
    20. The true location of the boundary-line between
    Plaintiff’s property and Defendants’ property is shown on
    the Blanchard Map dated July 9, 2016 which describes the
    dividing line between the parties’ properties as follows:
    ....
    21. Defendants purchased their property, also known as
    1450 Edgewater Club Road, in December of 2013.
    22. At the time the Defendants purchased their property
    the Plaintiff and Defendants’ predecessor in title were
    engaged in a dispute with regard to the boundary-line
    between the parties’ tracts.
    ....
    24. The Defendants hired Polaris Surveying, LLC and
    Marc Glenn, PLS to survey the property and prepare a
    boundary survey, a site plan, and topographical survey.
    25. Marc Glenn determined the boundary-line to be as
    shown on his map recorded in Map Book 58, at Page 363,
    of the New Hanover County Registry, which is
    substantially where Mr. Blanchard locates the boundary-
    line.
    ....
    30. After closing on their property the Defendants had a
    chance meeting with the Plaintiff on site on or about April
    or May of 2014 while they were meeting with a contractor
    during the design phase of their home.
    31. During this chance meeting Plaintiff raised the
    boundary-line issue and told Defendants about the Losak
    Survey and the monuments Losak found, but he did not
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    PARKER V. DESHERBININ
    Opinion of the Court
    show any of the monuments to the Defendants nor did he
    point them out.
    32. In October 2014, after hiring several surveyors and
    attempting to hire several other surveyors Plaintiff hired
    Charles Riggs to survey his property and to confirm the
    description contained on the Losak Surveys.
    33. At the time Plaintiff hired Mr. Riggs the Defendants
    house was approximately forty percent (40%) complete.
    34. Charles Riggs provided the Plaintiff with a survey
    reflecting his findings on January 30, 2015.
    35. The Defendants first saw the Riggs Survey in 2015
    when their house was approximately seventy percent (70%)
    complete.
    36. The New Hanover County zoning ordinance requires a
    minimum side set back of fifteen feet (15’) for structures
    built on Defendants’ property.
    37. In 1985, the Plaintiff constructed a fence along what he
    believed to be the northern-boundary line of his property
    and the southern boundary-line of Defendants’ property.
    This area is hereto referred to [as] the “Disputed Area”.
    38. After 2005, Plaintiff would occasionally reach through
    the fence or lean over the fence to trim vines growing on
    the property to the north of the fence, the property now
    owned by Defendants.
    39. The [D]isputed [A]rea could not be mowed because it
    was so overgrown. There was nothing visible to indicate
    anyone was in possession of or maintaining the Disputed
    Area.
    The trial court also made the following relevant conclusions of law:
    2. Plaintiff’s and Defendants’ chains of title and vesting
    deeds both establish that the dividing line between the
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    PARKER V. DESHERBININ
    Opinion of the Court
    property, i.e. their common boundary, is the dividing line
    between tracts 4 and 5 of Edgewater Subdivision as shown
    on the map of said subdivision recorded in Map Book 2, at
    Page 113, of the New Hanover County Registry or can only
    be determined by locating the line between Lots 4 and 5 of
    Edgewater Subdivision.
    3. That the true boundary-line between Plaintiff and
    Defendants is as shown on the Blanchard Map referred to
    in the findings of fact and further more particularly
    described as follows:
    ....
    4. That the Defendants were not negligent in purchasing
    their property or in proceeding with the construction of
    their residence on their property.
    5. That the construction and location of Defendants’ home
    does not violate the fifteen foot (15’) minimum side set back
    requirement of the New Hanover County zoning ordinance.
    6. That the actions of the Defendants did not constitute a
    substantial interference with the Plaintiff’s use of his
    property and were not unreasonable and therefore do not
    constitute a nuisance.
    7. That Plaintiff’s possession, if any, of any portion of the
    [D]isputed [A]rea was not open, notorious, or continuous
    and therefore [does] not constitute adverse possession
    either with or without color of title.
    On 22 September 2016, the trial court found in favor of Appellees on all of
    Appellant’s claims and entered judgment. Appellant filed a motion for judgment
    notwithstanding the verdict, a motion to amend the judgment, and a motion for a new
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    PARKER V. DESHERBININ
    Opinion of the Court
    trial which were all denied by the trial court on 1 December 2016. Appellant timely
    filed an amended notice of appeal on 30 December 2016.
