The Statewide Title Newsletter and Legal Memorandum

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Issue  150  Article  251
Published:  1/1/2008

Six Year SOL Preserves Easement Encroachments
Chris Burti, Vice President and Legal Counsel

In the October 1995 issue of our Statewide Title, Inc. Newsletter and Legal Memorandum we wrote about the then recently released decision in Allen v. Sea Gate Association, Inc., 119 N.C. App. 761, (1995) applying the six-year Statute of Limitations to the attempted enforcement of a Restrictive Covenant setback violation. At that time, we speculated that it “would seem that this holding would also apply to violations of setbacks on plats and even potentially to encroachments in reserved easements.” We also surmised that an “interesting question arises from the reasoning presented. If a prescriptive easement takes twenty years to ripen, can it be cut off by six years of obstruction?” On December 18, 2007, the North Carolina Court of Appeals answered the first question and begged the second in its opinion in Pottle v. Link, COA07-359.

The plaintiffs in this case respectively own Tracts 4 and 6, adjoining properties, on Cedar Island in New Hanover County, North Carolina, and both are the owners of two easements, alleged to be thirty feet in width, which allow access to and from the public road to their respective tracts as well as other lots comprising Cedar Island. The defendants own Tracts 3 and 5 on Cedar Island, which are properties adjacent to the plaintiffs' properties and are the servient lots over which the alleged easements run.

Approximately eleven years before the plaintiffs filed this action, one of the defendants planted numerous trees on Tract 3. In 1996, that defendant planted two additional oak trees, replacing two destroyed by hurricanes. Thereafter, that defendant maintained the trees by installing an irrigation system and planting other landscaping on Tract 3 and in 2005, also constructed a fence on the tract. In 2004, the other defendant installed a post and rope fence on Tract 5. The plaintiffs alleged that all of this landscaping encroached onto their easement.

The plaintiffs initially filed a complaint on 8 February 2005, and Defendant Link filed motions and an answer on 13 April 2005. Plaintiffs then filed an amended complaint on 8 September 2005, adding Defendant Willets, and alleging that “[t]rees, shrubs, and other vegetation have grown up on [Defendant Link's] property . . . within and over the thirty foot easement area[,]” which “impede vehicular traffic, especially large vehicles such as delivery trucks, moving vans, and emergency vehicles.” Plaintiffs further alleged that Defendant Willets “placed a post and rope fence on the property . . . lying within and over the thirty foot easement area[.]” The amended complaint states that the encroachments interfered with Plaintiffs' right to the full use and enjoyment of the easement, and Plaintiffs prayed that the court order a preliminary and permanent injunction prohibiting Defendants from obstructing or interfering with Plaintiffs' right to the thirty-foot easement.   

The following is the Court’s synopsis of the actions giving rise to the action. “Plaintiffs provided the affidavits of Joseph M. James, M.D (James), Plaintiff Thomas Pottle, and Stuart Y. Benson to support their motion. James, a resident of Cedar Island, stated in his affidavit that the Snug Harbor South, LLC , deed conveyed the property with a right of ingress and egress over two thirty-foot roadway easements, ‘[t]he purpose [being] . . . to provide [access] from the public road to the property owners within Cedar Island.’ James stated, ‘[t]here is no other overland route by which I can access my house[,] . . . absent the [e]asements.’ When James began construction of his house, ‘[he] discussed with . . . Defendant [Link], the need to clear trees, shrubs and other vegetation from the [e]asements.’ James stated that he made attempts to remove the trees and encroachments by hiring contractors at his own expense, but Defendant Link consistently refused and ‘physically interposed himself and interfered with all attempts . . . to clear the [e]asements[.]’ James further stated that ‘Defendant [Willets] . . . maintains and continues to erect post and rope fencing around his property and within the [e]asements[,]’ and that James made similar attempts to remove the post and rope fencing, which Defendant Willets consistently refused. James said the encroachments make the right-of-way narrow and ‘create a low overhanging obstruction so as to prevent access to [his] house by any large vehicles[.]’” In the hearing on the motions for Summary Judgment the defendants argued that the applicable statute of limitations for injuries to incorporeal hereditaments, N.C. Gen. Stat. § 1-50(3), had expired, and that the plaintiffs' actions constituted an abandonment of the easement. The trial court entered an order granting the plaintiffs' motion for summary judgment and denying the defendants' motions for summary judgment and dismissal.

