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NCSU ARE 306 - CONCERNED CITIZENS v. HOLDEN BEACH ENTERPRISES

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North Carolina ReportsAugust 13, 1999 CONCERNED CITIZENS v. HOLDEN BEACH ENTERPRISES, 329 N.C. 37 (1991) 404 S.E.2d 677 CONCERNED CITIZENS OF BRUNSWICK COUNTY TAXPAYERS ASSOCIATION, RAYMOND COPE AND ROYAL WILLIAMS v. STATE OF NORTH CAROLINA EX REL. S. THOMAS RHODES, SECRETARY OF THE DEPARTMENT OF NATURAL RESOURCES AND COMMUNITY DEVELOPMENT v. HOLDEN BEACH ENTERPRISES, INC. No. 401PA89 Supreme Court of North Carolina Filed 12 June 19911. Easements 6.1 (NCI3d) - prescriptive easement - substantial identity of easement - improper test applied by trial court In an action to determine whether an easement by prescription had been established by the public's use of a pathway along and across the shifting dunes of an area at Holden Beach the trial court erred in failing to make any determination as to whether there was substantial identity of the easement claimed and erred in determining only that plaintiffs had failed to show the existence of a "single" or the "same" definite and specific line of travel for the prescriptive period. Am Jur 2d, Waters 354, 391.2. Easements 6.1 (NCI3d) - prescriptive easement - substantial identity of easement - factors to be considered - vulnerability of road to forces of nature In determining whether an easement has substantially retained its identity over time, factors which the fact finder may consider include the vulnerability of the road traveled due to forces of nature, and this is particularly pertinent where the easement claimed is across windswept, shifting sands which are subject to ocean storms, since, to require that there be no change, or at most only very slight change, in a road traveled by many for the prescriptive period over an area highly vulnerable to the forces of wind, shifting sand, ocean tide, flooding from ocean or sound, etc. would effectively bar the acquisition of a prescriptive easement in many locales of the coastal area of North Carolina. Am Jur 2d, Waters 354, 391.Page 38 3. Easements 6.1 (NCI3d) - prescriptive easement - public's access to beach - use continuous and uninterrupted The trial court erred in concluding that defendant interrupted the use of the pathway in question by the general public in a manner that caused that use not to be continuous and uninterrupted where the evidence tended to show that defendant put telephone poles, cables, and gates across the pathway, but as defendant's efforts to prevent unauthorized passage through the property increased, so did the acts of the public to assert its claim to the use of the roadway by disregarding, removing, and destroying the barricades; moreover, where the claim was by the public over the shiftingsands of a barrier island seldom visited by anyone on a daily basis and particularly during times of bad weather, the use need only be more or less frequent according to the purpose and nature of the easement - to reach the inlet and seashore for fishing and recreational use - that is, often enough and with such regularity as to give the owner notice that the users were asserting a claim of right to use the route. Am Jur 2d, Waters 354, 391. Justice MITCHELL dissenting. ON discretionary review pursuant to N.C.G.S. 7A-31 of a decision of the Court of Appeals, 95 N.C. App. 38, 381 S.E.2d 810 (1989), which affirmed a judgment entered for defendant by Briggs, J., at the 9 November 1987 Civil Session of Superior Court, BRUNSWICK County. Heard in the Supreme Court 12 April1990. Maxwell & Hutson, P.A., by James B. Maxwell, for plaintiff-appellants; and Lacy H. Thornburg, Attorney General, by Daniel F. McLawhorn, Special Deputy Attorney General, and J. Allen Jernigan, Assistant Attorney General, for intervenor-plaintiff-appellant. Murchison, Taylor, Kendrick, Gibson & Davenport, by Vaiden P. Kendrick and Barbara J. Sullivan, for defendant-appellee Holden Beach Enterprises. MEYER, Justice. In this case, we once again face the question of whether there was sufficient evidence of the establishment of an easement byPage 39prescription by the public's use of a pathway along and across the shifting dunes of an area on the Outer Banks of North Carolina. The area in question is privately owned but over the years has been crossed by the public seeking accessto the ocean strand and inlet for fishing and recreation. A portion of the prescriptive easement sought to be established is alleged to be sufficiently similar to a road marled and paved some years later across the same lands such that the public has acquired a right to the use and enjoyment of that paved road. A collateral issue is whether the evidence supported the trial judge's conclusion that, from time to time, defendant had barred public use of the roadway so as to interrupt the continuity of the use over the period of time required to establish an easement by prescription. With regard to the issue of the sufficiency of the evidence of the establishment of an easement by prescription, we conclude that the trial judge employed an erroneous standard inreaching his determination that there was insufficient evidence. We also addressthe collateral issue regarding interruption of the public's continuity of use for the requisite period and conclude that the evidence does not support the trial judge's finding of fact and conclusion of law that defendant had successfully interrupted adverse use by the public so as to defeat the establishment of the easement by prescription. We remand this case for a new trial on the merits employing the proper standard as to the sufficiency of the evidence to establish an easement by prescription. On 13 August 1986, plaintiffs Concerned Citizens of Brunswick County Taxpayers Association and two individuals initiated this action after defendant erected a guardhouse in July 1985 blocking public access over a roadway crossingdefendant's property. Plaintiffs sought to have this roadway declared a publicright-of-way by virtue of prescriptive use. In the alternative, plaintiffs alleged that defendant Holden Beach Enterprises, Inc., or its predecessor in interest, Holden Beach Realty Corporation, had dedicated the roadway to public use. The State of North Carolina, ex rel. S. Thomas Rhodes, Secretary of the Department of Natural Resources and


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NCSU ARE 306 - CONCERNED CITIZENS v. HOLDEN BEACH ENTERPRISES

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