Jones v. Miles

658 S.E.2d 23, 189 N.C. App. 289, 2008 N.C. App. LEXIS 545

• Court: Court of Appeals of North Carolina
• Decided: March 18, 2008
• Docket: COA07-109
• Status: Published

Opinions

McGEE, Judge.

Roy Donald Morgan (Mr. Morgan) built a house on a tract of land (the Jones tract) in Henderson County in 1965. When Mr. Morgan built the house, he also installed a driveway and decorative shrubbery near what he believed was the western border of the property. Mr. Morgan believed the driveway and shrubbery were on his property based on a land survey prepared around 1964 or 1965. While living on the Jones tract, Mr. Morgan maintained the shrubbery by mulching and fertilizing the area. Mr. Morgan sold the property in 1973 to his brother, Charlie Morgan, Jr. (Charlie Morgan). Robert H. Jones (Mr. Jones) and Emily J. Jones (Mrs. Jones) (together, Plaintiffs) purchased the Jones tract from Charlie Morgan in 1981 and rented the house to various tenants until 1988. Since 1988, Plaintiffs have resided in the house continuously. Plaintiffs have maintained and used the driveway and have also maintained the shrubbery on a regular basis since purchasing the Jones tract. In addition, Plaintiffs paved the driveway in 1987.

Plaintiffs had the Jones tract surveyed in April 1992. The survey revealed that Plaintiffs’ driveway and shrubbery actually extended outside the Jones tract and encroached onto an adjacent tract of land (the Thomas property) owned by James Thomas (Mr. Thomas) and Bernice Thomas (Mrs. Thomas) (together, the Thomases). After discovering the encroachment, Mr. Jones mistakenly believed that he and Mrs. Jones had acquired title to that portion of the Thomas property through adverse possession.¹ Nonetheless, Plaintiffs decided to “do the right thing” by offering to purchase from the Thomases the one-tenth-of-an-acre portion of the Thomas property containing Plaintiffs’ driveway and shrubbery (the disputed tract).

In April 1992, Plaintiffs approached the Thomases and showed them a copy of the survey. Plaintiffs told the Thomases that even though they believed they owned the disputed tract through adverse possession, they would purchase the disputed tract to resolve the situation. According to Mr. Jones, the Thomases declined Plaintiffs’ offer, stating that their property “had been a gift from God and . . . they had promised that they would never sell any part of it, even the [disputed tract], unless they sold it all.” The Thomases also told Plaintiffs to “just enjoy the land” and “don’t worry about it.” Plaintiffs and the Thomases never had another discussion regarding the encroachment. However, even after their April 1992 conversation with the Thomases, Plaintiffs continued to believe that they owned the disputed tract through adverse possession.

Mr. Thomas died in 1998, and Mrs. Thomas decided to sell the Thomas property in 2003. Mrs. Thomas acknowledged at the time that the encroachment on the Thomas property was an “unsettled” issue. Around July 2004, Mr. Jones erected a fence around the disputed tract in order to demarcate the portion of the Thomas property that Plaintiffs were claiming by adverse possession. Mr. Jones also placed a “No Trespass” sign on the fence. Mrs. Thomas’ attorney sent Plaintiffs a letter in August 2004 requesting that Plaintiffs remove the fence. The letter stated, in part:

Since [April 1992], Mr. and Mrs. Thomas have permitted the encroachment on their property as described in the survey your surveyor prepared. The encroachment of your driveway has been permissive, and to date has not been a basis of dispute between Mr. and Mrs. Thomas and you.

At this time, Mrs. Thomas insists that you immediately remove the fence to the extent it encroaches on her property. Mrs. Thomas reserves all rights with regard to the driveway encroachment. Any attempt by you to claim an interest in Mrs. Thomas’ property is not acceptable. If you disagree that the driveway encroachment is not permissive and believe that the driveway encroachment is an open and hostile use by you adverse to the title of Mrs. Thomas, then you should inform me of that and prepare to remove the driveway encroachment as well.

Plaintiffs refused to remove the fence and told Mrs. Thomas’ attorney that they believed they owned the disputed tract.

Mrs. Thomas sold the Thomas property in August 2004 to two families named Cashman and Dillon. Shortly thereafter, the Cashmans and Dillons put the property back on the market. They eventually sold thirteen acres of the original Thomas property to Suzanne West, and they sold the remaining portion (the Miles tract) containing the disputed tract to Mary Lee Miles (Defendant) in August 2005.