    II. Statement of Jurisdiction
    Jurisdiction lies in this Court from a final judgment of the superior court
    pursuant to N.C. Gen. Stat. § 7A-27(b) (2015).
    III. Standard of Review
    Where trial is other than by jury, “[t]he trial judge acts as both judge and jury
    and considers and weighs all the competent evidence before him. If different
    inferences may be drawn from the evidence, the trial judge determines which
    inferences shall be drawn and which shall be rejected.” In re Estate of Trogdon, 
    330 N.C. 143
    , 147-48, 
    409 S.E.2d 897
    , 900 (1991) (emphasis and citation omitted).
    In a bench trial in which the superior court sits without a
    jury, the standard of review is whether there was
    competent evidence to support the trial court’s findings of
    fact and whether its conclusions of law were proper in light
    of such facts. Findings of fact by the trial court in a non-
    jury trial are conclusive on appeal if there is evidence to
    support those findings. A trial court’s conclusions of law,
    however, are reviewable de novo.
    Hanson v. Legasus of North Carolina, LLC, 
    205 N.C. App. 296
    , 299, 
    695 S.E.2d 499
    ,
    501 (2010) (citation omitted).
    IV. Analysis
    Appellant argues several of the trial court’s findings of fact are unsupported by
    competent evidence, and several of the trial court’s conclusions of law are not
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    PARKER V. DESHERBININ
    Opinion of the Court
    supported and improper in light of the relevant findings of facts and law. We address
    the disputed findings of fact and conclusions of law in turn.
    A. Finding of Fact 37
    Appellant argues no competent evidence supports the trial court’s finding of
    fact 37 that “in 1985, the [Appellant] constructed a fence along what he believed to be
    the northern-boundary line of his property and the southern boundary-line of
    [Appellees’] property.” (Emphasis supplied.) Appellees do not contest Appellant’s
    assertion and testimony that the chain link fence was not placed on what Appellant
    considered to be the boundary line of the subject properties.
    After reviewing the record and stipulations of counsel at oral argument, we
    hold that no evidence supports the trial court’s finding of fact 37 that “Appellant
    constructed a fence along what he believed to be the northern-boundary line of his
    property.”   The overwhelming, non-contradicted evidence indicates Appellant
    constructed a fence within the boundary of his property as purportedly established
    by the Losak survey.
    Appellant testified at trial that when he purchased the property at 19 Bridge
    Rd., a low fence referred to as the “neighbor’s fence” was inside the boundary line on
    the Losak survey. The Losak survey indicates the “neighbor’s fence” was one to five
    feet south of the boundary line purportedly established by the Losak survey.
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    PARKER V. DESHERBININ
    Opinion of the Court
    Appellant testified that sometime in 1984 or 1985, he constructed a chain link
    fence adjacent to the “neighbor’s fence” as indicated on the Losak survey. Appellant
    stated he did not put the chain link fence on what he believed to be the property line,
    because dogwood trees and vegetation existed along the purported property line.
    Appellant stated he wanted enough space to remain between the purported property
    line and the chain link fence to prevent the neighbors from damaging the fence.
    Appellant additionally testified the chain link fence had not been moved since
    it was constructed in 1984 or 1985.       Appellant submitted a photograph labeled
    Plaintiff’s Exhibit 25.20 which showed the chain link fence as it was located in the
    mid-1980’s and in the present day.
    Appellant’s expert, Charles Riggs, produced a survey which shows the Losak
    survey line claimed by Appellant and the Blanchard survey line claimed by Appellees,
    and determined by the trial court to be the boundary line. The Riggs survey indicates
    the chain link fence was located between the disputed survey lines.
    Also submitted into evidence was a 5 December 2013 from Holly Overton,
    Appellees’ predecessor-in-title to 1450 Edgewater Club Rd., to Nicole Valentine, the
    buyer’s agent for Appellees, which discusses the location of the chain link fence. In
    her email, Ms. Overton mentioned the Losak survey line and the Blanchard survey
    line and stated the chain link fence “is located in the middle of the two property lines
    mapped.”
