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Lowe v. Bradford

Filed: October 20, 1981.

HAROLD E. LOWE
v.
JAMES L. BRADFORD AND WIFE, JOY S. BRADFORD



Appeal by plaintiff from Davis, Judge. Order granting defendants' motion for summary judgment entered 15 October 1980 in Superior Court, Davidson County. Heard in the Court of Appeals 1 September 1981.

Hill, Judge. Judge Whichard concurs. Judge Hedrick dissents.

Hill

Summary judgment is proper where "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." G.S. 1A-1, Rule 56(c). In ruling on a motion for summary judgment, the trial judge does not decide issues of fact but merely determines whether a genuine issue of fact exists. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). The affidavits filed in support of the parties' motions for summary judgment provide

forecasts of evidence upon which we base our review of the trial judge's decision that no genuine issue of material fact exists in this case.

Defendants' affidavits forecast evidence by local realtors which tends to show that the market value of plaintiff's lot was not damaged by the construction of defendants' driveway across the cul-de-sac. Plaintiff's affidavits forecast evidence which tends to show that the construction of defendants' driveway in front of plaintiff's lot "blocked reasonable and necessary access to the plaintiff's lot," and that the alleged change in plaintiff's access "greatly impaired the fair market value of the plaintiff's lot." We must examine these affidavits in light of Rule 56(e) of the North Carolina Rules of Civil Procedure which requires allegations of "specific facts showing that there is a genuine issue for trial." Thus, the question for our decision is whether the above-quoted forecasts of evidence are sufficient under Rule 56(e) to show a genuine issue of material fact. We hold that the forecasts are sufficient to withstand summary judgment.

"Generally, an owner in common in an easement cannot make alterations which will render the easement appreciably less convenient and useful to any one of the co-tenants." 25 Am. Jur. 2d Easements and Licenses ยง 88, p. 494. Although plaintiff has not spelled out in minute detail the changes in access to his lot made by the construction of the driveway, we find he has alleged facts to show that such construction in front of his lot has created a change in plaintiff's access thereto. Since the facts alleged in plaintiff's affidavit are within his personal knowledge and are admissible at trial, he has forecast evidence from which a jury may find that his use of the easement is "appreciably less convenient and useful."

We believe plaintiff has forecast a genuine issue of material fact as to the change in access and its attendant effect upon the value of plaintiff's lot. We therefore reverse the order of the trial judge granting defendants' motion for summary judgment and remand the case for trial.

Reversed and remanded.

Disposition

Reversed and remanded.


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