We observe that an unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority, that citation is disfavored, but the Court of Appeals may permit citation in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. When illustrative of significant real property legal issues, we sometimes also consider it helpful to analyze the reasoning of the opinion.

Appeal by plaintiff from judgment entered 31 December 2018 by Judge Karen Eady-Williams in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 January 2020. James W. Surane and Leslie Rawls, for the plaintiff-Appellant. Martineau King, PLLC, and Wong Fleming, by L. Kristin King and Daniel C. Fleming, for the defendant-Appellee.

This fact driven appeal arose from the plaintiff's legal challenge to the defendant's use of a water drainage system on its property which caused runoff onto the plaintiff's property. The Court of Appeals opined that trial court correctly determined that the defendant is entitled to an easement implied by prior use in the pond located on the plaintiff's property and that the trial court did not err in granting summary judgment in favor of the defendant. It is helpful to describe the relationship of the parities as it works into the result. In 1986, the plaintiff acquired a 100-plus acre undeveloped tract in Mecklenburg County ("the property"). Conbraco Industries, Inc. ("Conbraco") was a grantee in this purchase, but the plaintiff always managed the property. In 1987, the plaintiff and Conbraco conveyed the property to a joint venture between the plaintiff and Conbraco with the plaintiff as the managing member and controlling partner of the joint venture.

Shortly thereafter, the plaintiff subdivided the property, constructed a roadway and began building residential homes. The subdivision created two adjacent parcels separated by the road. The northern parcel ("Magnolia Parcel") subsequently owned by the defendant and the southern parcel ("Belk Parcel") still owned by the plaintiff. In late 1987, the plaintiff dedicated the road to the town, and it was accepted as a public road. In 1988, the plaintiff's construction plans to develop the "Magnolia Plaza" shopping center on the Magnolia Parcel were approved. The planned commercial structures and underground stormwater drainage systems were then built on the Magnolia Parcel and a drainage pond was constructed on the Belk Parcel designed to receive water runoff from land on both sides of the road. The plaintiff had a pipe constructed underneath the road to carry the water that drained from Magnolia Parcel to the pond on the Belk parcel.

In 2012, HEPMAG, LLC ("HEPMAG") purchased Magnolia Parcel from the plaintiff. The opinion reveals that HEPMAG's due diligence included surveying and mapping of the property which did not disclose any "existing or identified easements or reservations of ownership in the right-of-way, or any of the stormwater piping," nor "any record of a private ownership interest in the storm water system underneath [the road] into which the surface stormwater from the Magnolia [Parcel] drains." HEPMAG's redevelopment plans were also approved by the town and county and they did not impact the existing stormwater system outfall which received runoff from the Magnolia Parcel, rather it "maintained the same inlets and the same pipes receiving the stormwater as it had existed in the original development[]." The opinion states that it "is undisputed that the surface water from Magnolia Parcel continued to drain to the underground drainage system and into the public right-of-way in the same manner it did during the plaintiff's ownership of the property." In 2015, HEPMAG conveyed the Magnolia Parcel to the defendant who did not design or construct any improvements on Magnolia Parcel, did not make any changes to the existing shopping center or parking lot areas or alter the surface water management systems.

In 2017, the plaintiff filed this action for trespass, nuisance, and negligence, based on water runoff onto the plaintiff's property from the defendant's shopping center seeking injunctive relief and damages. Both parties moved for summary judgment and the trial court granted the defendant's motion declaring an easement by prior use.

Citing Metts v. Turner, 149 N.C. App. 844 (2002) the opinion notes that in order to establish an easement implied by prior use, one 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 plaintiffs' land.

The plaintiff's testimony was that that from the purchase of the Property in 1986 both parcels always remained under the plaintiff's complete management and control until the sale of the Magnolia Parcel to HEPMAG. Contrary to the plaintiff's argument on appeal, both parcels always remained under the plaintiff's complete management and control. Citing the Restatement (Third) of Property: Servitudes §2.12 cmt. c (2000) the Court of Appeals states: " 'common ownership' does not strictly mean that different parcels were owned by the same exact individuals or entities at the same exact time. See ('If the prior use is made while two or more parcels have some, but not all, owners in common, implication of a servitude depends on the circumstances.')" the opinion, therefore, concluded that there was a common ownership of the dominant and servient parcels of land irrespective of the subsequent transfer that separated that ownership.

The opinion summarizes the evidence of use as follows:

Before the transfer, the plaintiff used the Magnolia Parcel for the benefit of the Belk Parcel, and that use was apparent, continuous, and permanent. The plaintiff constructed the pond on the Belk Parcel in 1988 to drain the surface water from the Magnolia Parcel. The drainage on the property is still used in the same manner today. This use was apparent because it was the plaintiff who had the pond constructed for the purpose of draining the surface water. The use was continuous because the pond has been in use for twenty-five years, and the use was permanent because it was specifically designed to address water runoff from the Magnolia Property. The plaintiff testified that when he originally built the shopping center, it required the use of the pond, this was a part of the plaintiff's planned development, and he contemplated that all the subdivided parcels would use the pond for storm water drainage.

In concluding that the trial court correctly determined that the defendant is entitled to an easement implied by prior use in the pond on the issue of necessity the Court of Appeals observes:

Lastly, the easement is necessary for the use and enjoyment of the land. The easement "is necessary if it is reasonably necessary to the full and fair use of the property." McGee v. McGee, 32 N.C. App. 726, 728, 233 S.E.2d 675, 676 (1977). The defendant's expert engineer stated in an affidavit that the pond is a "critical infrastructure component of the stormwater system for Magnolia Plaza and has been for thirty (30) years," and "[i]f the pond was not in place . . . , there would be a much higher risk of flooding of the residences adjacent to the creek channel downstream." In addition, it would be unreasonable to require the defendant to reconstruct a new drainage system where the current system is fully functional and has existed for nearly three decades.

The evidence shows the pond was under common ownership from 1986 to 2013; the plaintiff began utilizing the pond for the benefit of the Magnolia Parcel in 1988, intended for this use to be permanent, and continued to use the pond in the same manner until he sold the property to HEPMAG; and the continued use of the pond by the defendant is reasonably necessary.

Curiously, after all of the discussion about the pond and the easement, the Court concluded summary judgment was proper because it determined that there are:

...no genuine issues of material fact that precludes summary judgment in favor of the defendant. The plaintiff has made no viable claim against the defendant, because the plaintiff has not shown that he owns the property at issue. The water drains directly into the public system via the pipe, and the pipe belongs to the town. Since there is no evidence that the plaintiff has any ownership in the pipe, there are no genuine issues of material fact. Accordingly, the trial court did not err in granting summary judgment in favor of the defendant.