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    PARKER V. DESHERBININ
    Opinion of the Court
    As Appellant accurately argues, no testimony or other evidence supports the
    trial court’s finding of fact 37 that “in 1985, the [Appellant] constructed a fence along
    what he believed to be the northern-boundary line of his property and the southern
    boundary-line of [Appellees’] property.” Appellees’ only argument against Appellant
    on this point is that because “Appellant never located the chain link fence on the
    ground it is impossible to locate the fence with any more precision.”
    However, counsel agree the chain link fence is “known and visible” and is in
    the same location it was in when Appellant first built it in 1984 or 1985.
    Furthermore, no evidence was presented at trial to contradict the location of the chain
    link fence as surveyed by Appellant’s surveyor, Riggs.
    No competent evidence supports the trial court’s finding of fact 37.
    B. Finding of Fact 39
    Appellant argues insufficient evidence supports the trial court’s finding of fact
    39: “The [D]isputed [A]rea could not be mowed because it was so overgrown. There
    was nothing visible to indicate anyone was in possession of or maintaining the
    Disputed Area.” Appellees concede competent evidence was presented of Appellant’s
    open and continuous possession of that portion of the Disputed Area up to the location
    of Appellant’s chain link fence.
    Appellant produced photographs, admitted into evidence, which tend to show
    the condition of the property as maintained by Appellant since he first acquired it in
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    PARKER V. DESHERBININ
    Opinion of the Court
    1983. Appellant’s unchallenged photographs depict a maintained and cleared lawn,
    with storage and buildings established along the fence line.
    An email from Holly Overton, the Appellees’ predecessor-in-title to 1450
    Edgewater Club Rd., to Nicole Valentine, the Appellees’ agent, stated Appellant
    would trim bushes along the chain link fence in the Disputed Area and store his
    equipment.    Appellees presented no evidence to dispute Appellant’s continued
    maintenance of the property in the portion of the Disputed Area south of the chain
    link fence.
    The trial court’s finding of fact 39 is not supported by competent evidence, to
    the extent it expresses the Disputed Area “could not be mowed because it was so
    overgrown. There was nothing visible to indicate anyone was in possession of or
    maintaining the Disputed Area”.
    C. Conclusion of Law 7
    Appellant argues the trial court’s conclusion of law 7 is in error based upon the
    law of adverse possession and the unsupported findings of fact that he did not use,
    maintain, and possess the Disputed Area on his property’s side of the chain link fence.
    Conclusion of law 7 states: “That Plaintiff’s possession, if any, of any portion of
    the [D]isputed [A]rea was not open, notorious, or continuous and therefore [does] not
    constitute adverse possession either with or without color of title.”
    1. Adverse Possession for Twenty Years
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    PARKER V. DESHERBININ
    Opinion of the Court
    In North Carolina, ‘[t]o acquire title to land by adverse possession, the claimant
    must show actual, open, hostile, exclusive, and continuous possession of the land
    claimed for the prescriptive period[.]’ ” Jones v. Miles, 
    189 N.C. App. 289
    , 292, 
    658 S.E.2d 23
    , 26 (2008) (citation omitted); Federal Paper Board Co. v. Hartsfield, 87 N.C.
    App. 667, 671, 
    362 S.E.2d 169
    , 171 (1987) (holding that “[t]itle to land may be
    acquired by adverse possession when there is actual, open, notorious, exclusive,
    continuous and hostile occupation and possession of the land of another under claim
    of right or color of title for the entire period required by the statute.”) (internal
    quotation marks and citation omitted).
    Adverse possession of privately owned property without color of title must be
    maintained for twenty years in order for the claimant to acquire title to the land. N.C.
    Gen. Stat. § 1-40 (2015).
    Presuming, arguendo, the trial court was correct in determining the Blanchard
    survey line was the correct boundary line between the parties’ properties of Lots 4
    and 5, uncontradicted evidence proves Appellant’s actual occupation and continuous
    use of the property on the southern half of the Disputed Area since he acquired 19
    Bridge Rd. in the early 1980s.
