Hinman v. Cornett

• Court: Supreme Court of North Carolina
• Decided: May 23, 2024
• Docket: 219A23
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 219A23

Filed 23 May 2024

WILLIAM HINMAN and JOANNE W. HINMAN

v. WADE R. CORNETT and TERESA B. CORNETT

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 290 N.C. App. 30 (2023), reversing in part and remanding a

summary judgment order entered on 22 November 2021 by Judge Susan E. Bray in

Superior Court, Forsyth County. Heard in the Supreme Court on 16 April 2024.

Craige Jenkins Liipfert & Walker LLP, by Thomas J. Doughton, for plaintiff- appellants.

Law Office of Richard Munday, by Richard Munday, for defendant-appellees.

RIGGS, Justice.

This appeal tasks us with resolving whether defendants Wade R. Cornett and

Teresa B. Cornett supported their claim for adverse possession at summary judgment

sufficiently to send the claim to the jury. Specifically, we resolve whether their

forecast of evidence, considered in the light most favorable to the Cornetts, created a

genuine issue of material fact as to the hostility of their use of the disputed tract.

After careful review, we agree with the Court of Appeals that the Cornetts’ evidence,

if credited, adequately established hostility—as well as all other elements of adverse

possession—sufficient to survive summary judgment and submit the claim to the HINMAN V. CORNETT

Opinion of the Court

jury. We therefore affirm the opinion of the Court of Appeals and remand this matter

for further proceedings in the trial court.

I. Factual and Procedural History

The Cornetts have lived on Griffin Road in Rural Hall, North Carolina, since

1983. After renting the property—identified in the record as Tract 1—for twelve

years, the Cornetts purchased it and an adjoining tract to the south—Tract 2—from

their lessor in 1995. The 1995 deed to the Cornetts showed a thirty-foot access

easement along the western edges of both tracts, as Tract 2 did not abut or have

access to Griffin Road. The Cornetts’ neighbor owned the servient tract on which the

easement ran.

According to the Cornetts, the easement area along the western boundary of

both tracts had always been used for access to Griffin Road. The Cornetts had used

a gravel driveway in the easement to reach the street upon moving into the home on

Tract 1 in 1983. An existing carport utilized by the Cornetts straddled Tract 1 and

the easement. A chain link fence surrounding the Cornetts’ carport and a brick

driveway column also sat in the easement. The Cornetts made other improvements

in the easement over the ensuing decades. A shelter and additional carport were

built partially in the easement in 1991 and 1996, respectively. They also installed a

split rail fence, drainage piping, a garden, and crepe myrtle trees inside the easement,

all under the apparent belief that they owned the property in the easement. The

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Cornetts and their neighbor on the servient tract, Bennie Church,1 jointly agreed to

pave the gravel access road; however, the road as paved did not follow the easement

as recorded on the Cornetts’ deed, and instead fell roughly halfway inside the

easement’s western border.

Bennie Church died in 2009, and the servient tract eventually came into

possession of Alison and Mitchell Church. The Churches sold the land to plaintiffs

Joanne and William Hinman in 2019. After closing on the property, the Hinmans

commissioned a survey, which confirmed the existence of the easement on their land.

They thereafter demanded the Cornetts remove the various improvements built

inside the easement and asserted that the Cornetts could not use the portion of the

paved driveway falling outside the easement boundary. The Cornetts refused both

demands, and the Hinmans brought suit for trespass and to quiet title on 23 March

2021. The Cornetts filed a combined answer, motion to dismiss, and counterclaims

on 26 May 2021, alleging adverse possession of the disputed area and nuisance in

connection with an alleged spite fence constructed by the Hinmans.

Following discovery—which included the depositions of the Cornetts—the

parties lodged competing motions for summary judgment. The trial court granted

summary judgment for the Hinmans on all claims. The Cornetts appealed the trial

court’s judgment to the Court of Appeals.

1 The recorded deeds in the record do not demonstrate ownership of the servient tract

by Mr. Church, but both parties agree that he at least resided there during the time frames discussed.

