McCracken v. Clark

69 S.E.2d 184, 235 N.C. 186, 1952 N.C. LEXIS 363

Opinion

JOHNSON, J.

Tbe trial court erred in directing tbe verdict on tbe second issue. On that issue, tbe burden of proof was upon tbe defendants. This being so, they were not entitled to a directed instruction.

To establish tbe easement claimed by tbe defendants tbe burden of proof was upon tbem to satisfy tbe jury by tbe greater weight of tbe evidence that tbe user relied on was hostile in character, rather than permissive and with tbe owners’ consent. McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Chesson v. Jordan, 224 N.C. 289, p. 292, 29 S.E. 2d 906. “Permissive use is presumed until tbe contrary is made to appear.” Speight v. Anderson, 226 N.C. 492, p. 497, 39 S.E. 2d 371.

It is established by many authoritative decisions of this Court that a directed instruction in favor of tbe party having tbe burden of proof is forbidden. Haywood v. Ins. Co., 218 N.C. 736, 12 S.E. 2d 221, and cases cited.

We have not overlooked tbe defendants’ contention that they acquired an easement by implied grant. As to this phase of tbe case, tbe burden of proof was nonetheless on tbe defendants. 17 Am. Jur., Easements, Sec. 54 (see also sections 32, 33, and 48); Carmon v. Dick, 170 N.C. 305, 87 S.E. 224; Ferrell v. Trust Co., 221 N.C. 432, 20 S.E. 2d 329.

New trial.