    Appellant’s installation of the chain link fence and his admitted maintenance
    of the area around and inside it since he established the fence in 1984 or 1985 shows
    his actual, open, notorious, exclusive and hostile use of property located on the south
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    PARKER V. DESHERBININ
    Opinion of the Court
    side of the chain link fence in the Disputed Area to support his claim for adverse
    possession under the requisite twenty year possession period. See Blue v. Brown, 
    178 N.C. 334
    , 337, 
    100 S.E. 518
    , 519 (1919) (holding a fence, maintained for many years,
    a hedgerow and possession for 30 or 40 years justified verdict for adverse possession);
    Brittain v. Correll, 
    77 N.C. App. 572
    , 575, 
    335 S.E.2d 513
    , 515 (1985) (holding a fence
    and other outbuildings showed claimants were asserting exclusive right over the
    disputed property); Snover v. Grabenstein, 
    106 N.C. App. 453
    , 459, 
    417 S.E.2d 284
    ,
    287 (1992) (holding that fence in place for more than fifty years such that the
    possession exercised by parties on either side of it was open, notorious and continuous
    so as to constitute adverse possession).
    Appellees presented no evidence that they, or their predecessors-in-title,
    disputed or gave permission to Appellant to erect his chain link fence in the Disputed
    Area, until they sent a letter to Appellant in 2014, more than thirty years after
    Appellant built the fence. Appellees presented no evidence that anyone, other than
    Appellant, claimed, used, or maintained the area on the south side of the chain link
    fence after Appellant acquired 19 Bridge Rd. in 1983.
    The uncontradicted evidence shows Appellant’s actual, open, notorious,
    exclusive, continuous and hostile occupation and possession of the area on the south
    side of the chain link fence within the Disputed Area for the statutory period. See
    Federal Paper 
    Board, 87 N.C. App. at 671
    , 362 S.E.2d at 171.
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    PARKER V. DESHERBININ
    Opinion of the Court
    Appellees’ counsel conceded at oral argument before this Court that
    Appellant’s uncontradicted evidence established adverse possession to the portion of
    the Disputed Area on the south side of the chain link fence. The trial court erred, as
    a matter of law, in concluding Appellant had not established adverse possession to
    the south side of the Disputed Area bounded by the chain link fence.
    2. Color of Title
    Appellant argues he is entitled to the entire Disputed Area on the north and
    south side of the chain link fence through adverse possession under color of title.
    Appellant asserts the deed under which he acquired title to 19 Bridge Rd.
    establishes color of title so that he is entitled to the area of property located north of
    the chain link fence in the Disputed Area by adverse possession under color of title.
    By statute, when the claimant’s possession is maintained under an instrument that
    constitutes “color of title,” the prescriptive period is reduced from twenty to seven
    years. N.C. Gen. Stat. § 1-38(a) (2015).
    Appellees argue Appellant’s adverse possession under color of title claim fails,
    as a matter of law, because the Losak survey referenced in Appellant’s deed stated
    an incorrect boundary line.
    Our Supreme Court has held:
    A deed offered as color of title is such only for the land
    designated and described in it. Norman v. Williams, 
    241 N.C. 732
    , 
    86 S.E.2d 593
    ; Locklear v. Oxendine, 
    233 N.C. 710
    , 
    65 S.E.2d 673
    ; Barfield v. Hill, 
    163 N.C. 262
    , 79 S.E.
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    PARKER V. DESHERBININ
    Opinion of the Court
    677. “A deed cannot be color of title to land in general, but
    must attach to some particular tract.” Barker v. Southern
    Railway, 
    125 N.C. 596
    , 
    34 S.E. 701
    . To constitute color of
    title a deed must contain a description identifying the land
    or referring to something that will identify it with
    certainty. Carrow v. Davis, 
    248 N.C. 740
    , 
    105 S.E.2d 60
    ;
    Powell v. Mills, 
    237 N.C. 582
    , 
    75 S.E.2d 759
    .
    ....
    When a party introduces a deed in evidence which he
    intends to use as color of title, he must, in order to give
    legal efficacy to his possession, prove that the boundaries
    described in the deed cover the land in dispute. Smith v.
