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Potts v. Burnette

Filed: May 6, 1980.

WADE H. POTTS; DON WAYNE POTTS, ARTHUR B. POTTS AND MAVIS L. POTTS, TRUSTEES OF JOHN H. POTTS MEMORIAL CEMETERY; BOBBY E. MCDANIEL AND WIFE, BARBARA R. MCDANIEL; DONALD R. MCDANIEL AND WIFE, NANCY M. MCDANIEL; AND FRED B. MCDANIEL AND WIFE, JOANN S. MCDANIEL
v.
J. W. BURNETTE AND WIFE, ESTELLE BURNETTE; JUDY LEE BURNETTE ROGERS AND HUSBAND, ALEXANDER ROGERS; JAMES HENRY BURNETTE AND WIFE, LORETTA BURNETTE; C. T. BURNETTE AND WIFE, JUANITA BURNETTE; AND DENNIS HALL BURNETTE



Appeal by defendants from Leatherwood, Judge. Judgment entered 16 April 1979 in District Court, Jackson County. Heard in the Court of Appeals 27 February 1980.

Arnold, Judge. Chief Judge Morris and Judge Vaughn concur.

Arnold

The development of the law of prescriptive easements in North Carolina is set out in Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). In North Carolina, unlike the majority of other jurisdictions, we presume that the use of a way over another's land is permissive unless evidence appears to the contrary. Id. In the present controversy the sole issue is whether plaintiffs presented evidence sufficient to go to the jury that their use of the road over defendants' land was "adverse, hostile, or under a claim of right." See id. at 580, 201 S.E.2d 900.

Plaintiffs presented substantial evidence that they have used the road in question for many years. However, "[t]he mere use of a way over another's land cannot ripen into an easement by prescription, no matter how long it may be continued." Henry v. Farlow, 238 N.C. 542, 543, 78 S.E.2d 244, 245 (1953), citing numerous cases. Plaintiffs presented much evidence that they have never asked permission to use the road, but neither in their brief nor on oral argument were plaintiffs able to point to any evidence that their use of the road has been other than with defendants' permission. When plaintiffs were widening the portion of the road that lies on their property, they asked defendants for permission to come onto defendants' land and widen the road. "Mr. Leonard Potts spoke to Mr. Wade Burnette and cleared it with him to bring the bulldozer in and widen the road. . . ." Earlier, when the road was scraped, "they had to skip a certain space . . . because the Burnettes would not let them scrape that portion of the land." As for asking permission simply to travel the road, William Potts testified, "The reason I did not ask permission was that we thought it was a free country, not a bunch of hogs in there, and everybody was welcome to go where they wanted to." Leonard Potts testified, "As far back as I can remember . . . I never asked him for permission to use the road. It's a free country up there. We don't ask people. We just, they come over me and I go over them. . . . [W]e all go over one ...


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