Caldwell v. Branch

638 S.E.2d 552

Chad Everette CALDWELL and wife, Crystal Cope Caldwell, Plaintiffs, v. Randy DeWitt BRANCH and Kristy N. Crawford, Defendants.

No. COA06-94.

Court of Appeals of North Carolina.

January 2, 2007.

Appeal by defendant from order entered 1 August 2005 by Judge W. Robert Bell in Gaston County Superior Court. Heard in the Court of Appeals 18 September 2006.

R. Locke Bell, Gastonia, for plaintiffs-appellees.

Malcolm B. McSpadden, Gastonia, for defendant-appellant Randy DeWitt Branch.

JACKSON, Judge.

On 1 August 2005, the Gaston County Superior Court found that Chad Everette Caldwell and Crystal Cope Caldwell ("plaintiffs") had acquired an easement by prescription over property owned by Randy DeWitt Branch and Kristy N. Crawford. Branch ("defendant") appealed to this Court, and we now affirm.

The instant dispute arose over a right-of-way across a parcel of land in Bessemer City, North Carolina, and all parties in the case are related by blood or marriage. The servient tract ("Tract C") is a 0.42-acre parcel fronting Inman Avenue, and the dominant tract ("the Caldwell Property") is located to the west of and adjacent to Tract C. A 0.27-acre lot ("Tract B") sits directly to the north of and contiguous to Tract C. Another 0.27-acre lot ("Tract A") sits directly to the north of and contiguous to Tract B. The lot directly to the south of Tract C ("the Branch Property") is owned by defendant's parents.

In 1958, plaintiff's grandparents built a house on the Caldwell Property. At the time, defendant's mother and father lived on the Branch Property; an Episcopal Church building sat on Tract A; and the Episcopal rectory was located on Tract B. During the construction of the Caldwell home, workers and vendors used Tract C for access to the Caldwell Property. By the time the house was completed, a de facto driveway spanning approximately 149 feet had been created that bisected Tract C and ran east to west from Inman Avenue to the Caldwell Property. The Caldwells and Branches, as well as their predecessors in interest, have referred at all times to the driveway as the "Caldwell driveway," and a mailbox for the Caldwell Property was placed at the end of the driveway where it intersects with Inman Avenue.

From 1958 to 1990, the Episcopal Church used Tract C for parking. During this period of time, the Caldwells and any visitors to the Caldwell Property used the driveway to access the Caldwell Property. Also during this time, the Branches occasionally parked their cars on Tract C and used the driveway to access their property. Neither the Caldwells nor the Branches ever requested permission from the church to use the driveway. Additionally, although neither the Caldwells nor the Branches asked permission to maintain the driveway, both contributed to its maintenance. At various times over the thirty-two-year period, members of the Caldwell family scraped the driveway with a tractor, spread additional gravel on the driveway, and sufficiently preserved the driveway's condition so that cars could traverse it. Dewitt Branch, defendant's father, also scraped the driveway with a tractor and spread cinders from his mill when the driveway became muddy. At some point prior to 1990, plaintiff Chad Caldwell, without having asked or received permission from the church, paved a portion of the driveway with concrete to prevent rain runoff from causing the driveway to become rutted. Through such maintenance, the path of the driveway has remained the same over the years.

With the exception of a few months following his marriage in 1990, Chad Caldwell has lived in the Caldwell house since he was born on 7 August 1971. In 1994, Chad Caldwell purchased the house and property from his grandfather, and the Caldwell Property formally was conveyed to plaintiffs by deed recorded 4 December 2002.

In 1990, Dewitt Branch purchased Tracts A, B, and C from the Episcopal Church, which was in the process of relocating. Without asking permission from the Branches, plaintiffs and visitors to the Caldwell Property continued to use the driveway for ingress and egress, and the Branches, aware of such use, did not object.

In 1996, DeWitt Branch told defendant that he would give defendant Tract C, and in 2002, the property was deeded to defendant. Chad Caldwell then asked defendant if he could continue to use the driveway to access his property. Defendant, who was planning to build a house on Tract C, refused to allow plaintiffs continued access over the right-of-way in dispute, but stated that he would find another point of access for plaintiffs.¹ Nevertheless, plaintiffs and visitors to the Caldwell Property continued to use the driveway until defendant blocked the driveway in January 2003. Consequently, on 17 January 2003, plaintiffs filed suit claiming they had acquired an easement across Tract C and that defendant was interfering with the use of that easement. The trial court found in favor of plaintiffs, and defendant appeals from that ruling.

