Opinion
No. COA10-951
Filed 3 May 2011 This case not for publication
Appeal by Defendant from judgment entered 2 February 2010 by Judge Anderson D. Cromer in Alleghany County Superior Court. Heard in the Court of Appeals 14 December 2010.
McElwee Firm, PLLC, by John M. Logsdon, for Plaintiff-Appellee. Smith Moore Leatherwood LLP, by James G. Exum, Jr. and L. Cooper Harrell, for Defendant-Appellant.
Alleghany County No. 08-CVS-305.
Defendant appeals from a judgment in which the trial court awarded Plaintiff damages for Defendant's trespass. Because the trial court's findings of fact were supported by competent evidence and Defendant challenges the trial court's judgment raising arguments that were not considered below, we affirm.
Plaintiff, Ann Joines, is the owner of a tract of land located in Alleghany County, North Carolina (Bettie Joines Farm). Plaintiff's late husband acquired the property by deed dated 29 March 1982, and Plaintiff acquired the Bettie Joines Farm from her husband's estate. The description provided in the 1982 deed was taken from a survey performed in 1981 by Bobby J. Oliver (Oliver Survey).
Defendant, Dean R. Joines, owns an adjoining tract of land which borders the southern portion of the Bettie Joines Farm (Mill Tract). Defendant acquired the Mill Tract by deed dated 2 July 1991. The description of the property provided in the deed was taken from a survey completed on 8 November 1986 by Gene Dysart (Dysart 1986 Survey). The Oliver Survey and the Dysart 1986 Survey both set the "northern boundary of the Mill Tract" as a line "extending from a 14-inch maple at a branch to an 8-inch dogwood on the eastern side of the Little River."
For some time prior to 1977,
the North Carolina Department of Transportation ("NCDOT") maintained a public road extending from the northern boundary of the Bettie Joines Farm and running generally southerly to the Little River, thence along the western side of the Little River to the northern end of an island, then crossing the Little River at a ford, and continuing [south]. . . . Portions of this road are shown on the Oliver Survey and the Dysart 1986 Survey.
By 1989, acting upon several requests from the Alleghany County Commissioners, the NCDOT abandoned all portions of the road that ran through the Bettie Joines Farm. Currently, the NCDOT "does not maintain any portion of the old road between the southern end of S.R. 1501 (the Sally Road) near the northern boundary of the Bettie Joines Farm and the northern end of S.R. 1428 (the Natural Dam Road) southerly of the property in question."
In 2008, Defendant made several changes to a portion of the now abandoned former public road. "These changes [include] removal of timber, grading, installation of culverts, and placement of gravel, and the creation of a parking area near the river." On 29 September 2008, Plaintiff filed a complaint in which she sought an order from the trial court to quiet title, and requested that the trial court determine the boundary line between her property and Defendant's. Plaintiff alleged that Defendant trespassed upon her property when making the improvements and requested damages for Defendant's trespass. Defendant filed an answer, counterclaim, and affirmative defense on 1 December 2008. Attached to Defendant's answer were a number of exhibits. Included in the exhibits was a survey dated 28 March 2003 prepared by Gene Dysart (Dysart 2003 Survey).
The Dysart 2003 Survey depicted the northern boundary of Mill Tract in the same location as the Dysart 1986 Survey. However, the Dysart 2003 Survey also includes "an `old road' with the notation `Possible Northern Boundary' extending to the ford of the former public road." Additionally, The Dysart 2003 Survey included an explanatory note concerning the possible location of the northern boundary line. Also included in the exhibits was a copy of a survey acquired by Defendant following the receipt of a quitclaim deed from a bordering tract of land (the Dysart 2007 Survey). "The Dysart 2007 Survey [also] depicts the northern boundary line of the Mill Tract as running with an old road to the ford of the former public road. Included in this plat are additional explanatory notes concerning the location of the northern boundary line."
A bench trial began on 12 October 2009. At trial, Defendant generally argued that the northern boundary of the Mill Tract bordered the former public road as depicted in the Dysart 2003 and 2007 Surveys. Defendant further reasoned that because the northern boundary of his property borders the former public road, he had a right of way across the former public road. After viewing the premises, reviewing the documentary evidence, and listening to expert testimony, the trial court concluded that the northern boundary of the Mill Tract was as it was depicted in the Dysart 1986 Survey. Accordingly, Defendant did not have an easement across the former public road and his actions constituted a trespass upon Plaintiff's property. The trial court awarded Plaintiff damages as a result of Defendant's trespass.
Defendant appeals the trial court's order arguing that: (I) the northern boundary of the Mill Tract established by the trial court is inconsistent with the deed descriptions provided in the chain of title; (II) Plaintiff failed to establish the location of the northern boundary line by a preponderance of the evidence; and (III) the trial court erred in determining that he had trespassed on Plaintiff's property.
