originally in the Court of Appeals 26 September 2017
by plaintiff from judgment entered 22 September 2016 and from
order entered 1 December 2016 by Judge Mary Ann Tally in New
Hanover County Superior Court, No. 15 CVS 2255 Heard
originally in the Court of Appeals 26 September 2017, and
published opinion filed 17 October 2017. A petition for
rehearing was filed 20 November 2017 and allowed on 6
December 2017. Pursuant to the petition for rehearing, the
matter was reheard in the Court of Appeals. This opinion
supersedes the 17 October 2017 opinion previously filed in
Hodges, Coxe, Potter, & Phillips, LLP, by Bradley A.
Coxe, for Plaintiff-Appellant.
Kenneth Stephens, II for Defendant-Appellees.
Clifton Parker ("Appellant") appeals from denial of
a directed verdict made at the close of Appellant's
evidence and renewed at the close of all evidence dated 29
August 2016, from a judgment entered on 22 September 2016 in
favor of Michael and Elizabeth DeSherbinin (collectively
"Appellees"), and from an order dated 1 December
2016, denying Appellant's motion for judgment
notwithstanding the verdict, to amend the judgment and for a
new trial. For the following reasons, we affirm in part,
reverse in part the trial court's judgment, vacate in
part, and remand for further findings of fact.
and Appellees own adjoining tracts of real property located
in New Hanover County, adjacent to the Intracoastal Waterway.
Appellant acquired his property, located at 19 Bridge Rd.,
from himself as trustee of the Grace Pittman Trust by a
general warranty deed dated 21 December 1983. The deed was
recorded on 16 January 1984 in Book 1243, at Page 769, in the
New Hanover County Registry.
Appellees acquired their property, a vacant lot, located at
1450 Edgewater Club Rd., by a warranty deed from John
Anderson Overton and Holland Ann Overton, dated 16 December
2013 and recorded 17 December 2013 at Book 5788, at Page
1866, in the New Hanover County Registry. Appellees purchased
their property with the intent to build a residence. The
Appellees hired a surveyor, Marc Glenn, to survey the
property and prepare a plat.
survey (the "Glenn survey") fixed the boundary
between Appellant's and Appellees' properties to be
approximately 5 feet south of the line established in a
survey completed in 1982 by surveyor George Losak (the
"Losak survey") and recorded at Map Book 21, at
Page 63, in the New Hanover County Registry. The Glenn survey
shows a chain link fence installed by Appellant to the north
of the boundary line between the parties' properties. The
Glenn survey failed to reference the prior recorded Losak
surveys or show any overlaps in the surveyed boundary lines.
Spring of 2014, Appellant and Appellees met regarding the
boundary line between their properties. Appellant informed
Appellees of an existing issue regarding the location of the
boundary line. Appellees were also made aware, by their
seller, prior to their purchase, that a dispute existed over
the boundary line of the two properties. Appellees'
attorney closed on the property as shown in the Glenn survey,
certified title thereto and obtained title insurance thereon.
filed for a building permit for the residence they intended
to construct at 1450 Edgewater Club Rd. Appellees attached a
copy of the Glenn survey to their building permit
application. Appellant complained and shared the recorded
Losak survey with the New Hanover County planning and zoning
office, prior to the issuance of the Appellees' building
permit being issued, but to no avail.
continued to build their residence based on their belief the
Glenn survey correctly showed the boundary. Appellant
commissioned yet another survey from Charles Riggs, a
registered licensed surveyor (the "Riggs survey"),
while Appellees' house was under construction.
filed an initial complaint on 23 June 2015 and an amended
complaint on 7 January 2016. Appellant asserted claims for
negligence, nuisance, declaratory judgment to identify the
boundary line, adverse possession under color of title, and
adverse possession under twenty years of continuous
possession. On 4 March 2016, Appellees filed an answer
denying Appellant's claims and a counterclaim seeking a
declaratory judgment to identify and establish the boundary
line based upon their Glenn survey.
August 2016, the case came to trial. The parties agreed to
waive trial by jury. Appellant moved for a directed verdict
at the close of his evidence and renewed again at the close
of all evidence. These motions were denied.
the findings of fact made by the trial court are the
7. The Plaintiff's and Defendants' properties adjoin
each other with the Defendants' property lying adjacent
to and to the north of Plaintiff's property.