Plaintiffs filed a verified complaint in Henderson County Superior Court on 17 October 2005 alleging that they had acquired ownership of the disputed tract through adverse possession. Defendant filed a motion for summary judgment on 17 July 2006, claiming that Plaintiffs’ use of the disputed tract had been permissive since April 1992, thus interrupting the running of the twenty-year statutory period for adverse possession. See N.C. Gen. Stat. § 1-40 (2007). The trial court issued an order on 16 August 2006 granting Defendant’s motion for summary judgment. Plaintiffs appeal.

A trial court should grant a motion for summary judgment if, when taken in the light most favorable to the non-moving party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). We review a trial court’s grant of a motion for summary judgment de novo. Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007).

In North Carolina, “[t]o acquire title to land by adverse possession, the claimant must show actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period . . . under known and visible lines and boundaries.” Merrick v. Peterson, 143 N.C. App. 656, 663, 548 S.E.2d 171, 176, disc. review denied, 354 N.C. 364, 556 S.E.2d 572 (2001); Plaintiffs argue that the trial court erred by granting Defendant’s motion for summary judgment because genuine issues of material fact existed with respect to all elements of Plaintiffs’ claim for adverse possession.

We first address whether Plaintiffs’ possession of the disputed tract was hostile to the interests of the record owners. The hostility requirement “does not import ill will or animosity but only that the one in possession of the lands claims the exclusive right thereto.” State v. Brooks, 275 N.C. 175, 180, 166 S.E.2d 70, 73 (1969). “ ‘A “hostile” use is simply a use of such nature and exercised under such circumstances as to manifest and give notice that the use is being made under claim of right.’ ” Daniel v. Wray, 158 N.C. App. 161, 172, 580 S.E.2d 711, 719 (2003) (quoting Dulin v. Faires, 266 N.C. 257, 261, 145 S.E.2d 873, 875 (1966)). The hostility element may be satisfied by a showing that “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[.]” Walls v. Grohman, 315 N.C. 239, 249, 337 S.E.2d 556, 562 (1985). However, the hostility requirement is not met if the possessor’s use of the disputed land is permissive. See, e.g., New Covenant Worship Ctr. v. Wright, 166 N.C. App. 96, 104, 601 S.E.2d 245, 251-52 (2004) (finding hostility requirement not satisfied because the possessor’s use of the disputed property was permissive); McManus v. Kluttz, 165 N.C. App. 564, 573-74, 599 S.E.2d 438, 446 (2004) (finding hostility requirement satisfied because the possessor’s use of the disputed property was not permissive).

Plaintiffs contend that their possession of the disputed tract was hostile under Walls because they took possession of the disputed tract under a mistake as to the true boundary of their .property and claimed the disputed tract as their own. Further, Plaintiffs note that when they approached the Thomases in April 1992, Plaintiffs believed they owned the disputed tract by adverse possession, and specifically told the Thomases the same. In addition, even after Plaintiffs spoke with the Thomases in 1992, Plaintiffs continued to believe that they owned the disputed tract by adverse possession. Plaintiffs argue that even if the Thomases granted Plaintiffs permission to continue to use the driveway as of April 1992, such permission was not sufficient to change Plaintiffs’ use of the disputed tract from a hostile use to a permissive use. To support their argument, Plaintiffs cite the following statement from a North Carolina real estate treatise in its discussion of prescriptive easements: “Permission given after the hostile use has begun does not destroy the hostility.”² James A. Webster, Jr. et al, Webster’s Real Estate Law in North Carolina § 15-18(a) (5th ed. 1999). We disagree with Plaintiffs’ contentions.

Plaintiffs correctly note that for possession to be hostile, the possessor must intend to claim title to the property at issue. However, a possessor’s intent to claim title cannot support a claim of adverse possession where the true owner is never put on actual or constructive notice of the possessor’s hostile intent. See, e.g., Bowers v. Mitchell, 258 N.C. 80, 83, 128 S.E.2d 6, 9 (1962) (stating that a claim of adverse possession requires that “possession ... be continuous, open, notorious, as well as adverse. It must be of such character as to put the true owner on notice of the adverse claim.”). This notice concept is manifested in multiple elements of an adverse possession claim. See, e.g., McManus, 165 N.C. App. at 573, 599 S.E.2d at 445 (stating that “[possession is open and notorious if it places the true owner on notice of an adverse claim”); Daniel, 158 N.C. App. at 172, 580 S.E.2d at 719 (stating that to meet the hostility requirement, the possessor’s use of the property must be “ ‘of such nature and exercised under such circumstances as to manifest and give notice that the use is being made under claim of right’ ” (quoting Dulin, 266 N.C. at 261, 145 S.E.2d at 875)). It therefore follows that if the possessor uses the land with the true owner’s permission, yet secretly intends to claim title to the land, such possession is not hostile for purposes of establishing an adverse possession claim. The true owner’s grant of permission negates the hostile nature of the possession, and the possessor has not “manifested] and give[n] notice that the use is being made under claim of right.” Id.

