This opinion from the Court of Appeals addresses issues raised in an appeal by the defendant from a District Court judgment determining that an easement by necessity existed because a driveway was not wide enough for the plaintiffs' automobile to traverse it in the dark without risking damage to the mirrors. The Court of Appeals determined that there was competent evidence sufficient to establish each element of plaintiff's easement claims introduced at trial and it affirmed the trial court judgment in favor of the plaintiff.

A prior owner divided property into two adjoining street frontage lots and sold one lot to the defendant and the other to the defendant's mother in 1978. The lot conveyed to the defendant's mother has a concrete driveway providing access for automobiles to the rear of the lot which has been used since the time it was constructed. The lot was ultimately conveyed to the plaintiffs in 2008. The dispute is over a two-foot-wide strip of the concrete driveway, which is located on the defendant's property, where the driveway meets the public right of way. The court thought it significant to note that the use existed for over forty years but not the fact that the use was by the mother of the defendant. The defendant had his property surveyed in 1989 and the survey disclosed the two foot driveway encroachment as well as a chain-link fence at the edge of the concrete.

In 2014, the plaintiff installed a privacy fence in his backyard in close proximity to the parking area behind defendant's home. Subsequently in 2014, the defendant had his property lines surveyed. The survey confirmed that the plaintiff's fence was on plaintiff's property, and also reaffirmed the 1989 survey's disclosure of the concrete driveway encroachment onto the defendant's property. Thereafter, the defendant had the chain-link fence that bordered the concrete driveway moved into the concrete driveway so that it aligned exactly with defendant's property line. The opinion notes that the

"... new location of the fence narrowed the driveway by two feet and made entering and exiting Lot 18 difficult for plaintiff and his guests.

As a result of defendant's relocation of the fence, plaintiff has damaged the mirrors of two of his cars and does not leave the house at night because the fence limits his ability to get out of his driveway. Plaintiff has also contemplated renting his home, but potential renters were dissuaded from renting his property upon seeing the difficulties posed by the fence and the driveway. When plaintiff had a shed built in his backyard, workers had to bring their material in through a neighbor's driveway (with the neighbor's consent), as the workers' truck could not fit in plaintiff's driveway. Although defendant contends he needs the portion of the concrete driveway behind his chain-link fence for parking, prior to this dispute he parked his car in the same spot in front of his home for thirty-nine years, and he also has a carport in the back of his lot that provides additional parking."

After an arbitration award directed the defendant to remove the fence in the driveway, the defendant filed a request for trial de novo and the trial judge concluded that the plaintiff was entitled to an easement under the theories of implied easement by prior use and easement by necessity. The trial court also found defendant's placement of the fence "served no reasonable purpose for the [d]efendant," "constitute[d] a nuisance by the [d]efendant as to the [p]laintiff," and ordered defendant to remove any portion of the fence located within the concrete driveway serving plaintiff's lot.

On appeal, defendant argued that the trial court erred by" (I) granting plaintiff an easement by preexisting use and by necessity over defendant's property; and (II) denying defendant's motion for a new trial." The Court of Appeals weighed whether the following facts as found by the trial court were supported by the evidence:

16. To establish the existence of the easement, which is a two feet portion of the concrete driveway, Plaintiff testified that when he purchased his house in June 2008, he believed he had full use of the concrete driveway based on his understanding of the prior use of this driveway. He understandably believe[d] that the entire concrete driveway was his property and for his use and enjoyment.
17. Plaintiff also provided photographs of his neighbor, the Defendant, erecting a chain link fence on a small portion of the concrete driveway, which was on the actual property line, but limiting Plaintiff's full use of the driveway and causing him concern about trying to access his back yard to park his vehicles.
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24. Prior to in or about August 1978, both Plaintiff's and Defendant's lots had originally been owned by the same land owner, but they were later divided and Defendant's mother lived on one lot (Lot 18) while Defendant lived on the adjacent lot (Lot 1).
25. Per Plaintiff's evidence and Plaintiff's Exhibit 3 (Deed recorded August 2, 1978), the property was severed in August 1978.
26. Defendant testified that the driveway had always been between the two properties and had been used solely as a driveway when his mother resided there. It had no other use. He did not testify to any restrictions on the use of the driveway at any time when his mother lived next to him. It had been used as a driveway for over 40 years or since his mother owned the house.
27. Defendant further testified that he routinely parked on the street when his mother lived next to him. He did this for 39 years. And he has a carport at the back of his house, which is located on a corner lot.
28. During trial, Defendant never testified that he had any need to use his mother's driveway to park his vehicle or otherwise while she resided next door. This allegation came about after Plaintiff moved into his mother's former home.
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31. Prior to the two plots of land being divided in 1978 and at the time that Plaintiff purchased the property in 2008, the expectation was that the driveway would be used in its entirety as a driveway for the house where Plaintiff resides (Lot 18).
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CONCLUSIONS OF LAW
10. The order entered by this Court on March 30, 2015 met the criteria listed above for the finding of an easement implied by prior use and necessity to unencumber property adjacent to Defendant's property.

There are numerous issues presented for property owners going forward by the Court of Appeals deciding that is evidence supports an easement by necessity by prior use.

The court appropriately cites:

"An 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) (citation omitted). An easement is non-possessory and serves only the limited purpose that gives rise to its creation. See id. at 270, 192 S.E.2d at 455 (citation omitted).

