Adverse Possession of Right of Ways

 

 

I believe that NCGS 1-45 stands for the premise that a public right of way cannot be claimed by adverse possession.  Check that statute and see what you think.  There certainly may be other issues at play, but I looked up that reference because it was my belief that a public right of way could not be claimed by adverse possession.

 Here is some language from Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974):

 

In the case before us we must apply the following legal principles which are now established by decisions of this Court:

 

1. The burden of proving the elements essential to the acquisition of a prescriptive easement is on the party claiming the easement. Williams v. Foreman, 238 N.C. 301, 77 S.E.2d 499 (1953), and cases therein cited.

 

2. The law presumes that the use of a way over another's land is permissive or with the owner's consent unless the contrary appears. Henry v. Farlow, 238 N.C. 542, 78 S.E.2d 244 (1954); Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946), and cases therein cited.

 

3. The use must be adverse, hostile, or under a claim of right. Dulin v. Faires, 266 N.C. 257, 145 S.E.2d 873 (1966); Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2 (1926); Mebane v. Patrick, 46 N.C. 23 (1853). ‘To establish that a use is ‘hostile’ rather than permissive, ‘it is not necessary to show that there was a heated controversy, or a manifestation of ill will, or that the claimant was in any sense an enemy of the owner of the *581 servient estate.’ (Citations omitted.) A ‘hostile’ use is simply a use of such nature and exercised under such circumstances as to manifest and give notice that the use is being made under claim of right.' Dulin v. Faires, supra. There must be some evidence accompanying the user which tends to show that the use is hostile in character and tends to repel the inference that it is permissive and with the owner's consent. Boyden v. Achenbach, supra. A mere permissive use of a way over another's land, however long it may be continued, can never ripen into an easement by prescription. Nicholas v. Furniture Co., 248 N.C. 462, 103 S.E.2d 837 (1958); Williams v. Foreman, supra.

 

4. The use must be open and notorious. ‘The term ‘adverse user’ or ‘adverse possession’ implies a user or possession that is not only under a claim of right, but that it is open and of such character that the true owner may have notice of the claim, and this may be proven by circumstances as well as by direct evidence.' Snowden v. Bell, 159 N.C. 497, 75 S.E. 721 (1912).

 

5. The adverse use must be continuous and uninterrupted for a period of twenty years. Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946). ‘The continuity **901 required is that the use be exercised more or less frequently, according to the purpose and nature of the easement.’ J. Webster, Real Estate Law in North Carolina s 288 (1971). An interruption to an easement for a right-of-way ‘would be any act, done by the owner of the servient tenement, which would prevent the full and free enjoyment of the easement, by the owner of the dominant tenement . . ..’ Ingraham v. Hough, 46 N.C. 39 (1853).

 

6. There must be substantial identity of the easement claimed. Hemphill v. Bd. of Aldermen, 212 N.C. 185, 193 S.E. 153 (1937). ‘To establish a private way by prescription, the user for 20 years must be confined to a definite and specific line. While there may be slight deviations in the line of travel there must be a substantial identity of the thing enjoyed.’ Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946).