Plaintiffs contend, however, that pursuant to the above-quoted statement in the Webster’s treatise, the Thomases’ grant of permission to Plaintiffs in April 1992 could not destroy the hostile nature of Plaintiff’s possession of the disputed tract. According to Plaintiffs, because their possession had been hostile until April 1992, the subsequent grant of permission from the true owners of the disputed tract could not negate Plaintiffs’ hostile use. We disagree. While the statement in the Webster’s treatise may be accurate in some cases, it is not accurate in all cases. It is true that once possession becomes hostile, a grant of permission from the true owner will not defeat such hostility if the possessor either rejects the grant of permission or otherwise takes some affirmative step to put the true owner on notice that the possessor’s use of the land remains hostile. However, a true owner’s grant of permission will defeat a possessor’s hostile use if the possessor takes no further action to reassert his claim over the land. In such cases, the possessor has not put the true owner on notice that the possessor still intends to claim the disputed land as his own. Accord McKenzie v. Pope, 33 P.3d 1277, 1280 (Colo. Ct. App. 2001) (agreeing that after possession becomes hostile, the true owner’s “grant of permission to the [possessor] to use the disputed property, and subsequent inaction by the [possessor], would be sufficient to interrupt the running of the statutory period of adverse possession”); Zivic v. Place, 451 A.2d 960, 962-63 (N.H. 1982) (holding that where the possessor’s use of disputed land had been hostile for the first nineteen years of the twenty-year statutory period, and the true owner then gave the possessor temporary permission to continue using the disputed land, the possessor had no claim for adverse possession because the possessor “fail[ed] to take positive action alerting [the true owner] that [the possessor] intended to use the land against [the true owner’s] wishes”).

In the current case, the parties do not dispute that Plaintiffs’ possession of the disputed tract was hostile during the eleven years between Plaintiffs’ purchase of the Jones tract in 1981 and their conversation with the Thomases in April 1992. Further, neither party disputes that in April 1992, the Thomases gave Plaintiffs permission to continue to use the disputed tract. According to Mrs. Thomas’ affidavit, when Plaintiffs approached the Thomases regarding a possible purchase of the disputed property, the Thomases gave Plaintiffs “temporary permission to use the small portion of the property on which the driveway encroached.” The Thomases did so by telling Plaintiffs that they “could keep using the part of the driveway that encroached onto our land ‘for now.’ ” Mr. Jones recalls that during this conversation, the Thomases told Plaintiffs to “just enjoy the land” and “don’t worry about it.” Likewise, during his deposition, Mr. Jones was asked whether he had “any sense that [Plaintiffs] didn’t have permission to continue using the driveway” following the April 1992 conversation. Mr. Jones responded “no,” indicating that he understood that he and Mrs. Jones had the Thomases’ permission to continue to use the disputed tract. Mrs. Jones testified in her deposition that her husband’s characterization of their conversation with the Thomases was accurate and complete.

Mr. Jones maintains that even after the April 1992 conversation, Plaintiffs believed that they still adversely possessed the disputed tract. However, Mr. Jones admitted in his deposition that between April 1992 and 2004, he never had any further conversations with the Thomases regarding the driveway encroachment, and never took any action or steps to indicate that he still wanted to acquire title to the disputed tract. Mrs. Jones likewise stated in her deposition that after April 1992, she had no further discussions with the Thomases regarding the encroachment. We therefore find that after April 1992, Plaintiffs’ use of the disputed tract was permissive. There is no indication that Plaintiffs expressly rejected the Thomases’ grant of permission, or otherwise took affirmative steps to put the Thomases back on actual or constructive notice that Plaintiffs intended to continue to possess the disputed tract in a manner hostile to the interests of the Thomases. Plaintiffs first manifested their hostile intent around July 2004 when they erected a fence around the disputed tract.

We find that Plaintiffs did not possess the disputed tract in a hostile manner for a continuous twenty-year period. Thus, Plaintiffs cannot establish a claim for adverse possession. The trial court therefore did not err in granting Defendant’s motion for summary judgment.

In light of the foregoing, we do not address Plaintiffs’ remaining arguments.

Affirmed.

Judge ELMORE concurs. Judge TYSON dissents with a separate opinion.

1 . Mr. Jones’ belief was based on a misapprehension of the statutory period required for adverse possession.

2 . Defendant correctly notes, however, that Webster’s cites no case law in support of this proposition.