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On 1 August 2023, that court issued a divided opinion reversing the trial court

and remanding for further proceedings. Hinman v. Cornett, 290 N.C. App. 30 (2023)

(plurality opinion). Writing for the court, the authoring judge opined that the

Cornetts’ evidence showed open, continuous, exclusive, actual, and notorious use of

the disputed land falling between the eastern edge of the paved driveway and the

Cornetts’ property line for over twenty years. Id. at 42. Because summary judgment

on this issue was improper, and because the unresolved issue of ownership

necessarily bore on the Hinmans’ trespass claim and the Cornetts’ nuisance

counterclaim, the authoring judge further concluded that summary judgment for the

Hinmans on those claims was likewise in error. Id. at 44-45. As for the right of access

conferred by the easement, the plurality and the dissenting judge held that the

easement granted access to Tract 2 only. Id.

The dissenting judge disagreed with the plurality’s holding that the forecasted

evidence showed hostile possession by the Cornetts. Id. at 47-50 (Tyson, J.,

concurring in the result in part and dissenting in part). Relying on Mr. Cornett’s

deposition testimony that Bennie Church “ ‘was fine with [the Cornetts] using the

driveway[’] . . . [and that] there was no problem with the placement of drainage pipes

in the easement from the Churches nor when they planted the crepe myrtles in the

easement,” the dissenting judge would have held that the Cornetts’ use was

“permissive . . . [and] tolled the running of the twenty-year statute of limitations

pursuant to N.C. Gen. Stat. § 1-40.” Id. at 49. He otherwise agreed with the

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plurality’s holding confining the easement’s access rights only to Tract 2. Id. at 50.

The Hinmans now appeal on the basis of the dissent.

II. Analysis

The principal issue raised by the dissent—and thus the issue properly before

us under the grant of jurisdiction found in N.C.G.S. § 7A-30(2) and N.C. R. App. P.

14—is whether the Cornetts’ evidence raised a genuine issue of material fact

concerning the hostility element of adverse possession sufficient to survive summary

judgment. Applying the appropriate standard of review to this issue, we affirm the

plurality opinion of the Court of Appeals.

A. Standard of Review

We review a trial court’s summary judgment order de novo. E.g., Forbis v.

Neal, 361 N.C. 519, 524 (2007). A movant is entitled to summary judgment when

“the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits” show that the movant is “entitled to a judgment as a

matter of law” and “that there is no genuine issue as to any material fact.” N.C. R.

Civ. P. 56(c). The evidence proffered at summary judgment must be taken in the light

most favorable to the nonmovant. E.g., Caldwell v. Deese, 288 N.C. 375, 378 (1975).

B. Hostile Possession

Adverse possession under claim of right without color of title requires actual,

open, notorious, continuous, and hostile possession for a period of at least twenty

years. N.C.G.S. § 1-40 (2023); see also Newkirk v. Porter, 237 N.C. 115, 119 (1953).

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The latter element—hostility—does not require a rancorous row between claimants

or that the adverse possessor to act with the mind of a thief; instead, “when a

landowner, acting under a mistake as to the true boundary between his property and

that of another, takes possession of the land believing it to be his own and claims title

thereto, his possession and claim of title is adverse.” Walls v. Grohman, 315 N.C.

239, 249 (1985).

Permissive use may defeat an assertion of hostility. Potts v. Burnette, 301 N.C.

663, 666 (1981). Indeed, the law presumes that use by a person other than the

landowner is permissive. Id. at 666-67. That presumption is rebutted where there is

“some evidence accompanying the user which tends to . . . repel the inference that it

is permissive and with the owner’s consent.” Dickinson v. Pake, 284 N.C. 576, 581

(1974). Use and improvement of property under a mistake of right and without

permission has long constituted evidence sufficient to rebut this presumption in the

context of prescriptive easements. See Potts, 301 N.C. at 668 (holding that evidence

taken in the light most favorable to the nonmovant on directed verdict rebutted the

presumption of permissive use where “[n]o permission has ever been asked or given[,]

[p]laintiffs . . . smoothed, graded and gravelled the road . . . , [and] there was abundant

evidence that plaintiffs considered their use of the road to be a right and not a

privilege”). And, because the mind of a thief is no longer required to establish a claim

of adverse possession, so, too, does use and improvement under a mistake of

ownership without the true owner’s permission. Cf. Walls, 315 N.C. at 249 (“[W]hen

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a landowner, acting under a mistake as to the true boundary between his property

and that of another, takes possession of the land believing it to be his own and claims

title thereto, his possession and claim of title is adverse.”).