I.
Defendant first argues that because the northern boundary of the Mill tract established by the trial court is inconsistent with the deed descriptions, the trial court's findings as to the location of the northern boundary were erroneous. We disagree.
"[W]hen 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 Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). Findings supported by competent evidence are binding on appeal, despite the existence of contrary evidence. Gainey v. Gainey, 194 N.C. App. 186, 188, 669 S.E.2d 22, 24 (2008). The trial court's conclusions of law are reviewed de novo. Coghill v. Oxford Sporting Goods, Inc., 143 N.C. App. 176, 179, 545 S.E.2d 754, 756 (2001).
It is well established that "after a party has elected to try his case on one theory in the lower court he may not be permitted to change his attitude with respect thereto on appeal." Walker v. Burt, 182 N.C. 325, 330, 109 S.E. 43, 45 (1921). For example, in Taylor Co. v. Highway Commission, the petitioner challenged the amount of compensation that he received as a result of the government taking of his land for the widening of a highway. 250 N.C. 533, 535, 109 S.E.2d 243, 244 (1959). At trial, the petitioner argued that the fair market value of the land should be assessed as of 30 December 1955. Id. at 537, 109 S.E.2d at 246. However, on appeal, the petitioner asserted that the taking occurred on 13 September 1957. Id. Addressing the petitioner's change in dates, our Supreme Court held that "[the petitioner] elected to try its case in the lower court on the theory that the date of taking was 30 December 1955, and it will not be permitted to change its attitude with respect thereto on appeal." Id. at 538, 109 S.E.2d at 246.
In this case, Defendant raises several arguments on appeal that were not considered by the trial court below. At the bench trial, Defendant argued that the northern boundary of the Mill Tract abutted the former public road as depicted in the Dysart 2003 and 2007 Surveys. However, on appeal, Defendant contends that the Northern boundary of the Mill Tract borders a ford at the neighboring Little River. Defendant's new argument on appeal places the northern boundary of the Mill Tract in a place other than the location argued at trial. Defendant is precluded from arguing that the boundary is in one place at trial and arguing that it is at a completely different location on appeal.
Even assuming that Defendant was permitted to raise these arguments for appellate review, they would be unavailing. In its findings of fact the trial court determined that:
15. Surveyor Bobby J. Oliver is deceased. John Marvin Myers, Professional Land Surveyor, testified on behalf of the plaintiff concerning his location survey of the southern portion of the Bettie Joines Estate, as shown on his plat dated April 7, 2003, and revised October 10, 2009, Plaintiff's Exhibit 5. Myers also testified as to his research into the deeds in the chains of title of the plaintiff, including changes in the property descriptions over time. Myers also testified as to his research into the deeds in the chain of title of the defendant, as well as the deeds to adjoining properties. The Court finds the testimony of Myers to be consistent, credible and supportive of the location of the boundary line as shown on the Oliver Survey and the Dysart 1986 Survey.
Defendant does not challenge the trial court's factual finding by contending that Myers is not an expert, or that Myers did not actually review any of the pertinent deeds. Defendant merely tends to argue that Myers came to the wrong conclusion after reviewing the relevant evidence. However, as we have already discussed, the existence of contrary evidence will not overturn the trial court's finding fact when there is at least some evidence to support it. Gainey, 194 N.C. App. at 188, 669 S.E.2d at 24. Accordingly, the trial court's determination as to the location of the northern boundary of the Mill Tract is supported by competent evidence and will not be overturned on appeal.
II.
Defendant next argues that "the trial court erred in setting the northern boundary of the Mill Tract because Plaintiff failed to carry her burden to establish the property line by a preponderance of the evidence." We disagree.
"An action [to quiet title] may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claims. . . ." N.C. Gen. Stat. § 41-10 (2009). "In an action to quiet title, the burden of proof is on the plaintiff to establish [valid] title." Heath v. Turner, 309 N.C. 483, 488, 308 S.E.2d 244, 247 (1983). A plaintiff can "do so by traditional methods or by reliance on the Real Property Marketable Title Act." Id. Most relevant to this case, the Marketable Title Act provides that:
[a]ny person having the legal capacity to own real property in this State, who, alone or together with his predecessors in title, shall have been vested with any estate in real property of record for 30 years or more, shall have a marketable record title to such estate in real property.
N.C. Gen. Stat. § 47B-2(a) (2009). In this case, Plaintiff was able to carry her burden to establish title to the disputed property.
In an unchallenged finding of fact, the trial court determined that "Plaintiff derives her title from a deed James Anders to William H. Joines, dated February 9, 1859." Plaintiff received the Bettie Joines Farm from the estate of her deceased husband. The 1982 deed conveying the Bettie Joines Farm to Plaintiff's husband included a description of the land that was taken from the Oliver Survey. The Oliver Survey does not depict the former public road as abutting the Northern Boundary of Defendant's Mill Tract. Interpreting this deed and others within the chain of title, Plaintiff's expert concluded that the location of the northern boundary was as it was depicted in the Oliver Survey. Accordingly, Plaintiff presented sufficient evidence to establish title in the disputed property.
