IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-709

No. COA21-684

Filed 1 November 2022

Jackson County, No. 15 CVS 511

DEPARTMENT OF TRANSPORTATION, Plaintiff,

v.

MOUNTAIN VILLAGES, LLC; and ENTEGRA BANK, Defendants.

Appeal by Defendant Mountain Villages, LLC, from order entered 28 July 2021

by Judge Jacqueline D. Grant in Jackson County Superior Court. Heard in the Court 

of Appeals 7 June 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General Liliana R. 

Lopez, for Plaintiff-Appellee Department of Transportation.

The Van Winkle Law Firm, by Jonathan H. Dunlap and Jackson Bebber, for 

Defendant-Appellant Mountain Villages, LLC.

COLLINS, Judge.

¶ 1 Defendant Mountain Villages, LLC, appeals from the trial court’s order

determining, inter alia, that Mountain Villages failed to meet its burden of 

establishing that it has acquired a prescriptive easement. We affirm.

I. Background

¶ 2 Plaintiff Department of Transportation (“DOT”) initiated a condemnation 

action on 14 August 2015 in Jackson County Superior Court against Defendants 
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Mountain Villages, LLC,1 and Entegra Bank2 by filing a complaint and Declaration 

of Taking and Notice of Deposit, seeking to acquire a portion of Defendants’ property 

(“subject property”). The subject property is commercial property comprised of retail 

businesses and several residential units. Directly across from the subject property 

was a vacant lot (the “Parking Island”), which was used by Defendants and

Defendants’ customers for parking, and as a general parking area for carpooling by 

other people in the area. Lori Richards, owner and manager of Mountain Villages, 

believed that when she purchased the subject property, she also owned the Parking 

Island and had the right to have customers park on it. However, the Parking Island 

was actually owned by Samuel and Michelle Hopkins. 

¶ 3 Entegra Bank filed its answer on 29 June 2016 and Mountain Villages filed its 

answer on 29 July 2016. Prior to initiating condemnation, DOT negotiated with 

Defendants to acquire the subject property and had the subject property appraised 

by M. Sean Ward. Based on Ward’s determination of just compensation, DOT 

deposited the sum of $393,450 with the Jackson County Superior Court as its 

estimate of just compensation for the taking of the subject property, which included

the Parking Island. 

 

1 Defendant Mountain Villages, LLC, was known as Kokopelli Village, LLC, when it 

purchased the subject property in 2003; Kokopelli Village, LLC, changed its name to 

Mountain Villages, LLC, sometime after 2010.

2 Entegra Bank is not a party on appeal.
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¶ 4 In his appraisal, Ward noted that he valued the subject property “under the 

following extraordinary assumptions:”

The subject property has benefitted from the use of a 

parking area that is owned by the adjacent property owner, 

Mr. Hopkins . . . . As a result of the project, the adjacent 

property utilized as a parking area will no longer be 

available for use by the subject property owner. In this 

instance, I have appraised the subject property under the 

extraordinary assumption that the area utilized for 

parking prior to the project was for use by the subject 

owner under a prescriptive easement. Note that this 

decision was made by the client’s legal advisor, and as a 

result, I have utilized the extraordinary assumption that 

the prescriptive easement is in place as of the date of this 

appraisal. 

Ward further provided that “[i]f any of the noted extraordinary assumptions . . . 

proves to be false, I reserve the right to amend my value estimate(s) and the results 

of this report are null and void.” 

¶ 5 On 11 May 2017, DOT filed a plat “of the land taken and such additional area 

as may be necessary to properly determine the damages,” pursuant to N.C. Gen. Stat. 

§ 136-106(c). On 25 October 2019, Defendants moved for leave to amend their

answers to add counterclaims for inverse condemnation; the trial court allowed the 

amendments by order. In May 2021, Mountain Villages moved the trial court to “hear 

and determine any and all issues raised by the pleadings other than the issue of 

damages,” pursuant to N.C. Gen. Stat. § 136-108 (the “section 108 hearing”). 

Mountain Villages also moved the court to cause DOT “to amend its pleadings to 
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conform to the evidence, deposit with the Court the estimated amount of 

compensation for the additional, inverse, taking, [and] for the recovery of expenses[.]” 

