Opinion
No. COA07-104.
Filed February 19, 2008.
Onslow County No. 03 CVS 1911.
Appeal by defendants and intervenor-defendants from judgment entered 31 August 2006 by Judge Russell J. Lanier, Jr., in Onslow County Superior Court. Heard in the Court of Appeals 10 October 2007.
Wallace, Morris, Barwick, Landis Stroud, P.A., by P.C. Barwick, Jr., for plaintiff. Batts, Batts, Bill, LLP, by Jeffrey A. Batts and Wendy P. Wilson, for defendants. Ronald E. VonLembke for intervenor-defendants.
On 31 August 2006, the Onslow County Superior Court granted summary judgment in favor of J. Brian Scott (plaintiff) and against Ernest L. Ross and his wife, Joyce H. Ross, and D G Development Company, LLC (collectively, defendants), as well as Charles D. Williamson and Betty A. Williamson (together, intervenor-defendants). Defendants and intervenor-defendants now appeal.
Facts
The Scotts, Rosses, and Williamsons all own property in a Swansboro subdivision. The three families, along with individuals who are not parties to this action, own an easement over Shore Road, which leads from the public road to the subdivision (Shore Road easement). The Shore Road easement is sixty feet wide. Bynum Lane runs perpendicular to Shore Road and provides access to the properties owned by the Rosses and Scotts, as well as a third individual, Harry Bynum, who is not a party to this action. Bynum Lane terminates at the Scotts' property. The Scotts, Rosses, and Bynums own a thirty foot easement over Bynum Lane for ingress and egress (Bynum Lane easement). D G Development Company, LLC, of which Ernest Ross is a member, owns six other lots in the subdivision. These lots abut the Williamsons' property and are also accessed from Shore Road.
In 2001, Ernest Ross made improvements to Bynum Lane. These improvements include paving the road with a concrete and brick surface, and installing shrubbery along the side of the road. It is undisputed that the new pavement and shrubbery is located within the bounds of the Bynum Lane easement. At the same time, D G Development Company made improvements to Shore Road. These improvements include wider pavement, roll curbing, a traffic control island, brick entrance structures, shrubbery, and trees. Donald Williamson paid half the costs of some of the Shore Road improvements. It is undisputed that these improvements are located within the bounds of the Shore Road easement. Prior to making the Shore Road improvements, D G Development Company removed existing telephone poles and lines and replaced them with underground lines.
In plaintiff's answers to defendants' first set of interrogatories, plaintiff stated that Mr. Ross discussed with plaintiff "the concept of installing a traffic control gate on ?Shore Road, to control vehicular traffic coming into and leaving the area," and plaintiff stated that he was "very interested in this possibility." The two men also discussed the possibility of extending the pavement from Shore Road along Bynum Lane. Plaintiff did not object to the possibility of paving a portion of Bynum Lane, and told Mr. Ross that neither he nor the Bynums were interested in extending the pavement in front of their properties.
When plaintiff drove to the subdivision on 9 November 2001, he saw that "[i]t was apparent that the Defendants were in the beginning phase of an extended construction project, and had assumed full control and use of both Bynum Lane and [Shore] Road, without [his] knowledge or approval." Plaintiff contacted Mr. Ross and strenuously objected to the construction project. He recommended that Mr. Ross contact an attorney regarding the legality of the improvements. Plaintiff stated that "[a]lmost everyone who has come to my property since Defendants completed their `alterations', has commented that they felt inhibited by these alterations, inasmuch as it appeared that they had to enter and pass through Defendants' property in order to reach my property. . . ."
A prior subdivision property owner sent a letter to the Rosses in 1996 advising them that they had extended their yard into the Shore Road easement. The letter requested that the Rosses keep the right of way open or, "to avoid any claim of ownership by adverse possession," the previous owner would "remove the encroachment or take whatever legal action is necessary to have it removed."
Plaintiff filed his complaint against defendants on 14 December 2001 in Nash County. It was later removed to Onslow County. The Williamsons moved to intervene on 24 March 2004 and were added as intervenor-defendants. Both parties moved for summary judgment, which was granted to plaintiff. Defendants offer three arguments on appeal.
Plaintiff's Ownership Interest in Shore Road
Defendants first argue that "plaintiff's allegation that he has an ownership interest in Shore Road through estoppel by deed, even if adequately shown, does not operate against D G Development." This argument stems from an assignment of error questioning "[t]he court's failure to rule on Plaintiff's allegation that he possessed an ownership interest in Shore Road." A review of the cited portion of the transcript reveals that the trial court was not asked to make any ruling on this issue. Indeed, later in the transcript, the court asked defense counsel about plaintiff's ownership interest in Shore Road. Defense counsel responded,
[M]y client will not dispute that Mr. Scott has had a, one-fifteenth interest arise because the Doctrine of, Estoppel by deed does not allow him to act as a, co-tenant in the fee simple as to D G Development, which was an innocent purchase of value prior to his, recordation, so we're willing to acknowledge that, but, it doesn't have any impact on us today.
