Lancaster v. Maple Street Homeowners Ass'n, Inc.

577 S.E.2d 365, 156 N.C. App. 429, 2003 N.C. App. LEXIS 194
CourtCourt of Appeals of North Carolina
DecidedMarch 18, 2003
DocketCOA02-666
StatusPublished
Cited by7 cases

This text of 577 S.E.2d 365 (Lancaster v. Maple Street Homeowners Ass'n, Inc.) 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
Lancaster v. Maple Street Homeowners Ass'n, Inc., 577 S.E.2d 365, 156 N.C. App. 429, 2003 N.C. App. LEXIS 194 (N.C. Ct. App. 2003).

Opinions

TYSON, Judge.

Carolyn Lancaster et al. (“plaintiffs”) and Maple Street Homeowners Association, Inc. (“defendant”) both claimed ownership to real property located in Columbus County (“disputed property”). On 13 August 2001, a jury determined that defendant acquired title to the disputed property by adverse possession. Plaintiff appeals. We affirm in part, reverse in part, and remand for a new trial.

I. Background

In 1900, John P. Council, Jr. acquired by deed a tract of land containing approximately 925 acres in Columbus County from Robb L. Bridger and wife, Emma, that included the disputed property. This deed is recorded at Book QQ, Page 355, Columbus County Registry. John P. Council, Jr. died intestate in 1929. On 28 February 1931, his heirs-at-law conveyed their interests in the property to Estate of J. P. Council, Inc., a North Carolina corporation. This deed is recorded at Book 139, Page 392, Columbus County Registry. This deed described five tracts by metes and bounds and a sixth “catch all” description of “Any right, title, or interest which J. P. Council, late of Columbus County, have had in any other real estate in Columbus County.” The [431]*431“First Tract” set forth a description of approximately 686 acres of property. Following that description, the deed stated:

This description is intended to cover all of that tract of land known as the J. P. Council farm and to include three vacant lots of a subdivision of the property by J. P. Council on the north shore of Waccamaw Lake, provided these lots have not previously been legally conveyed and which three lots are not included in the boundary recited above.

After the description of the “Third Tract”, the deed stated:

For further description of the above three tracts, See records of Columbus County, Book QQ, page 355,56,57, which covers a tract of land deeded to J. P. Council by R. L. Bridger, from which tract conveyances have been made to J. Sam Wright, A. I. Smalley, The Council Tool Company, A.J. Edwards, J. A. Powell, et al.

On 5 April 1941, the Estate of J.P. Council, Inc. conveyed to K. Clyde Council real property in Columbus County. The 1941 deed contained a metes and bounds description of the property conveyed and excepted two tracts of land. It further provided:

The above description is intended to cover all of that tract of land known as the J. P. Council farm and referred to as the first tract in a conveyance from E. B. Council and others to the [Estate of J.P. Council, Inc.], recorded in Book 139, Page 392, Registry of Columbus County.

After K. Clyde Council died, his interest in the real property passed to plaintiffs.

The disputed property is located on and near the shore of Lake Waccamaw and on both sides of and at the end of Maple Street in three separate areas: (1) a strip north of Lake Shore Drive and south of the Hall’s lot between Lot No. 4 of the J.P. Council Subdivision and Maple Street; (2) a strip north of Lake Shore Drive between Maple Street and Lot No. 5 of the J.P. Council Subdivision; and (3) south of Lake Shore drive and north of the north shore of Lake Waccamaw between Lot No. 4 and Lot No. 5 of the J.P. Council Subdivision.

Several families residing on Maple Street began using the disputed property in the 1950’s for family recreational and social activities and for access to the lake. The families installed wooden posts along the lakeside property to prevent parking and littering. They maintained the property by cutting trees and removing them, cut[432]*432ting the grass, planting trees and shrubbery and generally maintained the landscape. The families built steps leading from the shore to the lake, placed picnic tables on the disputed property, and installed “Private Parking” signs on the disputed property. Vernon Hall testified that she thought of the disputed property as an extension of her own property.

Until 1992, some of the families along Maple Street believed that the property was owned by the Town of Lake Waccamaw. On 11 May 1993, the Town Council adopted a resolution which denied any ownership of the disputed property. After the town’s resolution, the families deeded their interests in the property to defendant by quitclaim deeds. Defendant has paid the ad valorum property taxes on the disputed property since 1993.

Plaintiffs sued for trespass, injunction, and a determination of ownership of the disputed property. Defendant answered and asserted that it owned the property through adverse possession. The jury determined plaintiffs did not have record title to the disputed property and defendant owned the property through adverse possession. Plaintiffs appeal.

II. Issues

Plaintiffs contend that the trial.court erred (1) in ruling that a portion of the 1931 deed was patently ambiguous; (2) in denying plaintiffs’ motion for directed verdict on the issue of defendant’s adverse possession; and (3) in allowing the cross-examination of witnesses regarding a change in plaintiffs’ legal theory following a ruling on defendant’s motion in limine.

III. Motion to Dismiss Anneal

Defendant filed a motion to dismiss the appeal. Defendant contends that appellants’ proposed record on appeal was served contrary to the Rules of Appellate Procedure and is subject to dismissal.

Rule 11(b) of the North Carolina Rules of Appellate Procedure provides that the appellant must serve the proposed record on appeal on the appellee “[wjithin 35 days after the reporter’s or tran-scriptionist’s certification of delivery of the transcript, if such was ordered . . ., or 35 days after filing of the notice of appeal if no transcript was ordered.” Rule 27(c)(1) states that the trial court “for good cause shown by the appellant may extend once for no more than 30 days the time permitted by Rule 11 or Rule 18 for the service of the [433]*433proposed record on appeal.” All other motions for extensions of time “may only be made to the appellate court to which appeal has been taken.” N.C. R. App. P. 27(c)(2) (2002). If the appellee objects to the filing of the proposed record, it has 21 days to “serve upon all other parties specific amendments or objections to the proposed record on appeal, or a proposed alternative record on appeal.” N.C. R. App. P. 11(c). Within 10 days, the appellant may request the judge whose order is being appealed to settle the record on appeal. N.C. R. App. P. 11(c). “The hearing [to settle the record on appeal] shall be held not later than 15 days after service of the request for hearing upon the judge. The judge shall settle the record on appeal by order entered not more than 20 days after service of the request for hearing upon the judge.” N.C. R. App. P. 11(c).

The trial court granted plaintiffs an extension of 45 days to submit a proposed record on appeal without objection from defendant. Plaintiffs complied with the trial court’s order and submitted its proposed record on the 45th day. Defendant objected to the content of the proposed record. Because the original trial court judge had died, a new judge was appointed. Ultimately, the record on appeal was settled 74 days after the appointment of the new judge.

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Lancaster v. Maple Street Homeowners Ass'n, Inc.
577 S.E.2d 365 (Court of Appeals of North Carolina, 2003)

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Bluebook (online)
577 S.E.2d 365, 156 N.C. App. 429, 2003 N.C. App. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lancaster-v-maple-street-homeowners-assn-inc-ncctapp-2003.