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Rathburn v. Denver C. Hawkins

Filed: February 16, 1982.

RAYMOND GERALD RATHBURN AND WIFE, MARY FRANCES RATHBURN
v.
DENVER C. HAWKINS AND WIFE, ZOLA MAE HAWKINS



Appeal by plaintiffs from Roda, Judge. Judgment entered 30 January 1981 in District Court, Buncombe County. Heard in the Court of Appeals 5 January 1982.

Clark, Judge. Judges Whichard and Becton concur.

Clark

The sole issue before this Court is whether the trial court erred in granting summary judgment for defendants. G.S. 1A-1, Rule 56, provides that a motion for summary judgment is properly granted if the pleadings and other documents filed show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

An issue is material if the facts alleged "would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action." Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972).

In Dickinson v. Pake, 284 N.C. 576, 580-81, 201 S.E.2d 897, 900-01 (1973), the Supreme Court in a decision written by Huskins, J., traced the development in this State of the law concerning prescriptive easements. The decision enumerated the following legal principles applicable to prescriptive easements:

"1. The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement. . . .

2. The law presumes that the use of a way over another's land is permissive or with the owner's consent unless the contrary appears. . . .

3. The use must be adverse, hostile, or under a claim of right. . . .

4. The use must be open and notorious. . . .

5. The adverse use must be continuous and uninterrupted for a period of twenty years. . . .

6. There must be substantial identity of the easement claimed. . . ." (all citations omitted)

The facts in Dickinson are very similar to those of the case sub judice. In each case, the roadway was used continuously by the plaintiffs under such circumstances as to give defendants notice that the use was adverse, hostile or under claim of right; the roadway was the only means of access to the house on the property; the defendants had placed a fence (this case) and shrubbery and old tires (Dickinson) along the edge of the driveway; and plaintiffs had performed some maintenance on the roadway. Our Supreme Court held in Dickinson that the evidence was sufficient to ...


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