(Emphasis added). Therefore, the trial court could not have erred by failing to make a ruling when none was requested. This issue has not been preserved for appellate review and is dismissed.
Summary Judgment: Shore Road
Defendants next argue that the trial court erred by granting plaintiff's motion for summary judgment and denying defendants' motion for summary judgment because plaintiff failed to show that his use of Shore Road and Bynum Lane has been obstructed by defendants' improvements.
"The standard of review for summary judgment is de novo [sic]." Forbis v., Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citation omitted). "Summary judgment is appropriate if `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Id. at 523-24, 649 S.E.2d at 385 (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005)). Defendants acknowledge that the Shore Road improvements are located within the sixty foot right-of-way, but argue that the improvements do not impair plaintiff's use of the right-of-way. They point to plaintiff's answers to defendants' interrogatories in support of their contention. They aver that the substance of plaintiff's complaints is that there are objects within the right-of-way, not that his actual ingress or egress has been hindered by those objects. The issue is whether plaintiff is entitled to access all sixty feet of the Shore Road easement, or if he is entitled only to access as much of the Shore Road easement as is minimally necessary to allow his ingress and egress.
In the 1943 case of Broocks v. Muirhead, our Supreme Court held that the plaintiff was entitled to injunctive relief when the defendant built brick walls within a sixteen foot wide easement that was intended to be used as an alley. 223 N.C. 227, 233, 25 S.E.2d 889, 892-93 (1943). The Court noted that the easement was not being used as an alley and that the plaintiff had not shown that the defendants had "placed any obstructions upon the strip of land which ha[d] prevented the use of it by plaintiffs" as an alley. Id., 25 S.E.2d at 893. Nevertheless, the Court held that "to the extent that the brick walls are an obstruction[,] defendants are interfering with the use of the alleyway. And the remedy of injunction is available to her." Id.
Similarly, in Stanley v. Laughter, we stated that "[w]here the dedication is created by the sale of lots with reference to a plat showing streets, parks, or alleyways, each purchaser has the right to have any that are not opened kept in such manner that they are free to be opened to their full length and width." 162 N.C. App. 322, 327, 590 S.E.2d 429, 433 (2004) (citations and quotations omitted). In Stanley, the defendant acquired a sixty foot easement by plat dedication. A thirty foot road occupied half the width of the sixty foot easement. When the defendant purchased his land, he could not access the easement or the road because a thick covering of trees and shrubs blocked his way. He removed the trees and shrubs within the easement that prevented him from accessing the road. His neighbor, the plaintiff, sued. We held that the "defendant was entitled to use the entire sixty-foot wide easement, [and therefore] he was free to remove the trees and shrubs, open the easement, and use it for its intended purpose of ingress, egress, and regress from his . . . tract." Id. at 328, 590 S.E.2d at 433 (citing Insurance Co. v. Carolina Beach, 216 N.C. 778, 787-88, 7 S.E.2d 13, 20 (1940)).
Accordingly, we hold that the trial court did not err by granting plaintiff's motion for summary judgment because no genuine issue of material fact exists as to whether plaintiff was entitled to injunctive relief regarding the improvements made to Shore Road. Plaintiff is entitled to use the entire sixty foot easement.
Summary Judgment: Bynum Lane
Defendants argue that plaintiff is not entitled to summary judgment as to the improvements in the Bynum Lane easement because, as a tenant in common with plaintiff, defendant Ross has the right to occupy and use the entire property at all times and in all circumstances unless it amounts to ouster. Plaintiff counters that, because defendant Ross did not acquire any ownership interest in Bynum Lane until 2003, Ross had only a revocable license granted by plaintiff, and that revocable license extends only to planting shrubbery.
Defendants cite McCann v. Travis, 63 N.C. App. 447, 305 S.E.2d 197 (1983), in support of their contention that they are free to occupy the Bynum Lane easement so long as they do not inhibit plaintiff's ingress and egress. McCann is an adverse possession case and states that ouster is required to prove adverse possession by one co-tenant against another. Id. at 451, 305 S.E.2d at 200.
Although defendant Ross and plaintiff are tenants in common with regard to Bynum Lane, plaintiff does not allege that Ross ousted him, only that Ross is interfering with plaintiff's use and enjoyment of the Bynum Lane easement. Plaintiff's right to occupy and utilize Bynum Lane arises not only from his co-ownership, but also from the easement. The trial court granted summary judgment to plaintiff on this basis, stating that defendants were "permanently enjoined from interfering with plaintiff's use and enjoyment of the 30 foot right-of-way over Bynum Lane." Because the easement affords plaintiff the right to utilize the entire right of way, we hold that the trial court did not err in its grant of summary judgment.
Affirmed.
Judges McGEE and TYSON concur.
Report per Rule 30(e).