Waterway Drive Property Owners' Ass'n v. Town of Cedar Point

BEASLEY, Judge. The Town of Cedar Point (Defendant) and several financial institutions (included in the suit for notice purposes only) appeal from the trial court’s entry of summary judgment in favor of Waterway Drive Property Owners’ Association, Inc., by and through its members, (Plaintiffs) declaring Front Street/Waterway Drive a private road. For the following reasons, we affirm the orders of the trial court. I. Factual Background On 13 August 2010 Plaintiffs brought suit against Defendant to (1) establish by declaratory judgment that Defendant has no ownership interest to the area of Cedar Point known as “Front Street,” which forms at least part of the street named Waterway Drive; (2) in the alternative, request compensation through inverse condemnation for a “taking” of the Front Street area; (3) in the alternative, request compensation through inverse condemnation for a “taking” of the portion of Waterway Drive outside of the Front Street right-of-way (encroachment area)1; and (4) request a temporary restraining order and pre — 546 — liminary injunction. Defendant filed an answer generally denying the allegations of Plaintiffs’ complaint and raising a counterclaim also requesting declaratory judgment that (1) Front Street is a public right of way based upon dedication and acceptance; (2) Front Street/Waterway Drive and the encroachment area are public rights of way based upon prescriptive easement; and (3) no inverse condemnation has occurred as Defendant “is not seeking to exercise control or claim a right-of-way over Front Street/Waterway Drive by inverse condemnation or any other legal theory” if the trial court were to determine that it is not a public right of way by either dedication or prescription. The parties took depositions, submitted affidavits, and filed cross-motions for partial summary judgment on the declaratory judgment claim. The evidence forecast by the parties’ submissions to the trial court shows the following facts. It is undisputed that Front Street/Waterway Drive was dedicated to public use. In 1936, a landowner named John S. Jones filed a subdivision plat (“1936 Plat”) in Carteret County wherein he indicated that a portion of his land abutting the Intracoastal Waterway was to be used for a fifty-foot wide right-of-way named “Front Street.” From around the 1950s until about the early 1970s, the area designated as Front Street between Hill Street and Bell Street was used for vehicular traffic.2 During the 1970s, motorists stopped using Front Street as a through-street. However, the property owners along the street continued to use it as an access road and considered it a private drive. In 1978, Carteret County franchised a cable TV company to install cable in public streets in the area; cable was installed on Front Street. This was later franchised by Defendant in 1989. Defendant was incorporated in 1988. In 1988, Defendant franchised West Carteret Water Corporation to construct and maintain a water main system, which was installed on Front Street, along with a fire hydrant. In 1989, Defendant adopted a Resolution granting the mayor authority to accept dedications of certain streets, of which Front — 547 — Street/Waterway Drive was not included. A catch-all provision was included to extend that authority roughly one month into the future for any dedications offered in that time. In 1990, Defendant recorded a Notice of Acceptance that claims Defendant previously accepted several dedicated streets, including Front Street. Around 1990, Plaintiffs paved a portion of Front Street at their own expense, renamed it Waterway Drive without petitioning Defendant for a name change, and posted a sign reading “Private Road” at the entrance. Defendant never objected to these actions. The eastern end of the street remains unpaved. Residents receive mail at post boxes at one end of the street, not at each individual residence. There is evidence of Defendant clearing debris (consisting of a carpet) from the area of Waterway Drive following a hurricane in 1996. In 1998, Defendant had an additional fire hydrant installed on Waterway Drive. In 2001, Defendant contracted for garbage trucks to use the street to pick up garbage from the property residents. There is evidence of Defendant patching asphalt in 2006 and 2010. In 2005, Waterway Drive was added to Defendant’s “Powell Bill” map. Defendant uses this map to submit to the state how many miles of streets it has within its borders so that it may receive maintenance money for them. Neither the North Carolina Department of Transportation (NCDOT) nor Carteret County has any record of the maintenance of Front Street/Waterway Drive. “From and after July 1, 1931, the exclusive control and management and responsibility for all public roads in the several counties shall be vested in the Department of Transportation.” N.C. Gen. Stat. § 136-51 (2011). There is evidence of payments by the property owners, in the form of personal checks, for