Opinion
No. 8122SC71
Filed 20 October 1981
Easements 8.4 — obstruction and interference with use of easement — summary judgment improper Where plaintiff forecast evidence which tended to show that defendants constructed a concrete driveway over and unpaved cul-de-sac in which they shared an easement with plaintiff and that the change in access "greatly impaired the fair market value of the plaintiffs lot," and defendants forecast evidence which tended to show the market value of plaintiffs lot was unchanged, it was error to grant summary judgment for defendants as there was a genuine issue of material fact presented by the forecasts of evidence.
APPEAL by plaintiff from Davis, Judge. Order granting defendants' motion for summary judgment entered 15 October 1980 in Superior Court, DAVIDSON County. Heard in the Court of Appeals 1 September 1981.
Wilson, Biesecker, Tripp Sink, by Joe E. Biesecker, for plaintiff-appellant.
Ted S. Royster, Jr., for defendant-appellees.
Judge HEDRICK dissenting.
Plaintiff and defendants are adjoining lot owners in Sapona Subdivision in Davidson County. The recorded map reveals the lots are served by Indian Wells Circle, a paved street. Between the street and the lots is an unpaved half circle, or cul-de-sac, over which both parties pass for ingress and egress from Indian Wells Circle to their lots. Defendants constructed a sixteen-foot wide concrete driveway from their lot across the cul-de-sac and in front of plaintiff's lot to Indian Wells Circle.
Plaintiff contends that his and defendants' lots were acquired with easements appurtenant in the above-described street and cul-de-sac, and that defendants' driveway restricts access to his lot so that plaintiff has no reasonable and adequate access to his property. Plaintiff seeks to enjoin defendants from obstructing or interfering with his use of his easement appurtenant in the cul-de-sac, and prays for damages. Defendants admitted construction of the concrete driveway across the portion of the cul-de-sac which adjoins defendants' lot, but contended that the cul-de-sac, and apparently the portion of the driveway therein, is dedicated to public use and therefore is for the equal use and benefit of both parties.
Defendants filed a motion for summary judgment with their answer, and plaintiff filed a motion for summary judgment thereafter. The trial judge concluded that there was no genuine issue of material fact and granted defendants' motion for summary judgment against plaintiff. Plaintiff appeals. We reverse the order of the trial judge granting defendants' motion for summary judgment and remand the case for trial.
Summary judgment is proper where "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." G.S. 1A-1, Rule 56 (c). In ruling on a motion for summary judgment, the trial judge does not decide issues of fact but merely determines whether a genuine issue of fact exists. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). The affidavits filed in support of the parties' motions for summary judgment provide forecasts of evidence upon which we base our review of the trial judge's decision that no genuine issue of material fact exists in this case.
Defendants' affidavits forecast evidence by local realtors which tends to show that the market value of plaintiff's lot was not damaged by the construction of defendants' driveway across the cul-de-sac. Plaintiff's affidavits forecast evidence which tends to show that the construction of defendants' driveway in front of plaintiff's lot "blocked reasonable and necessary access to the plaintiff's lot," and that the alleged change in plaintiff's access "greatly impaired the fair market value of the plaintiff's lot." We must examine these affidavits in light of Rule 56 (e) of the North Carolina Rules of Civil Procedure which requires allegations of "specific facts showing that there is a genuine issue for trial." Thus, the question for our decision is whether the above-quoted forecasts of evidence are sufficient under Rule 56 (e) to show a genuine issue of material fact. We hold that the forecasts are sufficient to withstand summary judgment.
"Generally, an owner in common in an easement cannot make alterations which will render the easement appreciably less convenient and useful to any one of the co-tenants." 25 Am. Jur.2d Easements and Licenses 88, p. 494. Although plaintiff has not spelled out in minute detail the changes in access to his lot made by the construction of the driveway, we find he has alleged facts to show that such construction in front of his lot has created a change in plaintiff's access thereto. Since the facts alleged in plaintiff's affidavit are within his personal knowledge and are admissible at trial, he has forecast evidence from which a jury may find that his use of the easement is "appreciably less convenient and useful."
We believe plaintiff has forecast a genuine issue of material fact as to the change in access and its attendant effect upon the value of plaintiff's lot. We therefore reverse the order of the trial judge granting defendants' motion for summary judgment and remand the case for trial.
Reversed and remanded.
Judge WHICHARD concurs.
Judge HEDRICK dissents.