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Lowe v. Bradford

Filed: March 30, 1982.

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



On appeal as a matter of right pursuant to G.S. 7A-30(2) from the decision of the Court of Appeals, Carlton, Justice.

Carlton

The sole question presented by this appeal is whether the trial court properly allowed defendants' motion for summary judgment.

I.

Plaintiff filed suit on 17 June 1980 to recover damages for the decline in market value of his property allegedly caused by defendants' interference with plaintiff's use, benefit and enjoyment of an easement appurtenant to his land. Plaintiff and defendants own adjoining lots in the Sapona Subdivision in Davidson County. Their lots are located on Indian Wells Circle. Although defendants' lot fronts on Indian Wells Circle, access is provided to that street across an unpaved cul-de-sac, which is the sole means of access to plaintiff's lot. The cul-de-sac also provides access to another lot which is not involved in this suit. Plaintiff's lot lies between the others, and it has no direct frontage on Indian Wells Circle. Each of these lots was sold with an easement appurtenant in the cul-de-sac. This unpaved semi-circular area is not a cul-de-sac in the normal usage of that term because it is not located at the end of a street. Instead, it is located on the side of a paved street and was obviously designed, due to the peculiar triangular shape of the lots, to provide better access for all three lot owners to the paved street.

Sometime during the summer of 1979 defendants had constructed across the cul-de-sac a sixteen-foot wide concrete driveway which connected their lot with Indian Wells Circle. Defendants did not obtain plaintiff's consent before constructing the driveway, and plaintiff alleged that the concrete driveway deprived him of his use of the easement and, therefore, his access to his lot and rendered his lot worthless. He prayed for damages in the amount of the fair market value of the lot before the driveway was constructed and asked that defendants be enjoined from obstructing the easement.

Defendants' answer admitted construction of the driveway across the cul-de-sac but alleged that the cul-de-sac had been dedicated to public use. Defendants denied that their driveway restricted plaintiff's access to his lot or caused a diminution in the value of plaintiff's lot. Defendants also claimed that plaintiff's suit was a "spite action" filed against them to retaliate for their refusal to buy plaintiff's lot.

Defendants filed a motion for summary judgment and averred in a supporting affidavit that no obstruction to plaintiff's access to his lot resulted from paving of the driveway because any

portion of the driveway located in the cul-de-sac was dedicated to public use and plaintiff had the same use of the cul-de-sac and that portion of the driveway in the cul-de-sac as defendants, and that plaintiff had suffered no damages. Defendants also submitted the affidavits of two experienced realtors who averred that no damage to plaintiff's lot resulted from the construction of the driveway.

Plaintiff also moved for summary judgment. Plaintiff filed an affidavit which repeated in substance the allegations of his complaint: (1) that the driveway is constructed across the cul-de-sac and has decreased and restricted his access from the street to the extent that he does not have reasonable and adequate access to his property and (2) that due to the lack of access his lot is practically worthless. Other affidavits submitted by plaintiff concerned the location of the driveway and whether the cul-de-sac had been dedicated to public use.

On the basis of the pleadings and affidavits submitted in support of the summary judgment motions, the trial court found that no genuine issue of material fact existed and that defendants were entitled to judgment as a matter of law and allowed defendants' motion for summary judgment. Plaintiff appealed to the Court of Appeals. That court, in an opinion by Judge Hill in which Judge Whichard concurred, reversed the entry of summary judgment and remanded for trial. The majority believed that plaintiff had "forecast a genuine issue of material fact as to the change in access and its attendant effect upon the value of plaintiff's lot." Judge Hedrick dissented. He noted that plaintiff's forecast of evidence contained no allegations or evidence of specific facts "as to how the concrete driveway . . . interferes with plaintiff's use of the easement." Judge Hedrick ...


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