8. A map of Edgewater Subdivision recorded in Map Book 2, at
Page 113, is the original map of Edgewater Subdivision
(herein "Edgewater Map") and created said
9. Plaintiff's and Defendants' properties are
portions of Lots 4 and Lot 5 as shown on the map of Edgewater
Subdivision, as recorded in Map Book 2, at Page 113, of the
New Hanover County Registry.
10. The Defendants engaged James B. Blanchard, PLS, a
licensed registered land surveyor to perform a survey of the
parties properties in February, 2016 to establish the
dividing line between Lots 4 and 5 of Edgewater Subdivision
as shown on Map Book 2, at Page 113, of the New Hanover
County Registry and then to establish the boundary-line
between the property of the parties.
11. At the trial of this matter, Defendants presented the
testimony of Mr. Blanchard who was tendered to and accepted
by the Court without objection by Plaintiff as an expert
witness in land surveying.
12. That none of the original monuments shown on the
Edgewater Map could be located by Mr. Blanchard.
13. Mr. Blanchard established the dividing line between Lots
4 and 5 of Edgewater Subdivision as follows:
a. By determining the northern line of Edgewater Subdivision
by determining the southern line of Avenel Subdivision, the
adjoining property to the north of Edgewater, as shown on a
map recorded in Map Book 31, at Page 36 (herein "Avenel
Map") and a map recorded in Map Book 7, at Page 14, both
in the New Hanover County Registry.
b. That concrete monuments evidencing the southern line of
Avenel and the northern line of Edgewater are shown on the
Avenel Map and were located by Mr. Blanchard.
c. Mr. Blanchard established a line southwardly and
perpendicular to the northern line of Edgewater Subdivision
and along the eastern right of way of Final Landing Lane, as
shown on the Edgewater Map, for the distance shown on the
Edgewater Subdivision Map required to reach the dividing line
between Lots 4 and 5 all as shown on the Edgewater Map.
d. Mr. Blanchard located the northern line of the tract
adjoining Edgewater Subdivision on the south, i.e. the
southern line of Edgewater Subdivision, as shown on a map
recorded in Map Book 11, at Page 17, of the New Hanover
e. Mr. Blanchard found monuments confirming his determination
of the southern line of Edgewater Subdivision as shown on the
original Edgewater Map.
f. That the Edgewater Map showed a fence running along the
northern line of Edgewater Subdivision and that Mr.
Blanchard, during the performance of his field work, located
remnants of a wire fence running along the line which he
determined to be the northern line of Edgewater.
14. The Defendants introduced a map by Mr. Blanchard dated
July 9, 2016 (Defendants' Exhibit 21, herein the
"Blanchard Map"), showing the findings of his
survey and illustrating his testimony and opinions as to the
location of the boundary-line between Lots 4 and 5 of
Edgewater Subdivision, as well as the boundary-line between
the Defendants' tract to the north described in Deed Book
5788, at Page 1866, of the New Hanover County Registry, and
Plaintiff's tract to the south described in Deed Book
1243, at Page 769, of the New Hanover County Registry.
15. George Losak, registered land surveyor, prepared a map
for "The William Lyon Company" dated December 30,
1982, recorded in February 10, 1983 and in Map Book 21, at
Page 63, of the New Hanover County Registry (the "Losak
Survey") showing or purporting to show the property
later purchased by Plaintiff.
16. In August 1983, Mr. Losak prepared a second map of the
property for "The Grace Pittman Trust" which was
recorded on September 7, 1983 in Map Book 22, at Page 20, of
the New Hanover County Registry. The purpose of this map was
to correct errors contained in the Losak Survey.
17. Plaintiff's deed dated December 21, 1983 and recorded
on January 16, 1984 referred to the Losak Survey, recorded in
Map Book 21, at Page 63, of the New Hanover County Registry.
18. The Losak Survey referred to hereinabove depicts pipes
and monuments which Mr. Losak ignored in determining the
boundary-line between the subject properties.
19. The Court finds Mr. Blanchard's testimony to be
credible and correct as to the location of the boundary-line
between the Plaintiff's and Defendants' properties.
20. The true location of the boundary-line between
Plaintiff's property and Defendants' property is
shown on the Blanchard Map dated July 9, 2016 which describes
the dividing line ...