Horton v. Goodman

ARNOLD, Judge. Plaintiffs contend that the trial court erred in allowing the issue of abandonment of easement to be submitted to the jury in that there was insufficient evidence of abandonment. We disagree and find no error. North Carolina case law has historically recognized the principle that an easement, whether created by grant or prescription, may be abandoned. An easement may be abandoned by unequivocable acts showing a clear intention to abandon and terminate the right, or it may be done by acts in pais without deed or other writing. The intention to abandon is the material question, and it may be proved by an infinite variety of acts. It is a question of fact to be ascertained from all the circumstances of the case. Combs v. Brickhouse, 201 N.C. 366, 369, 160 S.E. 355, 356 (1931). The court submitted the issue of abandonment to the jury after receiving evidence that a fence, on which there were several “no trespassing” signs, had been erected across the roadway and [658] had remained there for at least six or seven years, that the road had been bulldozed and crops had been planted there for a period of about three years, that plaintiffs themselves had used an alternate route to reach their property, and that plaintiffs had, in fact, been given an express right-of-way separate from the roadway in question. This evidence is sufficient to warrant the submission of the issue of abandonment to the jury in that it tends to establish the intention of plaintiffs to abandon or terminate the easement. Plaintiffs next contend that the court erred in receiving the evidence of abandonment in that the issue was not raised by the pleadings. They allege that the injection of this issue for the first time at trial constituted prejudicial surprise. Again, we disagree. This Court has previously held that the trial court has the inherent right to amend pleadings and “allow answers or other pleadings to be filed at any time. . . .” Johnson v. Johnson, 14 N.C. App. 40, 43, 187 S.E. 2d 420, 422 (1972). This power is discretionary unless it interferes with vested rights or is prohibited by statute. Id. Since the original answer filed by defendants specifically alleged that plaintiffs used other means of access to the property, we fail to see how plaintiffs could have been surprised by the introduction of this and other evidence of abandonment at trial. As the Supreme Court held in Roberts v. Memorial Park, 281 N.C. 48, 187 S.E. 2d 721 (1972). “Even when the evidence is objected to on the ground that it is not within the issues raised by the pleadings, the court will freely allow amendments to present the merits of the case when the objecting party fails to satisfy the court that he would be prejudiced in the trial on the merits.” Id., at 58, 187 S.E. 2d at 727. After finding no prejudice to plaintiffs, the trial court did not abuse its discretion in allowing evidence of abandonment to be presented. Plaintiffs next contend that the court erred in admitting evidence as to negotiations and offers to settle between the parties. We recognize the rule that evidence of an offer to compromise or settle a disputed claim will not be admitted. Stein v. Levins, 205 N.C. 302, 171 S.E. 96 (1933). However, “an offer to compromise necessarily implies an existing dispute, a claim to be adjusted, or a controversy to be settled.” Wilson County Board of Education v. Lamm, 276 N.C. 487, 493, 173 S.E. 2d 281, 285 (1970). [659] In the case at bar, the testimony complained of by plaintiffs related to conversations between the parties which occurred before the roadway at issue had become the subject of any controversy or dispute. These discussions did not constitute settlement negotiations of an “existing” dispute, and were, therefore, properly allowed into evidence. Plaintiffs also contend that the court committed error in allowing evidence of alternate ways into the property in that this evidence was irrelevant and prejudicial. We find, however, that the evidence was relevant to show that plaintiffs did abandon the easement. The fact that plaintiffs or their predecessors blocked the road with a fence and elected to take an alternate way into the homeplace is inconsistent with their claim to the easement and tends to show their intent to abandon the roadway. See Wilmington Furniture Co. v. Cole, 207 N.C. 840, 178 S.E. 579 (1935). We find no error in the trial and, therefore, deem it unnecessary to consider defendants’ cross-assignment of error. No error. Judges Wells and Braswell concur.