Hilliard v. Hilliard

554 S.E.2d 374, 146 N.C. App. 709, 2001 N.C. App. LEXIS 1079
CourtCourt of Appeals of North Carolina
DecidedNovember 6, 2001
DocketNo. COA00-1225
StatusPublished
Cited by6 cases

This text of 554 S.E.2d 374 (Hilliard v. Hilliard) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hilliard v. Hilliard, 554 S.E.2d 374, 146 N.C. App. 709, 2001 N.C. App. LEXIS 1079 (N.C. Ct. App. 2001).

Opinion

WYNN, Judge.

This appeal arises from a land dispute between brothers, Perry H. Hilliard and Warren Peete Hilliard. Defendant Philip Wayne Kesler has made no appearance in this action and is not involved in this appeal.

The Hilliard brothers along with their other brothers and sisters were co-tenants of certain real property located in Warren County In 1988, that property was partitioned under a special proceeding which, [710]*710pertinent to this appeal, resulted in the allocation of (1) a lot designated as Tract A-13 containing 2.261 acres to Ralph F. Hilliard who subsequently conveyed that lot to Warren Hilliard and his wife, Anne; and, (2) an adjacent lot designated as Tract A-12 containing 2.261 acres to Albert Hilliard who subsequently conveyed that lot to Perry Hilliard and his wife, Mildred. The conveyance of those two lots to the Hilliard brothers and their wives resulted in a dispute in which Perry and Mildred Hilliard brought this action for the establishment and declaration of an easement over the lot owned by his brother Warren and his wife, Anne.

After hearing the evidence without a jury, the trial court entered judgment finding that Perry and Mildred Hilliard were not entitled to an easement over the lot owned by Warren and Anne Hilliard. Perry and Mildred Hilliard appealed to this Court.

The sole issue on appeal is whether the trial court erred in concluding as a matter of law that Perry and Mildred Hilliard do not have a thirty-foot easement that in part crosses over the lot owned by Warren and Anne Hilliard. We uphold the trial court’s judgment.

N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) of the Rules of Civil Procedure requires a trial judge hearing a case without a jury to make findings of fact and conclusions of law. See Gilbert Eng’g Co. v. City of Asheville, 74 N.C. App. 350, 328 S.E.2d 849, cert. denied, 314 N.C. 329, 333 S.E.2d 485 (1985). See also N.C. Gen. Stat. § 1A-1, Rule 52 (a)(1) (1999).

To comport with Rule 52(a)(1), the trial court must make a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment. Rule 52(a)(1) does not require recitation of evidentiary facts, but it does require specific findings on the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.

Curd v. Winecoff, 88 N.C. App. 720, 722, 364 S.E.2d 730, (1988) (citation omitted). “Where the trial court sits as trier of facts, the trial court must (1) find the facts on all issues joined in the pleadings, (2) declare the conclusions of law arising on the facts found, and (3) enter judgment accordingly.” Whitfield v. Todd, 116 N.C. App. 335, [711]*711338, 447 S.E.2d 796, 798, cert. denied, 338 N.C. 529, 453 S.E.2d 170 (1994). “It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts.” Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992).

In the present case, the trial court made the following findings of fact:

1. That the Plaintiff, Perry H. Hilliard, and the Defendant, Warren Peete Hilliard, were parties to a partition proceeding in Warren County under file number 88 SP3 and that each party received a share of real estate in special proceedings; that the Report of Commissioners was filed on October 21, 1988, and the Amended Report of Commissioners was filed on January 23, 1989; that Ralph Hilliard, brother of Perry and Warren Hilliard, was apportioned tract A-13 in said proceedings and C. Albert Hilliard, brother of Perry and Warren Hilliard, was apportioned tract A-12 in said special proceeding.
2. Elmer W. Harris, James G. Elam, and Wilson Fleming, Commissioners, partitioned the real estate of Charlie White Hilliard into twelve equal shares, with provision under Item III of the Will of Charlie White Hilliard that McElree Hilliard, Warren P. Hilliard and Gilbert Lee Hilliard have their shares adjoin the lands which the testator had previously given them for home sites.
3. The Commissioners engaged Harry M. Williams, III, Registered Land Surveyor, to survey the land and to make division maps.
4. Tract A-13, containing 2.261 acres, more or less, was given a private easement of ingress, egress, and regress appurtenant, and running with the land, by whomsoever owned, measuring 30 feet in width, said width extending 15 feet on each side of the dividing line between Tract A-l and Tract A-2 running from a point in the center of the right of way of State Road 1500, which beginning point is South 44 deg. 07 min. 24 sec. East 114.94 feet from the southernmost corner of Tract A-5, thence various metes and bounds to a point, the westernmost corner of Tract A-12 and the northernmost corner of Tract A-13.
5. Tract A-12, containing 2.261 acres, more or less, was given an identical private easement of ingress, egress and regress appur[712]*712tenant, and running with the land, by whomsoever owned, measuring 30 feet in width, said width extending 15 feet on each side of the dividing line between Tract A-l and Tract A-2 from the identical beginning point to the identical ending point as described in paragraph 4 above.
6. That on or about February 17, 1989, C. Albert Hilliard and wife, Dorothy S. Hilliard, conveyed Tract A-12 to Ralph Hilliard and wife, Mildred L. Hilliard, bought Tract A-12 from Ralph F. Hilliard and wife Elsie B. Hilliard, together with the same above-described easement as shown in Tract 2 of the warranty deed dated March 20, 1995, Plaintiffs’ Exhibit 2.
7. The Defendants, Warren Peete Hilliard and wife, Anne B. Hilliard, bought Tract A-13 from Charles A. Hilliard and wife, Dorothy S. Hilliard, together with the same above described easement as shown in Tract 2 of the warranty deed dated March 8. 1989, Defendants’ Exhibit 1.
8. Perry Hilliard presented a preliminary plat to subdivide his land (Tract A-12) into a trailer park to the Warren County Planning Board on October 3, 1995. Perry Hilliard asked for a 15 foot variance and depth requirement variance for his property so that he could put a trailer park on his property. The Warren County Planning Board disapproved the plat because it did not meet mobile home regulations (Defendants’ Exhibit 5). That on or about January 15, 1996, the Plaintiffs conveyed a portion of Tract A-12 to the Defendant, Philip Wayne Kesler, by deed recorded at Book 615, Page 157 Warren County Registry, (Plaintiffs’ Exhibit 3), without obtaining the approval of the Warren County Planning Board.

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Cite This Page — Counsel Stack

Bluebook (online)
554 S.E.2d 374, 146 N.C. App. 709, 2001 N.C. App. LEXIS 1079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilliard-v-hilliard-ncctapp-2001.