    Fite, 
    92 N.C. 319
    . He must not only offer the deed upon
    which he relies for color of title, he must by proof fit the
    description in the deed to the land it covers-in accordance
    with appropriate law relating to course and distance, and
    natural objects and other monuments called for in the deed.
    Wachovia Bank & Trust Co. v. Miller, 
    243 N.C. 1
    , 
    89 S.E.2d 765
    ; Skipper v. Yow, 
    238 N.C. 659
    , 
    78 S.E.2d 600
    ; Williams
    v. Robertson, 
    235 N.C. 478
    , 
    70 S.E.2d 692
    ; Locklear v.
    Oxendine, supra; Smith v. Benson, 
    227 N.C. 56
    , 
    40 S.E.2d 451
    .
    McDaris v. “T” Corp., 
    265 N.C. 298
    , 300-01, 
    144 S.E.2d 59
    , 61 (1965) (emphasis
    supplied).
    A plaintiff’s burden at trial is also well established:
    [I[n order to present a prima facie case [of adverse
    possession], [a plaintiff] must . . . show that the disputed
    tract lies within the boundaries of their property. See Cutts
    v. Casey, 
    271 N.C. 165
    , 167, 
    155 S.E.2d 519
    , 521
    (1967); Batson v. Bell, 
    249 N.C. 718
    , 719, 
    107 S.E.2d 562
    ,
    563 (1959). Plaintiffs thus bear the burden of establishing
    the on-the-ground location of the boundary lines which they
    claim. Virginia Electric and Power Co. v. Tillett, 80 N.C.
    App. 383, 391, 
    343 S.E.2d 188
    , 194, disc. review denied, 317
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    PARKER V. DESHERBININ
    Opinion of the Court
    N.C. 715, 
    347 S.E.2d 457
    (1986). If they introduce deeds
    into evidence as proof of title, they must “locate the land by
    fitting the description in the deeds to the earth's
    surface.” Andrews v. Bruton, 
    242 N.C. 93
    , 96, 
    86 S.E.2d 786
    , 788 (1955).
    Chappell v. Donnelly, 
    113 N.C. App. 626
    , 629, 
    439 S.E.2d 802
    , 805 (1994).
    The evidence shows Appellant acquired title to 19 Bridge Rd. pursuant to a
    recorded deed in 1983. Appellant’s deed contains a metes-and-bounds description,
    and refers and incorporates into the deed the recorded survey prepared by George
    Losak. See Collins v. Land Co., 
    128 N.C. 563
    , 565, 
    39 S.E. 21
    , 22 (1901) (“[A] map or
    plat, referred to in a deed, becomes a part of the deed as if it were written therein[.]”).
    The trial court’s conclusion of law 7 is not supported by the trial court’s findings
    of fact and is in error as a matter of law, to the extent it states Appellant has not
    established adverse possession of the Disputed Area south of the chain link fence.
    See 
    Hanson, 205 N.C. App. at 299
    , 695 S.E.2d at 499 (citation omitted). There remain
    unresolved factual issues of whether the metes-and-bounds description contained in
    Appellant’s deed and the incorporated reference to the Losak survey accurately
    describe the extent of Appellant’s property.
    Even though the trial court found the Blanchard survey accurately shows the
    true boundary line between the Appellant and Appellees’ properties, the court made
    no findings regarding whether Appellant had shown the on-the-ground boundary
    lines described in his deed and depicted in the Losak survey referenced therein. To
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    PARKER V. DESHERBININ
    Opinion of the Court
    determine whether Appellant has adversely possessed the remaining portion of the
    Disputed Area under color of title, it is necessary for the trial court to make findings
    of fact regarding whether Appellant can fit the description of the deed and survey
    under which he claims color of title to the portion of the Disputed Area north of his
    chain link fence. 
    Andrews, 242 N.C. at 96
    , 86 S.E.2d at 788.
    We reverse and remand this matter to the trial court to determine whether the
    deed and survey under which Appellant acquired title sufficiently describes the
    remaining portion of the Disputed Area.
    3. Lappage
    Appellant argues this case involves an issue regarding the parties presenting
    overlapping claims of ownership to the Disputed Area, known as a “lappage.”