The Cornetts’ evidence in this case sufficed to raise a genuine issue of material

fact concerning the hostility of their possession of the land between the eastern edge

of the paved driveway and the property lines of Tracts 1 and 2. Mr. Cornett testified

that he always believed he owned the entirety of the property within the easement, a

mistake that does not serve to defeat any assertion of hostility. Id. Ms. Cornett

testified that no one ever asked them or complained about their use of the disputed

land and driveway, and “[n]o one ever told us that that part was not—not ours.” The

Cornetts also built permanent fixtures between the edge of the paved driveway and

their property line; this permanent use and improvement of the land beyond that

granted by the easement—together with the Cornetts’ mistaken belief of ownership

and their testimony that no one demanded permission or complained about their use

of the land—are sufficient to rebut any presumption of permissive use. Potts, 301

N.C. at 666; Dickinson, 284 N.C. at 581.

The Hinmans and the dissent below urge the opposite conclusion based on an

overreading of the evidence and caselaw. While it is true that Mr. Cornett testified

that Mr. Church did not object to the Cornetts’ use of the driveway and that no one

complained about the improvements and use of the land east of the pavement, this

evidence, considered in the light most favorable to the Cornetts, does not amount to

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an express or admitted grant of permission as concluded by the dissenting judge. This

testimony does not foreclose, for example, the possibility that the Hinmans’

predecessors in interest did not object to the Cornetts’ use of the disputed land

because they, too, believed it to be the Cornetts’ property. Because this evidence is

reconcilable with a finding that the Hinmans’ predecessors in interest never gave the

Cornetts permission or consent to use and treat the disputed land as their own—and

because the Cornetts’ mistaken belief of ownership and their permanent

improvements on the property constitute evidence rebutting the presumption of

permissive use—the Court of Appeals properly held that a genuine issue of material

fact existed as to the Cornetts’ hostile possession of the property by mistake.

The cases relied upon by the Hinmans and the dissent, Eason v. Spence, 232

N.C. 579 (1950), and Jones v. Miles, 189 N.C. App. 289 (2008), neither compel nor

caution a different outcome. In Eason, we held that a landowner may lose title to an

adverse possessor only when “he has legal power to stop it,” 232 N.C. at 587, and

persons validly occupying land under a life estate do not begin adversely possessing

property against remaindermen or reversioners until the life tenant dies and the life

estate is extinguished, id. Those circumstances—an attempt to count the length of a

lawful life tenancy towards the statutorily prescribed time for adverse possession—

are not present under the facts here. Nor does the plurality decision of the Court of

Appeals in this case conflict with that court’s prior decision in Jones; that case merely

recognizes that permissive use defeats hostility when the adverse possessor

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encroaches on the landowner’s property, the landowner gives permission for the

encroachment, and the adverse possessor fails to reassert any claim of exclusive right

and ownership to the subject land. 189 N.C. App. at 294. As explained above, the

evidence taken in the light most favorable to the Cornetts does not disclose a grant of

permission by the Hinmans’ predecessors in interest for the Cornetts’ permanent

improvements and continued exclusive use of the land between their property line

and the eastern edge of the paved driveway.

III. Conclusion

For the foregoing reasons, we affirm the decision of the Court of Appeals

reversing summary judgment in favor of the Hinmans and remand this case to that

court for further remand to the trial court for further proceedings not inconsistent

with this opinion.

AFFIRMED AND REMANDED.

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