Rathburn v. Hawkins

CLARK, Judge. The sole issue before this Court is whether the trial court erred in granting summary judgment for defendants. G.S. 1A-1, Rule 56, provides that a motion for summary judgment is properly granted if the pleadings and other documents filed show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. An issue is material if the facts alleged “would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.” Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E. 2d 897, 901 (1972). In Dickinson v. Pake, 284 N.C. 576, 580-81, 201 S.E. 2d 897, 900-01 (1973), the Supreme Court in a decision written by Huskins, J., traced the development in this State of the law concerning prescriptive easements. The decision enumerated the following legal principles applicable to prescriptive easements: “1. The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement. . . . 2. The law presumes that the use of a way over another’s land is permissive or with the owner’s consent unless the contrary appears. . . . 3. The use must be adverse, hostile, or under a claim of right. . . . 4. The use must be open and notorious. . . . 5. The adverse use must be continuous and uninterrupted for a period of twenty years. . . . 6. There must be substantial identity of the easement claimed. . . .” (all citations omitted) [85] The facts in Dickinson are very similar to those of the case sub judice. In each case, the roadway was used continuously by the plaintiffs under such circumstances as to give defendants notice that the use was adverse, hostile or under claim of right; the roadway was the only means of access to the house on the property; the defendants had placed a fence (this case) and shrubbery and old tires {Dickinson) along the edge of the driveway; and plaintiffs had performed some maintenance on the roadway. Our Supreme Court held in Dickinson that the evidence was sufficient to rebut the presumption that the use was permissive and to submit the issue to the jury. See, Potts v. Burnette, 301 N.C. 663, 273 S.E. 2d 285 (1981). In the case before us the parties offered conflicting proof on the question of whether plaintiffs asked for permission to use the driveway. In Dickinson, however, there was no evidence that plaintiff had ever sought or that defendants had ever given permission to use the roadway. Therefore, it is obvious that the conflicting evidence concerning permission to use the driveway is crucial to the outcome of the case here presented and must be resolved. The testimony of plaintiff and defendant is contradictory on this issue: Mr. Hawkins averred that plaintiff sought permission to use the roadway, which was granted; however, Mr. Rathburn denied that this conversation had in fact occurred. Therefore, it is for the trier of facts, not the court, to determine which party is to be believed. “[I]f there is any question as to the credibility of affiants in a summary judgment motion or if there is a question which can be resolved only by the weight of the evidence, summary judgment should be denied.” City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 655, 268 S.E. 2d 190, 193-94 (1980). See also, Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979). Based upon the decision in Dickinson v. Pake, supra, we believe that the forecast of plaintiffs’ evidence was sufficient to show adverse possession, if the disputed permission issue can be resolved in plaintiffs’ favor. The mere fact that defendants at the taking of the depositions were able to elicit from plaintiffs the statements that they had no intention of taking property from defendants is not in itself sufficient to negate adverse possession. [86] The evidence tended to show that plaintiffs adversely possessed the driveway under claim of right. This claim appears to have been recognized by defendants as shown by the plat attached to their deed to Abe Anders recorded in Book 1082, Page 738, Buncombe County Registry, on which the right-of-way is indicated, and also as acknowledged in the conversation between Mr. Hawkins and Mr. Rathburn concerning moving the location of the driveway. We note that the plaintiffs as owners have not shown adverse use for the statutory period of twenty years. They became record title holders of the property in October 1960, and therefore they were about six months short of the requisite period at the time defendants’ withdrew permission (March 1980). Since it appears from the record that the driveway has been in existence as long as has the house itself, this should pose no problem for plaintiffs. They, of course, can tack the possession of their predecessor in title (including plaintiffs’ possession as tenants and agents of the owner) to their own use, as long as they offer proof at trial that the requirements to establish prescriptive use also existed in their predecessor. Alexander v. Gibbon, 118 N.C. 796, 24 S.E. 748 (1896); J. Webster, Real Estate Law in North Carolina § 262 (1971). We conclude that summary judgment was improvidently entered because the record discloses a material issue of fact. Reversed. Judges WHICHARD and BECTON concur.