Clifton v. Fesperman

ARNOLD, Judge. Plaintiffs contend that the trial judge misinterpreted the law in granting defendants’ motion for summary judgment. While the trial judge inadvisedly made extensive findings of fact and conclusions of law in ruling on defendants’ motion, they are disregarded on appeal. W. Shuford, N.C. Civil Practice and Prodedure § 56.6 (1980 Supp.); see, Lee v. King, 23 N.C. App. 640, 209 S.E.2d 831, cert. denied, 286 N.C. 336, 211 S.E. 2d 213 (1974). We find that the trial j udge properly granted summary j udgment for defendants. In North Carolina, use of a way over another’s land is [181] presumed permissive or with the owner’s consent unless the contrary is shown by competent evidence. Watkins v. Smith, 40 N.C. App. 506, 253 S.E. 2d 354 (1979). Plaintiffs chose to rest on the stipulations, offering no evidence, through affidavits or otherwise, that their use of the way across defendants’ property was other than by permission. Therefore, plaintiffs have failed to demonstrate that their use was adverse to defendants’ interests, an essential element of a prescriptive easement, especially in light of the presumption that their use was permissive. Id. Where a defendant seeking summary judgment carries his burden of proving a lack of genuine issue of fact for trial by evidentiary presumption or otherwise, the plaintiff may not rely on his bare allegations to the contrary but must, by affidavits or otherwise, set forth specific facts showing a genuine issue of fact for trial to defeat defendants’ motion. Doggett v. Welborn, 18 N.C. App. 105, 196 S.E. 2d 36, cert. denied, 283 N.C. 665, 197 S.E. 2d 873 (1973). Plaintiffs failed to offer evidence to rebut the presumption of permissive use and therefore are subject to defendants’ motion for summary judgment. The ruling of the trial judge allowing defendants’ motion for summary judgment is Affirmed. Chief Judge Morris and Judge Hill concur.