maintenance and repair of the road from the 1970s through the 1990s and of the Association’s by-laws and agreement that it would be responsible for maintenance and repairs. There is evidence in the form of a deed, deposition, and town minutes, of a private easement existing on Waterway Drive for the use of property owners. In 2006, Defendant sent the property owners a letter stating that Defendant had previously accepted the dedication and planned on making improvements to the street. This prompted discussions between the parties such that in 2010 the Plaintiffs formally petitioned Defendant to abandon the street, maintaining the claim that it is a private street. Defendant held a public hearing and declined. Plaintiffs filed a declaration of withdrawal, followed by the instant lawsuit. — 548 — Prior to the summary judgment hearing, Defendant submitted the affidavit of John R. Jones, son of the original Front Street dedicator. Plaintiffs noticed a deposition of Mr. Jones and issued and served a subpoena for his appearance at the deposition. Mr. Jones, through counsel, objected to the subpoena and moved to quash it on the grounds that it imposed an undue burden on him for health reasons. In response, Plaintiffs filed a motion to compel Mr. Jones to appear to be deposed or, in the alternative, to strike Mr. Jones’ affidavit on the grounds that lack of an opportunity to depose Mr. Jones would “unduly prejudice Plaintiffs.” The trial court granted Plaintiffs’ motion to strike the Jones affidavit and denied their motion to compel by an order entered 13 December 2011. As to the motions by both parties for partial summary judgment, the trial court gave the following order, in pertinent part, on 14 February 2012: 3. Plaintiffs’ Motion for Partial Summary Judgment is granted and the relief sought in Plaintiffs’ First claim for relief is allowed based on the Court’s ruling that Waterway Drive is a private road. 4. Cedar Point’s Cross-motion for Partial Summary Judgment is denied. 6. This is a final adjudication of all issues in this case.3 Defendant timely filed notice of appeal to this Court on 14 March 2012. II. Dedication and Acceptance “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows — 549 — that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). Defendant first argues that the trial court erred in finding Waterway Drive to be a private road and thus in granting summary judgment to Plaintiffs. Specifically, Defendant first asserts that Front Street/Waterway Drive4 is a public municipal street by dedication. We disagree. There is no argument that a dedication was not made, so it is not necessary to examine the merits of the dedication. Thus, our discussion turns on the merits of any purported acceptance. A dedication of a road is a revocable offer until it is accepted on the part of the public in some recognized legal manner and by a proper public authority. A proper public authority is a governing body having jurisdiction over the location of the dedicated property, such as . . . an incorporated town ... or any public body having the power to exercise eminent domain over the dedicated property. Accepting in some recognized legal manner includes both express and implied acceptance. Kraft v. Town of Mt. Olive, 183 N.C. App. 415, 420-21, 645 S.E.2d 132, 137 (2007)(citations omitted)(internal quotation marks omitted). Defendant argues that the dedication was accepted expressly through formal acceptance, implicitly through acts of control, and through its inclusion on an official map. It also argues that Plaintiffs attempt to withdraw the dedication is ineffective as a matter of law. We examine each in turn. a. Express Acceptance “Express acceptance can occur, inter alia, by ‘a formal ratification, resolution, or order by proper officials, the adoption of an ordinance, a town council’s vote of approval, or the signing of a written instrument by proper authorities.’ ” Kraft, 183 N.C. App. at 420-21, 645 S.E.2d at 137 (citation omitted). Defendants claim that the dedication was accepted through the Resolution in 1989 and by the Notice of Acceptance of Dedication in 1990. — 550 — Plaintiff correctly asserts that the Resolution does not mention either Front Street or Waterway Drive. The catch-all provision pertains only to those dedications made from the date of the Resolution (27 June 1989) to 31 July 1989. The catch-all states, “Such other streets as shall be offered for dedication prior to July 31, 1989.” The word ‘shall’ indicates a prospective perspective. Further, the Resolution only serves to grant the mayor power to accept; it does not itself accept any dedications. Consequently, the Resolution is not, by itself, sufficient evidence of express acceptance of the dedication. Thus, Defendant turns to the Notice of Acceptance: this document declares that the town has previously accepted several dedications, including Front Street. However, this still fails to satisfy the requirement of an express acceptance because it does not actually accept the