    In a case of “lappage,” a dispute between property owners where their
    respective titles purport to grant ownership to and over an overlapping area, the
    adverse claimant is not required to show actual possession of the entire area under
    lappage:
    It is thoroughly established law that when a person having
    color of title to a particular tract of land, which the written
    instrument, that is color of title, describes by known and
    visible lines and boundaries, enters into and adversely
    holds a part of such tract under the authority ostensibly
    given him by such instrument asserting ownership of the
    whole, his ensuing possession is not limited to the portion
    of the tract as to which there has been an entry or actual
    possession, but is commensurate with the limits of the tract
    to which the instrument purports to give him title, provided
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    PARKER V. DESHERBININ
    Opinion of the Court
    that at the inception, and during the continuance of the
    possession, there has been no adverse possession of the
    tract in whole or in part by another: and in this State such
    possession, if exclusive, open, continuous and adverse for
    seven consecutive years, the title being out of the State,
    will ripen into an unimpeachable title to the whole,
    provided there has been and is no adverse possession of the
    tract in whole or in part during such seven consecutive
    years by another.
    Wachovia Bank & Tr. Co. v. Miller, 
    243 N.C. 1
    , 6, 
    89 S.E.2d 765
    , 769 (1955) (emphasis
    supplied) (citations omitted).
    If on remand, the trial court determines the Appellant’s metes-and-bounds
    deed description and incorporated reference to the Losak survey contained in
    Appellant’s deed can be located upon the ground and is sufficient to establish
    Defendant possessed color of title to the remaining Disputed Area, Defendant will be
    entitled to quiet title to the entirety of the Disputed Area, based on his undisputed
    adverse possession for twenty years of that portion of the Disputed Area south of the
    chain link fence. See 
    id. D. Nuisance
    and Negligence Claims
    Appellant asserted claims for negligence and nuisance in his amended
    complaint. On appeal, Appellant’s counsel abandoned these claims at oral argument.
    Therefore, we decline to address the parties’ arguments regarding these claims.
    Those portions of the trial court’s judgment relating to negligence and nuisance are
    affirmed.
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    PARKER V. DESHERBININ
    Opinion of the Court
    V. Conclusion
    A review of the record evidence and the testimony presented at trial and
    stipulations of counsel on appeal, shows some of the findings of fact made by the trial
    court are not supported by any competent, substantial evidence. The trial court’s
    conclusion that Appellant was not entitled to the portion on the south side of the
    chain link fence within the Disputed Area by virtue of adverse possession for twenty
    years is error as a matter of law.
    Unresolved factual issues remain regarding whether Appellant’s deed and the
    recorded Losak survey referenced and incorporated therein provide color of title to
    the entirety of the Disputed Area, requiring remand to the trial court for further
    findings of fact. Conclusion of law 7 is reversed and the matter remanded to the trial
    court to make additional findings of fact and conclusions of law with regard to
    Appellant’s claim of adverse possession by color of title, and to enter judgment
    accordingly.
    We remand this case with instructions to the trial court to enter judgment to
    quiet title and award Appellant ownership to the portion of the Disputed Area on the
    south side of Appellant’s chain link fence. If the physical location of the chain link
    fence is not otherwise sufficiently located, the trial court is to direct James Blanchard,
    P.L.S. or another licensed surveyor, to physically locate, fit and describe the location
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    PARKER V. DESHERBININ
    Opinion of the Court
    of Appellant’s chain link fence. The expense of said survey shall be taxed as court
    costs.
    On remand, Appellant bears the burden of establishing that the boundaries
    described in his deed and the incorporated Losak survey, through which he acquired
    title to 19 Beach Rd., describe the portion of the Disputed Area north of the chain link
    fence. See 
    McDaris, 265 N.C. at 300-01
    , 144 S.E.2d at 61 (citation omitted).
    If the trial court finds and concludes that Appellant meets this burden, the
    trial court is to also enter judgment quieting title and awarding Appellant ownership
    of that portion of the Disputed Area north of the chain link fence and to the entire
    Disputed Area. See Wachovia 
    Bank, 243 N.C. at 6
    , 89 S.E.2d at 769.
    The decision of the trial court is affirmed in part, reversed in part and the case
    is remanded for further findings as noted herein. It is so ordered.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    Judges BRYANT and INMAN concur.
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