The section 108 hearing took place on 30 June 2021. 

¶ 6 After the hearing, the trial court entered an order on 28 July 2021 granting in 

part and denying in part Mountain Villages’ motion. The trial court concluded, in 

pertinent part, that Mountain Villages “has failed to meet its burden of establishing 

a prescriptive easement” and that a “jury shall determine the just compensation the 

Defendant is entitled to receive for the taking of a portion of their property by [DOT]

as enumerated in the [DOT’s] Complaint and Declaration of Taking.” 

II. Discussion

¶ 7 Mountain Villages argues that the trial court erred by determining that 

Mountain Villages did not have a prescriptive easement over the Parking Island, and 

thus was not entitled to compensation for its taking. 

A. Jurisdiction

¶ 8 The trial court’s order, which determines the title or area taken in this 

condemnation action, is an interlocutory order that affects a substantial right. See 

N.C. Dep’t of Transp. v. Stagecoach Vill., 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005) 

(“[I]nterlocutory orders concerning title or area taken must be immediately appealed 

as ‘vital preliminary issues’ involving substantial rights adversely affected.” 

(citations omitted)). Immediate appeal therefore lies to this Court, pursuant to N.C. 
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Gen. Stat. §§ 1-277(a) and 7A-27(b)(3)(a) & (b). 

B. Standard of Review

¶ 9 Issues under the purview of N.C. Gen. Stat. § 136-108 are decided by a judge 

sitting without a jury. See N.C. Gen. Stat. § 136-108 (2015) (“After the filing of the 

plat, the judge . . . shall . . . hear and determine any and all issues raised by the 

pleadings other than the issue of damages[.]”). “[W]hen the trial court sits without a 

jury, the standard of review on appeal is whether there was competent evidence to 

support the trial court’s findings of fact and whether the conclusions of law were 

proper in light of such facts.” Anthony Marano Co. v. Jones, 165 N.C. App. 266, 

267-68, 598 S.E.2d 393, 395 (2004) (citation omitted). Unchallenged findings of fact 

are binding on appeal. Lab. Corp. of Am. Holdings v. Caccuro, 212 N.C. App. 564, 

567, 712 S.E.2d 696, 699 (2011). “The trial court’s conclusions of law are reviewed de 

novo, wherein this Court considers the matter anew and freely substitutes its own 

judgment for that of the lower tribunal.” Stikeleather Realty & Invs. Co. v. Broadway, 

241 N.C. App. 152, 160, 772 S.E.2d 107, 113 (2015) (quotation marks and citation 

omitted).

C. Analysis

1. Challenged Findings of Fact

¶ 10 Mountain Villages argues that findings of fact 15(e), 15(g), and 19 are 

unsupported by the evidence. 
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a. Finding 15(e)

¶ 11 Finding 15(e) states:

Mr. Day advised Ms. Richards of the fact that [Mountain 

Villages] did not have any ownership interest, easement, 

or legal rights in the Parking Island when he initially met 

with her to discuss compensation for the area of [Mountain 

Villages’] property that would be taken for the 

highway/bridge project.

¶ 12 At trial, the following exchange took place between DOT’s counsel and Jacob 

Day, a right-of-way agent employed with DOT, upon Day’s direct examination:

[Counsel]: So you personally spoke with Ms. Richards?

[Day]: Yes, ma’am.

. . . .

[Day]: I was the agent for this claim.

[Counsel]: The agent, okay. And at any point did you tell 

her that she did not own the parking island?

[Day]: Yes. On the initial contact, when I was explaining 

the project and the impacts to the property, the issue was 

brought up about the parking in the gravel island.

[Counsel]: Who brought that up; do you recall?

[Day]: I did. I brought it up. Because based off of our 

research, when we get a set of plans, there was a severed 

piece of property that was in between these roads that an 

island was created. Well, our plans were unclear about 

ownership, and we got our location and surveys unit to do 

extensive deed research on that. And when they gave us 

their results, it was the Hopkinses that owned the actual 

property. And that had been in their family for years.

[Counsel]: So did your office do that deed research?

[Day]: No. The location survey’s office did that, provided 

that. The Department of Transportation did that.
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[Counsel]: But do you get the results of those deeds?

[Day]: Yes.