dedication, but merely notes a previous acceptance of which there is no express record. See Kraft, 183 N.C. App. at 420-21, 645 S.E.2d at 137 (requiring some sort of written express acceptance or evidence of a vote). Even if this Notice was intended as an acceptance, our precedent deems intent and acceptance as separate requirements, despite the fact that the former informs the latter. Kraft, 183 N.C. App. at 418, 645 S.E.2d at 135 (“Where an intention to dedicate is found, and followed by an acceptance by the public, the dedication is complete.” (emphasis added)). Further, the validity of the Notice is called in to question, as according to the testimony of the Town Administrator, several of the streets listed in this Notice as having been previously accepted were and are still maintained by the Department of Transportation and were never actually accepted for dedication by the town. We are not able to conclude that such a document provides evidence of express acceptance. Consequently, we find that neither document independently establishes acceptance and that, when read together, the documents do nothing more than loosely establish an intent to accept, either prospectively or retrospectively. Because this is not evidence of actual acceptance, we find no express acceptance of the dedication. b. Implied Acceptance An implicit dedication occurs when: (1) the dedicated property is used by the general public; and (2) coupled with control of the road by public authorities for a period of twenty years or more. To be clear, it is not — 551 — enough for the public to use the alley for twenty years, but the public authorities must assert control over [the alley]. Kraft, 183 N.C. App. at 420-21, 645 S.E.2d at 137 (alteration in original) (citations omitted)(internal quotation marks omitted). “[M]erely providing municipal services to homeowners in a subdivision within a municipality does not constitute ah implied acceptance by the municipality of dedication of a road when the homeowners have paid for those services by the payment of their ad valorem taxes.” Concerned Citizens of Brunswick County Taxpayers Ass’n v. Holden Beach Enterprises, Inc., 95 N.C. App. 38, 46, 381 S.E.2d 810, 815 (1989), rev’d on other grounds sub nom. Concerned Citizens of Brunswick County Taxpayers Ass’n v. State ex rel. Rhodes, 329 N.C. 37, 404 S.E.2d 677 (1991). Defendant argues that its control over the street is evidenced from its improvements (a water main in 1988 and fire hydrants in 1988 and 1998] cable TV lines in 1989), repairs (cleaning storm debris after hurricanes in 1996, 1999, and 2006), and patching asphalt in 2006 and 2010, plus sending garbage trucks down it weekly from 2001 on, adding it to the town’s map in 2005, refusing to abandon it on Plaintiff’s request in 20Í0, and applying for a permit to improve it in 2010. In Kraft, this Court found town acceptance of a dedication implicit by making improvements and repairs to the road. First, the Town paved the alley in approximately 1976. Second, the Town, without a utility easement, dug up portions of the alley to maintain and repair the sewer lines and other utilities. Third, the Town provided municipal service to the alley such as garbage, police, and fire service. Finally, as to the length of public use, there is evidence in the record indicating that the public and the Town had used the alley for over forty (40) years. Accordingly, under the rule in Gregorie, this evidence establishes that the Town has implicitly accepted the dedication of the alley. Kraft, 183 N.C. App. at 421, 645 S.E.2d at 137. This is distinguishable from the case sub judice. In Defendant’s own deposition, it stated that the trash collection was paid for by citizen’s taxes and garbage fees. Further, this activity started in 2001, less than twenty years ago. Excepting only the addi — 552 — tion of the water main, fire hydrants, and cable lines, none of Defendant’s claims establish control for the requisite period of twenty years, if they even establish control at all. Thus, if these three additions dating back to the 1980’s fail to establish control, there can be no implied acceptance, regardless of the control that may have begun in 2001, because the length of the time of control is not long enough. Defendants fail to establish control over Waterway Drive with the additions of the water main, fire hydrants, and cable lines. Unlike in Kraft, where the utilities work on the road in question was performed by the town itself, see 183 N.C. App. at 421, 645 S.E.2d at 137, the water main work on Waterway Drive was performed by the water company. The town did not perform the work. The same is true of the cable TV lines. This case is further distinguishable from Kraft because the town’s own recorded minutes from 27 April 2010 state that the taxpayers paid for the installation of the hydrants but the town is not respons-ible for their maintenance or for the water main maintenance. Thus, not only does Concerned Citizens of Brunswick County appear to resolve this due