The defendants’ argument on appeal is that the trial court committed reversible error by granting the plaintiffs' motion for summary judgment because their claims are time-barred as argued to the trial judge. The plaintiffs argue that their claims are governed by N.C. Gen. Stat. § 1-40, the twenty-year adverse possession statute of limitations. As Court of Appeals determined that the facts were essentially undisputed, the only question before them was which statute of limitations applies, and that such is a question of law.

The Court set out a reasonably concise analysis of the law which we will quote unedited.

“‘Easements are classified as affirmative or negative.’ Davis v. Robinson, 189 N.C. 589, 598, 127 S.E. 697, 701 (1925) (internal quotation marks omitted) . An affirmative easement ‘is a right to make some use of land owned by another without taking a part thereof.’ Builders Supplies Co. v. Gainey, 282 N.C. 261, 266, 192 S.E.2d 449, 453 (1972) (citations omitted). A negative easement prohibits ‘the owner of a servient estate . . . from doing something otherwise lawful upon his estate, because it will affect the dominant estate.’ Davis, 189 N.C. at 598, 127 S.E. at 701 (internal quotation marks omitted) . ‘A restrictive covenant is a servitude, commonly referred to as a negative easement[.]’ Hawthorne v. Realty Syndicate, Inc., 43 N.C. App. 436, 440, 259 S.E.2d 591, 593 (1979) (citations omitted). Both a restrictive covenant and an easement are incorporeal hereditaments. Id. at 440, 259 S.E.2d at 593.” “ This Court has adopted the following definition of the term ‘incorporeal hereditament,’ which ‘derives from English law’:
        Anything, the subject of property, which is inheritable and not tangible or visible. A right issuing out of a thing corporate (whether real or personal) or concerning or annexed to or exercisable within the same. A right growing out of, or concerning, or annexed to, a corporeal thing, but not the substance of the thing itself. Karner v. Roy White Flowers, Inc., 134 N.C. App. 645, 649, 518 S.E.2d 563, 567 (1999), rev'd on other grounds, 351 N.C. 433, 527 S.E.2d 40 (2000), (citing Black's Law Dictionary 726 (6th ed. 1990)). The 8th edition of Black's Law Dictionary defines ‘incorporeal hereditament’ as ‘[a]n intangible right in land, such as an easement.’ Black's Law Dictionary 743 (8th ed. 2004).”

N.C. Gen. Stat. § 1-50(3) (2005) requires that an action for injury to any incorporeal hereditament be brought within six years. See also Boyden v. Achenbach, 79 N.C. 539, 543 (1878) (stating that “[i]f the right of way is claimed as an incorporeal hereditament . . . then six years is the statute [of limitations]”).   

Plaintiffs cited Karner, and Bishop v. Reinhold, 66 N.C. App. 379, 311 S.E.2d 298 (1984), in support of their argument that the six-year statute of limitations under G.S. § 1- 50(3) does not apply even though easements are incorporeal hereditaments. The plaintiff’s argument as stated by the Court was that the limitation period of twenty years applied as the injury to the easement is similar to an adverse possession claim. To a certain extent, the plaintiffs were correct although the Court of Appeals chose to distinguish the cases because in Bishop the claim involved injuries to the fee simple rather than to an easement and the Court appeared to fail to discern the difference between an attempt to enforce the violation of a restrictive covenant in Karner and that of enjoining the blocking of an easement in the instant case.

