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NO. COA01-1047 NORTH CAROLINA COURT OF APPEALS Filed: 6 August 2002

JOSEPH T. CONNOLLY and wife, PATRICIA A. CONNOLLY; PHILLIP CRAWFORD; WENDELL HAINLIN and wife, MARY E. HAINLIN; RICHARD C. HALFORD and wife, MELINDA HALFORD; RONALD HALLIBURTON and wife, SHIRLEY HALLIBURTON; PATRICK S. LLOYD; MARK S. MORRIS and wife, DARLENE A. MORRIS; S. JASON TRONCALE and wife, LINDA L. TRONCALE; M. D. WARD and wife, ANNETTE P. WARD, Plaintiffs v. COLIN ROBERTSON, Defendant Appeal by defendant from an order entered 25 October 2000 by Judge James L. Baker, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 16 May 2002. Ball Barden & Bell, P.A., by Stephen L. Barden, III, for plaintiff-appellees. Ferikes & Bleynat, P.L.L.C., defendant-appellant. CAMPBELL, Judge. Summer Haven is a platted and recorded subdivision located in Buncombe County. Plaintiffs are homeowners who own lots in by Joseph A. Ferikes, for

sections "C" and "D" of Summer Haven. A circular road (hereinafter "Loop Road") serves these lots and is the subject of this appeal. Loop Road is a one-way road that has never been dedicated or used as a public way or accepted by any governmental body or agency. None of the lots acquired in Summer Haven gave plaintiffs a deed to Loop Road. Nevertheless, plaintiffs entered into a road

maintenance agreement, recorded around 1987, whereby they agreed to

-2"keep the routine maintenance [of Loop Road] going and any new pavement that needed to be done." As a partner in Bee Tree Land Partnership, defendant is one of the owners of a 253.35-acre tract of land (hereinafter "Bee Tree Property") that is located to the northwest of and adjacent to Summer Haven. The Bee Tree Property has access to a public road

and several other roads running throughout the tract. Despite this access to other roads, defendant, believing that he and the other owners of the Bee Tree Property had an easement appurtenant for ingress and egress across the roads within Summer Haven, began using Loop Road to access a portion of that property. Defendant

based his belief on a 1927 agreement (recorded in the Office of Register of Deeds in and for Buncombe County in Deed Book 371, at page 378) between the Summer Haven predecessors, H. A. and Vera Coggins, and the Bee Tree Property predecessors, C. T. Hodges and Carolina Florida Realty Company, that provided for a "full and unrestricted easement, right of way and perpetual right to the use of any and all of the streets . . . of the Summer Haven

property[.]" However, defendant and the other owners purchased the Bee Tree Property without any assurances that they actually had a right-of-way over the Summer Haven roads and defendant's deed of conveyance did not mention such a right-of-way. On 12 November 1998, plaintiffs filed a complaint in the Buncombe County District Court seeking to enjoin defendant from using the roads within Summer Haven, particularly Loop Road, to access the Bee Tree Property. On 8 February 1999, defendant filed

-3an answer raising as a defense his "right to ingress, egress and regress across said roadways as a result of an express grant of easement and fee simple ownership, or in the alternative, a

prescriptive easement, easement by dedication, an implied easement or an easement by estoppel."1 The parties consented to the

transfer of the case to the Buncombe County Superior Court on 14 April 1999. Plaintiffs filed a motion for summary judgment and notice of hearing that was dated 26 August 1999. Thereafter, defendant also

filed a motion for partial summary judgment on 11 January 2000. Both summary judgment motions were denied. The trial on this matter was held on 16 October 2000.

Plaintiffs presented evidence of their status as lot owners in Summer Haven. from a Additionally, plaintiffs presented expert testimony attorney in North Carolina, Douglas Thigpen

licensed

("Attorney Thigpen").

Attorney Thigpen testified that in his

opinion the 1927 agreement did not convey an interest in the roads to defendant or his predecessors in title. At the close of

plaintiffs' evidence, defendant moved for directed verdict based, in part, on plaintiffs' lack of standing to make such a claim. This motion was denied. Defendant presented evidence, which included expert testimony from another licensed attorney in North Carolina, John Parce ("Attorney Parce").
1

Attorney Parce testified that in his opinion

Defendant also counterclaimed for malicious prosecution, but this claim was severed on 19 June 2000 and a separate trial was ordered.

-4the 1927 agreement did grant defendant an interest in the Summer Haven roads. Defendant's expert also attempted to present evidence that defendant had fee simple ownership of the Summer Haven roads pursuant to a 1999 deed received from William T. Penrod, Jr. ("Penrod, Jr."), allegedly the sole heir to the remaining property and roads in Summer Haven. The trial court did not allow Attorney

Parce to testify as to his opinion regarding ownership of the roads, but his opinion was heard by the court on voir dire. Afterwards, defendant presented additional evidence with respect to his having an interest in the roads based on a prescriptive easement and/or an easement by express grant. At the close of defendant's evidence, plaintiffs moved for a directed verdict on all issues raised by defendant. The

plaintiffs' motion was granted.