III.
In his final argument on appeal, Defendant contends that "the trial court erred in determining that [he] had trespassed on Plaintiff's property because the evidence showed that [he] had an easement or right of way to use the former public road." We disagree.
When the NCDOT abandons a public road, landowners with property abutting the former public road have an easement for necessary ingress and egress. See Community Club v. Hoppers, 43 N.C. App. 671, 677, 260 S.E.2d 94, 97 (1979). The abandoned road may not be closed by the owner of the land through which the former public road passes without the consent of all abutting landowners. Id. Defendant asserts and Plaintiff concedes that if Defendant had an easement across the former public road, there would be no trespass. However, as we discussed in the preceding sections, the trial court appropriately determined that the northern boundary of Defendant's Mill Tract did not abut the former public road. Accordingly, Defendant did not possess an easement.
Defendant also argues that an "old road" depicted in the 2003 and 2007 Dysart Surveys, provided him with an easement for ingress and egress because the "old road" was also a former public road. However, Defendant fails to present sufficient evidence that the "old roads" had been roads open to the public. At trial, Defendant testified that he recalled from childhood that the "old road" was open to the public and maintained by the County until responsibility was passed to the State. However, Defendant offers no documentary or expert evidence as the manner in which the "old roads" were established or that they were open to the public. Though Defendant has lived in the area for some time, his mere recollection, standing alone, was not so persuasive that the trial court erroneously failed to find that the "old roads" provided Defendant with an easement to make changes in the former public road.
Lastly, Defendant contends that the trial court failed to determine that he has an easement by necessity across the former public road. Again, we disagree. Our Courts have recognized that:
[a] way of necessity arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over grantor's other land or land of a stranger. In such cases, grantor impliedly grants a right-of-way over his land as an incident to purchaser's occupation and enjoyment of the grant.
Oliver v. Ernul, 277 N.C. 591, 599, 178 S.E.2d 393, 397 (1971) (internal quotation marks and citation omitted). To establish an easement by necessity a plaintiff must show that (I) a dominant tract and a servient tract were once held in common ownership and were severed by a conveyance; and (II) an easement became necessary as a result of the conveyance. Cieszko v. Clark, 92 N.C. App. 290, 296, 374 S.E.2d 456, 460 (1988). "It is not necessary that the party claiming the easement show absolute necessity. An easement by necessity may arise even where other inconvenient access to the parcel in question exists." Boggess v. Spencer, 173 N.C. App. 614, 618, 620 S.E.2d 10, 13 (2005).
In the case sub judice, Defendant failed to raise the issue of easement by necessity at the trial court proceeding; therefore, it is not properly before this Court for review. At trial, Defendant alleged ownership of a tract of land containing 7.60 acres and abutting the former public road. Defendant argues that because he conveyed approximately 1.166 acres of the tract and the portion that he owned no longer abutted the former public road, he has an easement by necessity across the servient tract. However, Defendant failed to argue or present sufficient that an easement across that land he conveyed was necessary as contemplated by North Carolina authority. Because Defendant failed to present sufficient evidence to support an essential finding to the determination of the existence of an easement by necessity, he is unable to present such evidence for review for the first time on appeal.
IV.
Plaintiff appeals the trial court's judgment arguing that the trial court erroneously reduced the amount of damages proved by Plaintiff. We disagree.
A trial court's findings of fact as to the appropriate amount of damages will not be disturbed on appeal if they are supported by competent evidence. Strader v. Sunstates Corp., 129 N.C. App. 562, 574, 500 S.E.2d 752, 759 (1998). In this case the trial court found that:
20. Danny K. Miller testified on behalf of Plaintiff concerning damage to the Plaintiff's property arising from the alterations and attempted enlargement of the former public road made by Defendant in 2008. Miller is a grading contractor and a former employee of NCDOT, and has experience in grading, road construction, and environmental mitigation. Miller testified as to his findings related to the cost of restoration of Plaintiff's property, and summarized his findings related to the cost of restoration of Plaintiff's property, and summarized his findings in a written report, Despite testimony of real property damages totaling $24,767.50, the Court after considering all of the evidence and viewing the property affected in question finds the damages to be $2,500.00.
Though the expert testifying at trial determined that the amount of damages in this case was significantly higher, the trial court visited the property and came to a different conclusion. The trial court's survey of the subject premises is competent evidence that the damages were not as extensive as suggested by Plaintiff or Plaintiff's expert. Because the trial court's finding of fact was supported by competent evidence it will not be overturned on appeal.
Affirmed.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).