The Court of Appeals said: “Furthermore, in Karner, this Court rejected a similar argument and ruled that G.S. § 1-50(a)(3), the statute of limitations for injury to an incorporeal hereditament, was applicable to restrictive covenants. In Karner, the defendants intended to construct a commercial building in a neighborhood developed as a residential subdivision, and the plaintiffs, lot owners in the neighborhood, filed a complaint to enjoin defendants from erecting the structure. Defendants answered with the defense that the statute of limitations for injury to an incorporeal hereditament, G.S. § 1-50(a)(3), had expired. Plaintiffs then argued that the “correct statute of limitation . . . [was] the 'prescriptive period' of twenty years.” Karner, 134 N.C. App. at 649, 518 S.E.2d at 567. The Court distinguished Bishop, stating that “a residential restrictive covenant is at issue rather than [a] . . . prescriptive easement [to property held in fee].” Id. at 650, 518 S.E.2d at 567. Therefore, G.S. § 1-50(a)(3) was the applicable statute of limitations.”
“Here, we find the logic of Karner persuasive . Because an injury to an incorporeal hereditament is at issue, rather than a continuous trespass or a prescriptive easement to property held in fee, as in Bishop and Williams, we conclude that G.S. § 1-50(a)(3) is the applicable statute of limitations, and Plaintiffs' case is barred if the six year statute of limitations is satisfied.”
The problem with this analysis is that the evidence in the case is that the defendants obstructed the plaintiffs’ attempts to remove the obstructions and apparently continue to prevent the removal. That obstruction is a trespass that is present and continuous.

The court in Karner stated that the “present case is distinguishable from Bishop in that a residential restrictive covenant is at issue rather than an encroachment and/or prescriptive easement.(emphasis added, ed.)” Karner v. Roy White Flowers, Inc., 134 N.C. App. 645, 650, 518 S.E.2d 563, 569. The plaintiffs in Karner were relying on the principle espoused in Skvarla v. Park, 62 N.C. App. 482, 488, 303 S.E.2d 354, 358 (1983).where that Court said: "[a]n easement may be extinguished by adverse use by the owner of the servient property for the prescriptive period." This is the principle that the Court of Appeals seems to have failed to address in the instant case.  

The Court of Appeals acknowledges that the fences were constructed less than six years ago and while their location in the easement is contested and thus sufficient to prevent summary judgment, it is implicit that they must be removed if so located. The Court ruled that the trial court erred by granting summary judgment in favor of the plaintiffs and remanded the case for entry of summary judgment for the defendants on all issues for which the statute of limitations has expired. The court excepted the issues of the fences installed in 2004 and 2005. It is unstated, but seems implicit in the opinion that the Court of Appeals recognizes that the six-year limitation period does not cut off the easement rights.

Removing trees, shrubs and fences is one thing; removing part of a partially encroaching structure is another matter altogether. One would expect that the courts would not approve of any self-help remedy with regard to structures due to the inevitable resultant damage to the non-encroaching portion of the structure.

The right of the dominant owner to maintain the easement is so fundamental that maintenance is almost universally alleged and cited as the operative hostile act in prescriptive easement cases that it can fairly be said to have become definitional.  In Stanley v. Laughter, 162 N.C. App. 322, 324, 590 S.E.2d 429, 431 (2004), the Court of Appeals held that the trial court did not err in granting a defendant's motion for directed verdict on the plaintiffs' claims for trespass, negligence and injury to real property, where defendant "removed the trees and shrubbery from his land and [a] thirty-foot strip of land in order to gain access to [a] sixty-foot wide easement from his 1.46 acre tract." Where the right exists it encompasses the right to an injunction to prohibit prevention of such maintenance as declared in Stokes County Soil v. Shelton, 67 N.C. App. 728, (1984). That case also held that summary judgment is appropriate where no genuine issue of fact concerning the right to perform maintenance and to the acts of preventing maintenance existed and the plaintiff was entitled to injunctive relief as a matter of law.

In conclusion, the question begged by the Court of Appeals is whether the Plaintiffs may exercise their common law right to clear the easement of vegetation that prevents the use of the easement to the full width.

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