[Counsel]: Okay. And you’re stating that the result that 

you received from the location and survey unit is that Mr. 

Hopkins owned that parking island?

[Day]: Correct.

[Counsel]: And you told Ms. Richards this?

[Day]: Yes, ma’am. 

[Counsel]: And what was her reaction?

[Day]: She was surprised. She thought that she had 

ownership of that.

[Counsel]: To your knowledge, does it appear in her chain 

of title that she owns it?

[Day]: Not to my knowledge, no. There was nothing that 

we found in writing that gave her rights to that.

[Counsel]: Have you personally looked through those deeds 

and title work?

[Day]: I have.

[Counsel]: And is it your testimony that you never found in 

her chain of title that she owned that parking island?

[Day]: To the best of my knowledge, we never found it. I 

never found it.

[Counsel]: To the best of your knowledge, was there any 

indication that she perhaps owned an easement to that 

parking island?

[Day]: I never found any legal rights to that.

[Counsel]: And you indicate that you spoke with her in 

2014?

[Day]: Correct.

Additionally, on re-direct, the following exchange took place:
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[Counsel]: I’ve just got a couple quick questions for you. 

And did you explain -- when you told Ms. Richards that she 

didn’t, and I’m using quotes here, own the parking island, 

did you explain the difference in fee simple ownership and 

easements?

[Day]: I tried to convey that, but, yes, you are correct. We 

explained that the Hopkinses owned the actual land that 

she was using. 

[Counsel]: When you say owned, you mean the fee 

ownership, right?

[Day]: It was in their deed, yes. 

¶ 13 This testimony is competent evidence to support the trial court’s finding of fact 

15(e) that Day told Richards that she did not have any ownership interest, easement, 

or legal rights in the Parking Island. 

b. Finding 15(g)

¶ 14 Finding 15(g) states:

When Mr. Day was a student at Western Carolina 

University, he and other students also used the Parking 

Island for parking. He was never told he couldn’t use the 

Parking Island.

¶ 15 It is true that there is no record support for the non-material portion of the

finding that Day “was a student at Western Carolina University.” However, Day did 

testify on direct examination that he used the Parking Island while he was a student

in high school:

[Counsel]: Where are you from?

[Day]: I am from the Sylva area as well.
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[Counsel]: Okay.

[Day]: I lived in Sylva all my life just, basically, five miles 

north of Cullowhee.

[Counsel]: Born and raised in Sylva?

[Day]: Born and raised.

[Counsel]: So are you familiar with this project or, I’m 

sorry, with this property?

[Day]: Yes.

[Counsel]: And the surrounding area?

[Day]: Correct.

[Counsel]: And have you ever used that traffic island 

parking island?

[Day]: I have, yes.

[Counsel]: Okay. How many times have you used it?

[Day]: Oh, a handful of times. It had been a while, but I 

know growing up, in high school, we used to meet there and 

carpool and fish. And I know family members have lived 

in the area, live in Cullowhee, and we would carpool from 

there and friends who have used that area to get out and 

tube down the river.

. . . .

[Counsel]: Have you ever been told by anyone that you 

can’t do that?

[Day]: I personally have not, no.

¶ 16 Day’s testimony supports the substance of finding 15(g) that Day used the 

Parking Island while in school, knew friends and family members who used the 

Parking Island to meet for carpooling, and was never told that he could not use the 

Parking Island. 
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c. Finding 19

¶ 17 Finding 19 states:

There is no evidence that any signs were ever placed on the 

Parking Island indicating that parking was for the 

customers of [Mountain Villages] or any other entity. 

¶ 18 Mountain Villages argues that “everyone who testified at the hearing testified 

that Mountain Villages had signage on the Parking Island” and claims that this 

finding of fact is directly contradicted by Documentary Exhibit 118; Richards’

testimony; and the testimony of Mr. Jeffrey Brown,

3 a civil engineer who testified at 

trial about the parking conditions on the Parking Island. 

¶ 19 Documentary Exhibit 118 is a photograph of a truck parked in the Parking 

Island next to a sign for Suds Your Duds Laundromat. The sign indicates the name 

of the laundromat and its services, and it has an arrow on top pointing across Old 

Cullowhee Road in the direction of the laundromat. The sign contains no language 

about parking. 