To establish an easement implied by prior use, plaintiff[] must prove that: (1) there was a common ownership of the dominant and servient parcels of land and a subsequent transfer separated that ownership, (2) before the transfer, the owner used part of the tract for the benefit of the other part, and that this use was "apparent, continuous and permanent," and (3) the claimed easement is "necessary" to the use and enjoyment of plaintiff['s] land. Metts v. Turner, 149 N.C. App. 844, 849, 561 S.E.2d 345, 348 (2002) (quoting Knott v. Wash. Hous. Auth., 70 N.C. App. 95, 98, 318 S.E.2d 861, 863 (1984)).

"[A]n easement from prior use may be implied to protect the probable expectations of the grantor and grantee that an existing use of part of the land would continue after the transfer." Id. (alteration in original) (quoting Knott, 70 N.C. App. at 98, 318 S.E.2d at 863).

However, it should be obvious that the problem in applying this analysis to the facts of this case is twofold. First, this is a dispute between the successor in interest of one grantee and another grantee - not the grantor and a grantee. Second, the expectations of the grantee are not in evidence - these findings evidence the expectations of the successor in interest, not the mother.

The court's footnote is not on point where it states: "2. It is undisputed that a common owner originally owned Lots 1 and 18 and the property was later severed prior to plaintiff's purchase of Lot 18. Thus, the first element of both theories of easement—implied by prior use and necessity-is not at issue..." because as noted, the grantor did not retain any interest when conveying the subject properties to mother and son and son never granted any rights to mother or her successors.

In North Carolina use of another's property is presumptively by permission. "In establishing the prescriptive easement, the party must overcome the presumption that the party is on the true owner's land with the owner's permission." Pitcock v. Fox, 119 N.C. App. 307, (citing Johnson v. Stanley, 96 N.C. App. 72, 74, 384 S.E.2d 577, 579 (1989) and Dickinson v. Pake, 284 N.C. 576, (1974). In order to overcome this presumption, "[t]here 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." Dickinson, 284 N.C. at 581. A party's "[e]ntitlement to an easement by prescription is restricted because a landowner's '"'mere neighborly act'"' of allowing someone to pass over his property may ultimately operate to deprive the owner of his land." Johnson v. Stanley, 96 N.C. App. 72, 74, 384 S.E.2d 577, 579 (1989) (citation omitted)). Therefore, "mere use alone is presumed to be permissive, and, unless ... rebutted ... will not ripen into a prescriptive easement." Johnson, 96 N.C.App. at 74, 384 S.E.2d at 579 (citing Dickinson v. Pake, 284 N.C. 576, 580-81, 201 S.E.2d 897, 900 (1974)). There are no findings of fact that the mother's use was other than permissive, nor is there any reasonable implication of such.

On the issue of Necessity, the Court of Appeals states:

As with implied easements by necessity, see infra Section 1.B, there is a degree of necessity required in order to imply an easement by prior use. See Smith v. Moore, 254 N.C. 186, 190, 118 S.E.2d 436, 438 (1961). Our Courts have been markedly generous in their definition of what is "necessary" for the beneficial use of land to satisfy the element of necessity. See, e.g., Metts, 149 N.C. App. at 850, 561 S.E.2d at 348–49 (holding that where an alternate road existed, but was never used, the plaintiff was still entitled to an implied easement by prior use); McGee v. McGee, 32 N.C. App. 726, 729, 233 S.E.2d 675, 677 (1977) (holding that where a second route was "unsuitable," the easement was reasonably necessary).

Here, competent evidence was presented by plaintiff which established the concrete driveway including the two-foot easement is reasonably necessary to plaintiff's enjoyment and use of his land. Plaintiff provided photographs and testimony for the court to consider, and specifically testified that without the access to the two feet of the concrete driveway at issue (1) plaintiff and his guests had difficulty entering and exiting his lot, (2) the restriction caused damage to the mirrors on two of his cars; (3) plaintiff does not leave his home at night because the restriction obstructs his view; (4) potential renters of the home on plaintiff's lot were dissuaded from renting the house because of the difficulty posed by the restriction in the driveway; and (5) a serviceman hired could not access plaintiff's home via the restricted driveway and was compelled to use the driveway of a neighbor.

Accordingly, the testimony, exhibits, and photographs sufficiently provided competent evidence for the trial court to find that unobstructed access to the concrete driveway was reasonably necessary, and, in turn, to find and grant an easement implied by prior use.

The problem with this conclusion is that the evidence is pretty much uncontroverted that the driveway, as fenced, can be negotiated with care. Therefore, it is not a matter of necessity, but rather one of convenience. The court has stretched convenience and preference to one of an interpretation of necessity. The real problem is the result, not of the lack of an easement, but rather that the plaintiff did not procure a survey when they purchased the property and did not negotiate an explicit easement for consideration. The court has for all practical purposes taken two feet of the defendant's property and conveyed it to the plaintiff. The Court notes that to establish an easement by necessity, one must show that the easement is essential to the use and enjoyment of the property yet no evidence  suggests that such is the case here, but rather that the two feet enhances the use and value of the property. While the Court discusses the value of the property without the easement as a factor in finding necessity, there is no evidence that the purchase price reflected fair market value with the easement and the value without the easement would have been substantially less.

The concern the opinion presents is that this opinion is likely to generate litigation. Essentially, hereafter it will be practically impossible to obtain summary judgment in a prescriptive easement defense because it will always be relatively easy to craft a complaint conforming to this opinion even if the real purpose is simply to extort concessions from the property owner in order to avoid the high cost of litigation.