to the fact that the homeowners own taxes paid for the hydrant installation, see 95 N.C. App. at 46, 381 S.E.2d at 815, but the town has maintained no control over the street as a result of the installation because they have no maintenance responsibility. Because these three additions which date back to the 1980s fail to establish control and Defendant provides no other evidence of control for the requisite period of time, there is no implied acceptance evidenced on the record. c. Inclusion on Town Map Defendants next claim that the town manifested acceptance through inclusion of the street on an official map in 2005. “[S]imply including the road on the town map is insufficient evidence of the town’s intent to accept the road for public use.” Wiggins v. Short, 122 N.C. App. 322, 326, 469 S.E.2d 571, 575 (1996). More evidence is needed: “Acceptance may be manifested not only by maintenance and use as a public street, but by official adoption of a map delineating the area as a street, followed by other official acts recognizing its character as such.” Tower Dev. Partners v. Zell, 120 N.C. App. 136, 141, 461 S.E.2d 17, 21 (1995)(emphasis added)(citation omitted). As discussed above, there is no evidence of official acts following this inclusion in 2005 that would suffice to mark acceptance of the road. — 553 — d. Abandonment/Withdrawai Defendant argues that Plaintiffs’ attempt to withdraw the dedication was ineffective as a matter of law due to the fact that the dedication had already been accepted, Plaintiffs are not successors-in-interest to the dedicator, and/or the street is necessary for access to the lots should they be sold. We disagree. North Carolina law presumes any dedicated land abandoned if it has “not . . . been actually opened and used by the public within 15 years from and after the dedication thereof.” N.C. Gen. Stat. § 136-96 (2011)(emphasis added). While the presumption does not occur until a filing of withdrawal is made, the clock begins to run on the fifteen year period from the time of dedication. Id. “The dedication of a street. . . may not be withdrawn if the dedication has been accepted and the street, or any part of it, is actually opened and used by the public.” Tower Dev. Partners, 120 N.C. App. at 142, 461 S.E.2d at 21 (first emphasis added)(citation omitted). Thus, the street must both have some portion used and be accepted before the ability to withdraw the dedication is nullified. If the street is never accepted, withdrawal may still be made. And, if withdrawal occurs after the failure to open the street and fifteen years of nonuse by the public from the time of dedication, the dedicated land is presumed abandoned upon that filing. Defendant’s argument that withdrawal is ineffective because the dedication had been accepted necessarily fails based on our above discussion in which we found no such acceptance. With regard to Defendant’s argument that the individual property owners are not the successors in interest to the original owner, John Jones, the record is full of references to Plaintiff’s members as owners of the properties through which the street runs and which derive from John Jones’ original property. Further, this argument is waived for failure to raise it before the trial court. See Regions Bank v. Baxley Commercial Props., LLC, 206 N.C. App. 293, 298-99, 697 S.E.2d417, 421 (2010)(cita-tions omitted)(“In order to preserve an issue for appellate review, the appellant must have raised that specific issue before the trial court to allow it to make a ruling on that issue. . . . [I]t cannot ‘swap horses between courts in order to get a better mount [on appeal].’ ”). Finally, Defendant’s argument on the basis of necessary ingress and egress to any lots or parcels sold along it also fails. Plaintiff provided deposition testimony, evidence in a property owner’s deed (Defendant’s own exhibit), and statements from the Town’s meeting — 554 — minutes indicating that a private easement existed for property owners to use the street for ingress and egress, which runs to all heirs, assigns, and successors in interest. Thus, this argument is without merit; public access is not required in order to ensure ingress or egress to the property owners and their successors in interest. We note that there is ambiguity in the record as to whether Defendant accepted some portion of the original dedication,- now referred to as Sunset Drive, prior to Plaintiffs’ withdrawal of the Waterway Drive portion or whether this portion was abandoned by Defendant. Such acceptance would render withdrawal of any other portion of the original dedication, including Waterway Drive, ineffective as a matter of law. See Tower Dev. Partners, 120 N.C. App. at 142, 461 S.E.2d at 21. However, Defendant fails to make this argument in its brief and we are not at liberty to make it for Defendant. N.C. R. App. P. 28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or argument is stated, will be taken as abandoned.”). III. Easement by Prescription In order to prevail in