¶ 20 Richards testified that there were signs around the Parking Island “to point to 

where the building was, as people came around the corner, so they could see that we 

were there. So kind of advertising.” Richards acknowledged that there was “signage” 

around the Parking Island but did not testify that the signage contained any parking 

 

3 The parties stipulated to Brown’s expertise in civil engineering and his admission as an 

expert witness. 
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information. When asked on cross examination if there was “signage on the Parking 

Island saying that it was for customers only at any point,” Richards responded, “I 

don’t remember” and “We may have. I just can’t remember clearly if we did.” 

¶ 21 Brown testified that, upon examining the Parking Island prior to construction, 

there was “ample parking” directly across from the laundromat and music store. 

Brown further testified that he saw one sign posted on the Parking Island; upon being 

shown Documentary Exhibit 118, Brown explained that the photo exhibit showed “an 

advertisement for the laundromat. It’s their sign.” Brown further explained that 

“[t]here is an arrow leader pointing from the parking area to the laundromat on the 

top [of the sign], and then it says Suds your Duds Laundromat[.]” Brown testified 

that he did not see any other signs for any other business on the Parking Island. 

¶ 22 The Documentary Exhibit 118, Richards’ testimony, and Brown’s testimony

show that the signs did not contain parking information and support finding 19 that 

there is no evidence that signs were ever placed indicating that parking was for 

customers of Mountain Villages’ business. 

¶ 23 This competent record evidence supports the challenged findings of fact 15(e), 

15(g), and 19, and those findings are thus binding on appeal. See Jones, 165 N.C. 

App. at 267-68, 598 S.E.2d at 395. Moreover, as Mountain Villages did not challenge 

any of the remaining findings of fact, the trial court’s remaining findings are also 

binding on appeal. See Lab. Corp. of Am. Holdings, 212 N.C. App. at 567, 712 S.E.2d 
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at 699.

2. Additional Evidence

¶ 24 Mountain Villages argues that the trial court erred by failing to consider the 

following evidence: the estimated sum of just compensation; the affidavit of Mr. Troy 

Burns, a prior owner of the subject property, which was presented in an effort to tack 

his alleged period of adverse possession of the Parking Island to Mountain Villages’ 

alleged period for the required prescriptive period of 20 years; and certain testimony 

and exhibits regarding ownership of the Parking Island and enforcement of the 

parking spaces on the Parking Island. 

a. Estimated Sum of Just Compensation

¶ 25 Mountain Villages argues that the trial court erred by failing to consider the 

sum of money deposited by DOT upon its initiation of the condemnation action as 

that sum speaks directly to the issue of title and interests taken by DOT. This 

argument lacks merit.

¶ 26 When condemnation of land becomes necessary, the DOT shall institute a civil 

action by filing a complaint and a declaration of taking. N.C. Gen. Stat. § 136-103(a) 

(2015). The complaint shall contain “[a] prayer that there be a determination of just 

compensation in accordance with the provisions of this Article.” Id. § 136-103(c)(6) 

(2015). Attached to the declaration shall be “[a] statement of the sum of money 

estimated by said [DOT] to be just compensation for said taking.” Id. § 136-103(b)(5) 
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(2015). “The filing of said complaint and said declaration of taking shall be 

accompanied by the deposit of the sum of money estimated by said [DOT] to be just 

compensation for said taking[.]” Id. § 136-103(d) (2015). “In the event the amount of 

the final judgment is less than the amount deposited . . . , [DOT] shall be entitled to 

recover the excess of the amount of the deposit over the amount of the final judgment 

and court costs incident thereto[.]” N.C. Gen. Stat. § 136-121 (2015).

¶ 27 DOT’s initial deposit was an estimated sum for just compensation. DOT is not 

bound by its estimate; DOT asks for a determination of just compensation in 

accordance with the statute and is entitled to recover any excess of the amount of the 

deposit over the amount of the final judgment. As the deposited sum is not relevant 

to the issue of title and interests taken by DOT, the trial court did not err by failing 

to consider the sum as evidence of Mountain Villages’ interest in the Parking Island. 

b. Burns’ Affidavit

¶ 28 Mountain Villages argues that the trial court erred by failing to consider the 

affidavit of Burns, a prior owner of the subject property. 

