Preview:

YADKIN VALLEY LAND COMPANY, L.L.C., Plaintiff, v. H. WADE BAKER and wife, LOLA W. BAKER and JAMES MICHAEL TRENT and wife, JUDY TRENT and BETTY M. FLINCHUM, Defendants ------------------------------------YADKIN VALLEY LAND COMPANY, L.L.C., Plaintiff, v. H. WADE BAKER and wife, LOLA W. BAKER, Defendants No. COA99-1243 No. COA99-1244 (Filed 29 December 2000) Easements--prescription--failure to establish requisite hostile nature of use The trial court did not err by granting summary judgment in favor of defendants on plaintiff's claims for an easement by prescription because the evidence presented is insufficient to establish the alleged use of the extensions by plaintiff and its predecessors over defendants' lands was adverse, hostile, or under claim of right when: (1) there is no evidence indicating whether defendants ever consented or objected to any use of the extensions by plaintiff, nor is there evidence of the manner in which the alleged extensions have been used; (2) there is no evidence that permission was ever sought to use the extensions, and plaintiff's evidence indicates that none of the defendants ever voiced an objection to the use of the extensions by plaintiff's predecessors; (3) there is no evidence that plaintiff or its predecessors ever made repairs or improvements to the extensions that would give notice to defendants of their use of the extensions; and (4) using the extensions as the sole means of access to the combined property alone does not rebut the presumption of permissive use. Appeal by plaintiff from judgments entered 15 June 1999 by Judge Howard R. Greeson, Jr. in Superior Court, Surry County. Heard in the Court of Appeals 25 August 2000. Daniel J. Park, P.A., by Daniel J. Park, for plaintiffappellant. Wilson & Iseman, L.L.P., by Linda L. Helms, for defendantsappellees H. Wade Baker and wife, Lola W. Baker, and Conner Gwyn Schenk PLLC, by Allen Holt Gwyn and Paul E. Davis, for defendants-appellees James Michael Trent and wife, Judy Trent, and Betty M. Flinchum, in case No. 97 CVS 677. Wilson & Iseman, L.L.P., by Linda L. Helms, for defendantsappellees H. Wade Baker and wife, Lola W. Baker, in case No. 97 CVS 676. WYNN, Judge. In February 1996, Yadkin Valley Land Company, L.L.C., a North Carolina limited liability company, acquired title in fee to

certain

real

property

located

in

Surry

County

consisting

of

approximately 887 acres divided into various tracts.

The portion

of Yadkin's property at issue in case No. 97 CVS 677 is a tract consisting of approximately 63 acres (the "south property"). The

portion of Yadkin's property consisting of approximately 50 acres (the "east property") is the subject of case No. 97 CVS 676, a companion case also before this Court. Because the issues

presented in these companion cases are identical, and the facts virtually so, we refer to the south property and the east property collectively as "the combined property"; and, we consolidate the two cases on appeal to render this single opinion on all issues. Yadkin's south property is bordered generally on three sides, to the south, east and west, by the Ararat River. To the north,

Yadkin's south property is bordered by property owned by defendants James Michael Trent and his wife, Judy Trent, and by property owned by defendant Betty M. Flinchum. Defendants H. Wade Baker and his

wife, Lola W. Baker, own property located adjacent to and generally north of the Trents' property and the Flinchum property. Yadkin's east property is bordered generally on three sides, to the south, east and north, by the Ararat River. To the west,

Yadkin's east property is bordered by property owned by the Bakers. Prior to Yadkin's ownership, Crescent Resources, Inc.

(formerly Crescent Land and Timber Corp.) owned the property from 16 January 1989 until 13 February 1996. Power Company owned the property. Before that time, Duke

Neither the south property nor Crackers Neck

the east property is accessed by any public road.

Road, a public road (SR 2046), ends as a state-maintained road on

the Bakers' property. On 23 June 1997, Yadkin filed separate complaints--one each in connection with the south property and the east property--setting forth three claims: (1) easement by necessity, (2) easement by prescription, and (3) right to statutory cartway under N.C. Gen. Stat.

Download 99-1243-7.pdf

South Carolina Law