McFadyen v. Olive

ARNOLD, Judge. Defendants’ sole contention is that the trial court erred in granting plaintiffs’ motion for summary judgment. Defendants argue that there is a genuine issue of material fact as to the existence of an easement implied from prior use across the McFadyen property. We agree. An easement implied from prior use is generally established by proof: (1) that there was common ownership of the dominant and servient parcels and a transfer which separates that ownership; (2) that, before the transfer, the owner used part of the tract for the benefit of the other part, and that this use was apparent, continuous and permanent; and (3) that the claimed easement is “necessary” to the use and enjoyment of the claimant’s land. Knott v. Washington Hous. Auth., 70 N.C. App. 95, 98, 318 S.E. 2d 861, 863 (1984). In the case sub judice, defendants have presented sufficient evidence of the above three requirements to raise an issue of fact regarding the existence of an easement implied from prior use. First, defendants have shown that there was common ownership of the Olive and McFadyen tracts. Both tracts were owned at one time by M. C. Smith and the transfer separating ownership occurred in 1906. Second, defendants have presented enough evidence to raise an issue of fact concerning the existence and use of the alleged pathway at the time of the 1906 transfer. In their affidavits before the court, Luther Puckett and Bertha Green stated that the reputation of the house on the Olive tract is that it had been there prior to 1900 and that no other pathway other than the one crossing McFadyen’s property provided access to the house. Reputation as to customs affecting land is not excluded by the hearsay rule. G.S. 8C-1, Rule 803(20); Broyhill v. Coppage, 79 [548] N.C. App. 221, 339 S.E. 2d 32 (1986). Testimony about customs affecting lands is not limited to the lifetime of the witness. Id. The affidavits of Luther Puckett and Bertha Green contain competent evidence sufficient to raise a question of fact whether a pathway on the McFadyen tract was used in 1906 for the benefit of the Olive tract and whether that use was apparent, continuous and permanent. Defendants have also presented proof of the third requirement in that they have shown the claimed easement is necessary to the use and enjoyment of their land since they have no other access to a public road. Accordingly, a genuine issue of material fact exists with respect to the existence of the easement. Even if a trier of fact finds that an easement implied from prior use existed at one time, it also must determine whether the easement was extinguished by adverse possession. An easement may be extinguished by adverse use by the owner of the servient property for the twenty-year prescriptive period. Skvarla v. Park, 62 N.C. App. 482, 303 S.E. 2d 354 (1983). In his deposition, George McFadyen testified that there had been no pathway across his property to the Olive tract since 1966. However, the affidavits of Luther Puckett, Richard Olive, Bertha Green and Jimmy Barbour conflict with McFadyen’s testimony. Thus, an additional issue of fact remains regarding the termination of the alleged easement. The trial court erred in granting plaintiffs’ motion for summary judgment on defendants’ counterclaim since genuine issues of material fact exist. Reversed and remanded. Judges Phillips and Cozort concur.