As a preliminary matter, we note that defendant's brief fails to comport fully with the North Carolina Rules of Appellate Procedure. Rule 28(b)(6) provides that "[t]he argument shall contain a concise statement of the applicable standard(s) of review for each question presented, which shall appear either at the beginning of the discussion of each question presented or under a separate heading placed before the beginning of the discussion of all the questions presented." N.C. R.App. P. 28(b)(6) (2006). Rule 28(b)(6) further requires that "the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies." Id. In the case sub judice, defendant has not provided this Court with the applicable standard of review, much less citation of authorities supporting such a standard, for his contention that the trial court erred in finding a prescriptive easement in favor of plaintiffs.

"The North Carolina Rules of Appellate Procedure are mandatory," Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (per curiam), reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005), and Rule 25(b) of the Rules of Appellate Procedure provides this Court with the authority to impose sanctions for failure to follow the rules. See N.C. R.App. P. 25(b) (2006). It appears to be the trend of this Court to more severely penalize parties for "substantial," "numerous," or "multiple" violations of our appellate rules, rather than a single violation such as is present in the instant case. See Stann v. Levine, ___ N.C.App. ___, ___, 636 S.E.2d 214, 217 (2006) ("When viewed in toto, the nature and number of rules violations, combined with the absence of any compelling justification for suspending the rules pursuant to Rule 2, justifies dismissal of plaintiff's appeal."). Although we could dismiss defendant's assignment of error as a sanction, see, e.g., State v. Summers, ___ N.C.App. ___, ___, 629 S.E.2d 902, 908, disc. rev. denied and appeal dismissed, ___ N.C. ___, 637 S.E.2d 192 (2006) (No. 358P06), we instead choose to order defendant's counsel to pay the printing costs of this appeal pursuant to Rule 34(b), as defendant's single violation is not substantial. Cf. Overcash v. N.C. Dep't of Env't & Natural Res., ___ N.C.App. ___, ___ n. 2, 635 S.E.2d 442, 446 (2006) (reviewing the appeal even though the petitioner "ha[d] not complied with N.C. R.App. P. 28(b)(6), which requires not only that `[t]he argument ... contain a concise statement of the applicable standard(s) of review,' but also that the statement of the standards of review `contain citations of the authorities upon which the appellant relies.'"). We instruct the Clerk of this Court to enter an order accordingly.

"The standard of review on appeal from a judgment entered after a non-jury trial is `whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.'" Cartin v. Harrison, 151 N.C.App. 697, 699, 567 S.E.2d 174, 176 (quoting Sessler v. Marsh, 144 N.C.App. 623, 628, 551 S.E.2d 160, 163, disc. rev. denied, 354 N.C. 365, 556 S.E.2d 577 (2001)), disc. rev. denied, 356 N.C. 434, 572 S.E.2d 428 (2002).

It is well-settled that to establish the existence of a prescriptive easement, the party claiming the easement must prove four elements concerning the property:

(1) that the use is adverse, hostile or under a claim of right; (2) that the use has been open and notorious such that the true owner had notice of the claim; (3) that the use has been continuous and uninterrupted for a period of at least twenty years; and (4) that there is substantial identity of the easement claimed throughout the twenty-year period.

Potts v. Burnette, 301 N.C. 663, 666, 273 S.E.2d 285, 287-88 (1981); see also West v. Slick, 313 N.C. 33, 49-50, 326 S.E.2d 601, 610-11 (1985). Mere failure of the owner of the servient tenement to object — even if he was aware of the use — is insufficient, as the party seeking to claim the easement must overcome the presumption that a party's use is permissive and not adverse. See Henry v. Farlow, 238 N.C. 542, 543-44, 78 S.E.2d 244, 245 (1953); see also Cannon v. Day, 165 N.C.App. 302, 307, 598 S.E.2d 207, 211, disc. rev. denied, 359 N.C. 67, 604 S.E.2d 309 (2004). Indeed, "`[t]here must ... be some evidence accompanying the user, giving it a hostile character and repelling the inference that it is permissive and with the owner's consent, to create the easement by prescription and impose the burden upon the land.'" Farlow, 238 N.C. at 544, 78 S.E.2d at 245 (quoting Darr v. Carolina Aluminum Co., 215 N.C. 768, 772, 3 S.E.2d 434, 437 (1939)). However, our Supreme Court has clarified the hostility requirement by explaining that

it is not necessary to show that...