an action to establish an easement by prescription, a plaintiff must prove the following elements by the greater weight of the evidence: (1) that the use is adverse, hostile or under claim of right; (2) that the use has been open and notorious such that the true owner had notice of the claim; (3) that the use has been continuous and uninterrupted for a period of at least twenty years; and (4) that there is substantial identity of the easement claimed throughout the twenty-year period. An easement by prescription is not favored in the law, and it is the better-reasoned view to place the burden of proving every essential element on the party who is claiming against the interests of the true owner. Deans v. Mansfield, _ N.C. App. _, __, 707 S.E.2d 658, 662 (2011) (citations omitted) (internal quotation marks, brackets, and ellipses omitted). North Carolina law presumes the use of another’s land is permissive, and, as such, the party claiming the easement must rebut this presumption with a showing of hostile use. Yadkin Valley Land Co., L.L.C. v. Baker, 141 N.C. App. 636, 639, 539 S.E.2d 685, 688 (2000). Thus, we need not examine the evidence of permissive use provided by Plaintiffs unless Defendant’s evidence successfully rebuts this presumption sufficiently for a prima facie showing of hostility. — 555 — “Mere use alone of a purported easement is not sufficient to establish the element of hostile use . . . .” Koenig v. Town of Kure Beach, 178 N.C. App. 500, 504, 631 S.E.2d 884, 888 (2006). In Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974), our Supreme Court found that even the “slight maintenance” of “raking leaves and scattering oyster shells in the roadway” may constitute hostile use under a claim of right. Id. at 583, 201 S.E.2d at 901. However, the “slight maintenance” found in this case was continuous for the requisite period. Id. There was no single instance of raking leaves or spreading shells that operated to make the use hostile, but rather the continued maintenance “to keep [the road] in passable condition” over the entire use did so. Id. Here, the only evidence of hostile use other than the public using the road for non-automotive travel is sporadic maintenance by the town, including removal of debris, installation of water mains and fire hydrants, and patching potholes. By Defendant’s own admission in its deposition, it does not consider its removal of debris after hurricanes maintenance. Such removal of debris is better categorized as waste or refuse removal, a service that the property owners paid for in their property taxes. There is no evidence on the record to indicate whether the installation of a water main and fire hydrants was permissive or not. Thus this fact does not help Defendant meet its burden. Considering, as discussed above, the taxpayers themselves paid for the installation of these hydrants, the evidence actually suggests that such installation was indeed permissive. There are only two instances of pothole repairs and they occur in 2006 and 2010. Even though the use by the public may have continued for the requisite twenty years, because that alone is insufficient, see Koenig, 178 N.C. App. at 504, 631 S.E.2d at 888, the Defendants’ evidence does not exemplify a hostile use until 2006. Thus, even if these two single acts are sufficient to put Plaintiffs on notice of Defendant’s claim of right, these acts do not meet the required length of time to claim a prescriptive easement. Consequently, Defendant failed to meet its burden and permissive use is presumed. IV. John Jones Affidavit Defendant argues that the trial court erred in striking the John Jones affidavit from the record. “We review an order striking an affidavit for abuse of discretion. The appellant must show not only that the trial court abused its discretion in striking an affidavit, but also that prejudice resulted from that error. This Court will not presume — 556 — prejudice.” Barringer v. Forsyth Cnty. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 246, 677 S.E.2d 465, 471-72 (2009)(cita-tions omitted)(intemal quotation marks omitted). [W]hen a trial court makes a discretionary decision, the court should make appropriate findings of fact and conclusions of law, sufficient to allow appellate review for abuse of discretion. . . . Failure to make findings upon request constitutes error. But where no request is made, it is presumed that the judge, upon proper evidence, found facts sufficient to support the judgment. Thus, when no findings are made there is nothing for the appellate court to review. Barringer, 197 N.C. App. at 253, 677 S.E.2d at 475 (citations omitted) (internal quotation marks and brackets omitted). “[0]ur review is limited to the record” before us. Kerr v. Long, 189 N.C. App. 331, 334, 657 S.E.2d 920, 922 (2008). There is nothing in the record indicating that any party requested that the trial court make findings of fact and conclusions of law in its order granting Plaintiffs’ motion to strike Mr. Jones’ affidavit. Accordingly, there