On 25 October 2000, the trial

court entered an order "prohibit[ing] and permanently enjoin[ing defendant] from using the loop road located in Sections C and D of Summer Haven Subdivision or the right-of-way shown on the plats of Sections C and D for access to property in which Defendant has an ownership interest located near or adjacent to the Summer Haven Subdivision." Defendant appeals. I. Standing

By defendant's first assignment of error he argues plaintiffs lack standing to challenge his use of Loop Road. Specifically,

defendant contends that since none of the plaintiffs' lots included a deed to Loop Road, their only legal rights are to use the road

-5without interference but that plaintiffs have no right to enjoin him from using the road. We disagree.

In Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964), our Supreme Court addressed a similar situation involving a lot owner's right to the streets in the subdivision to which he or she had no ownership interest. part, that: Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets . . ., a purchaser of a lot or lots acquires the right to have the streets . . . kept open for his reasonable use . . . . It is said that such streets . . . are dedicated to the use of lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. It is a right in the nature of an easement appurtenant. . . . [that] may not be extinguished, altered or diminished except by agreement or estoppel. Id. at 421, 135 S.E.2d at 35-36 (citations omitted). An easement The Supreme Court held, in pertinent

appurtenant "adheres to the land, cannot exist separate from it, and can be conveyed only by conveying the land involved; its use is limited to the land it was created to serve and cannot be extended to other land or other landowners without the consent of all owners of the easement." Frost v. Robinson, 76 N.C. App. 399, 400, 333

S.E.2d 319, 320 (1985) (holding that an easement appurtenant created only to serve lots owned by the plaintiff and the defendant could not be partially deeded by the defendant for use by the owner of an adjacent tract of land immediately behind the defendant's lots because that owner had no interest in the easement

-6appurtenant). (1912). Plaintiffs in the present case have an easement appurtenant in Loop Road. The property they own is "shown and described on plats See also Wood v. Woodley, 160 N.C. 17, 75 S.E. 719

recorded in the Buncombe County Registry of Deeds in Plat Book 7, at Page 24, 35, and 36 and in Plat Book 10, at Page 23." As such,

plaintiffs have a right to ensure that the road is not extended to other lands (such as the Bee Tree Property) or used by other landowners (such as defendant) without their consent, especially when that use will likely alter or diminish plaintiffs' use. Thus, plaintiffs have the right to bring an action seeking to enjoin defendant's use of Loop Road if he does not have an interest in the road and is attempting to interfere with their use of it by making the road available to all the other owners of the 253.53-acre tract that comprises the Bee Tree Property. See generally Frost, 76 N.C. App. at 400-01, 333 S.E.2d at 320.

II.

Directed Verdict

With respect to defendant's three remaining assignments of error, they each present a different theory under which defendant attempted to prove he was legally entitled to use the Summer Haven roads, in particular, contends Loop the Road. trial By these assigned in errors

defendant

that

court

erred

ultimately

directing verdicts against him on the issues of (A) fee simple ownership, (B) easement by prescription, and (C) easement by express grant. We disagree as to all three assignments of error.

-7"A motion for directed verdict tests the sufficiency of the evidence to take [a] case to the jury." Abels v. Renfro Corp., 335 It is appropriately

N.C. 209, 214, 436 S.E.2d 822, 825 (1993).

granted only when by looking at the evidence in the light most favorable to the non-movant, and giving the non-movant the benefit of every reasonable inference arising from the evidence, the evidence is insufficient for submission to the jury. Cotton, 133 N.C. App. 80, 514 S.E.2d 539 (1999). Streeter v.

A trial court's

decision to grant or deny a motion for directed verdict should not be disturbed absent an abuse of discretion. G.P. Publications,

Inc. v. Quebecor Printing-St. Paul, Inc., 125 N.C. App. 424, 481 S.E.2d 674 (1997). A. Fee Simple Ownership

By his second assignment of error, defendant argues the court erred in excluding the testimony of Attorney Parce regarding defendant's claim to ownership of the Summer Haven roads, which ultimately led to a directed verdict against him on the issue of fee simple ownership of the roads. The general rule is that the party attempting to claim

possession of land has the burden of proving that he has good title against the whole world or against the opposing party by estoppel. Mobley v. Griffin, 104 N.C. 112, 114, 10 S.E. 142, 142 (1889). A

prima facie showing of title may be made by offering a connected chain of title to the party. Id. This connected chain of title

can be established by relevant documentation, such as deeds, as well as through the opinions of expert witnesses who have based

-8their opinions on this documentation or other evidence that may or may not be otherwise admissible. See 1 Henry Brandis, Jr., Brandis on North Carolina Evidence,

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