is nothing upon which we can review the trial court’s discretionary order and we dismiss Defendant’s argument on this point. See Barringer, 197 N.C. App. at 253, 677 S.E.2d at 475. However, we note that even if the record were adequate to permit our review, Defendant fails to show it was prejudiced by the decision of the trial court. “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” N.C. Gen. Stat. § 1A-1, Rule 56(e)(2011). First, Defendant relies on the fact that the affiant, John R. Jones, is the son of the dedicator, John S. Jones, and original owner of the plats across which the street passes. However, this is irrelevant as it is clear from the affidavit that John R. Jones is not the owner of any of the lots that touch the street. Thus, his intent for the street to be public is of no matter here. Second, Defendant argues that the affidavit is needed to explain county commissioner minutes in the 1950s and demonstrate that gov — 557 — ernment funds were expended on the maintenance of the street in the mid-1950s. However, the affidavit does not allege personal knowledge of the county commissioner minutes, as it fails to allege that the affiant was present at these meetings. Further, it is clear from the affidavit that these government funds were not expended by Defendant because the town had not yet been incorporated. While the affiant freely admits he does not know where these government funds came from, it is irrelevant because this single act of clearing the street following a storm is not sufficient to establish control, as discussed above. Additionally, as Plaintiffs argue, the evidence on the record includes the deposition of the Clerk to the County Board of Commissioners, who declared that there were no records of any such maintenance ever occurring or being requested. Consequently, Defendant has failed to establish that they were prejudiced the trial court’s striking of this affidavit. The decision of the trial court should be affirmed. V. Denial of Defendant’s Cross-Motion Lastly, we note that Defendant argues that the trial court erred in denying its cross-motion for partial summary judgment which would have determined the street in question to be public. “Issues not presented in a party’s brief, or in support of which no reason or argument is stated, will be taken as abandoned.” N.C. R. App. P. 28(b)(6). Defendant asserts this argument in its brief under its “Issues Presented” section, but fails to make a clear argument in the body of the brief. It is thus abandoned. It is concluded in the first section of Defendant’s brief after each argument for a finding of acceptance of the dedication that the trial court erred in this manner, despite being set out as a separate issue. However, even if this is sufficient, the findings above preclude a finding of error on this point. For the reasons stated above, the order of the trial court is affirmed. Affirmed. Judge ELMORE concurring. Judge STROUDS concurring in part and dissenting. Footnotes [1] It is unclear exactly when the name changed from Front Street to Waterway Drive, but both parties contend it occurred around 1990. It is also unclear to what — 546 — extent the two overlap. Part of the Front Street right-of-way has been eroded and as a result, the roadbed “shifted” to its current location. It appears from the record that at least part of Waterway Drive is outside of the Front Street dedication, and Plaintiff’s third claim in the alternative was for inverse condemnation of that portion which was outside of the dedication over which defendant has asserted ownership. We will refer to this area as the “encroachment area." [2] Much of the evidence before the trial court was in the form of affidavits from local residents discussing their childhood memories of the area. As a result, the evidence discusses decades or portions thereof, rather than particular months or years. [3] We note on our own accord that despite the fact that the trial court granted only partial summary judgment, the order resolved all issues in this case. It appears that the trial court actually determined, by its terse ruling that “Waterway Drive is a private road” that there was no genuine issue of material fact as to any issue such that: (1) the Plaintiffs were entitled to withdraw the dedication of Front Street, so the area shown on the 1936 Plat was not a public road by dedication; and (2) Defendant had not acquired any prescriptive rights as to either the area shown on the dedication map or to the encroachment area. This is because the trial court expressly granted the relief sought in Plaintiffs first claim of its complaint, which requested both recognition of the legal effect of Plaintiff’s withdrawal and recognition of Defendant’s lack of right to enforce any purported easement. As this is then a final ruling on all issues, the appeal is not interlocutory and it is properly before this Court. [4] We will hereinafter refer to the street in question as “Waterway Drive” only, unless the context requires otherwise.