¶ 29 “Our Court reviews the trial court’s ruling on the admissibility of affidavits for 

an abuse of discretion.” Supplee v. Miller-Motte Bus. Coll., Inc., 239 N.C. App. 208, 

225, 768 S.E.2d 582, 595 (2015) (quotation marks and citation omitted). 

Furthermore, the “appellant must show not only that the trial court abused its 

discretion in striking an affidavit, but also that prejudice resulted from that error.” 
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Id. at 226, 768 S.E.2d at 596 (quotation marks and citation omitted).

¶ 30 Burns’ affidavit was presented in an effort to tack his alleged period of adverse 

possession of the Parking Island to Mountain Villages’ alleged period of adverse 

possession for the required prescriptive period of 20 years. 

¶ 31 The trial court found as follows:

[Mountain Villages] presented the affidavit of Troy Burns 

during the hearing in an effort to establish privity with the 

prior owner of the subject property so [Mountain Villages]

could tack successive adverse possession of the Parking 

Island in the aggregate for the prescriptive period of 

twenty years. However, the affidavit of Mr. Burns was 

executed one day prior to the hearing. There is no evidence 

that [DOT] was provided notice of [Mountain Villages’] 

intention to use the affidavit or the particulars of the 

affidavit, sufficiently in advance of the hearing so as to 

provide the [DOT] with a fair opportunity to prepare to 

meet the statement.

¶ 32 Here, the trial court apparently excluded Burns’ affidavit because it was 

executed only one day prior to the section 108 hearing, DOT was not given notice of 

the intention to use Burns’ affidavit, and DOT did not have a fair opportunity to 

prepare to meet the statement. Despite moving for the section 108 hearing in May 

2021, Defendant presented Burns’ affidavit for the first time during the hearing. 

Defendant claims that it was unaware DOT was going to contest the prescriptive 

easement. However, the purpose of the section 108 hearing is to “hear and determine 

any and all issues raised by the pleadings other than the issue of damages,” N.C. Gen. 
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Stat. § 136-108 (emphasis added), and the issue of whether Defendant had acquired 

a prescriptive easement to the Parking Island was raised in DOT’s pleadings. 

¶ 33 We cannot say that the trial court’s exclusion of Burns’ affidavit was an abuse 

of discretion. Supplee, 239 N.C. App. at 225, 768 S.E.2d at 595. Moreover, even if

the trial court had abused its discretion in excluding Burns’ affidavit, Defendant has 

failed to show any resulting prejudice. Burns’ affidavit does not show that he owned 

the Parking Island for a length of time over 20 years or that Burns’ use of the Parking 

Island was anything but permissive. See id. at 227, 768 S.E.2d at 597 (concluding

that “even assuming arguendo that the trial court abused its discretion . . . , [the 

plaintiff] has failed to show any resulting prejudice”).

c. Other Evidence

¶ 34 Further, while Mountain Villages has provided examples of evidence that it 

believes should have been included in the trial court’s order, and argues that the trial 

court erred in failing to consider such evidence, we note that the trial court is not 

required to recite all of the evidentiary facts before it. See Tolbert v. Hiatt, 95 N.C. 

App. 380, 385, 382 S.E.2d 453, 456 (1989). “The mere introduction of evidence does 

not entitle the proponent to a finding thereon, since the [trial court] must pass on its 

weight and credibility[.]” See Long v. Long, 71 N.C. App. 405, 407, 322 S.E.2d 427, 

430 (1984) (citation omitted); see also N.C. Gen. Stat. § 1A-1, Rule 52 (2015). 

¶ 35 Here, after making relevant findings as to ownership and use, the trial court 
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concluded that Mountain Villages “failed to present sufficient evidence establishing 

that its use of the Parking Island was not permissive” and that the evidence was 

insufficient to establish either that Mountain Villages sought permission to use the 

Parking Island or that Hopkins ever objected to Mountain Villages’ use of the Parking 

Island. As the trial court made sufficient findings of fact to resolve the ultimate issue 

of whether Mountain Villages met its burden of establishing that it acquired a 

prescriptive easement, it did not need to restate all of the evidence presented. 

Tolbert, 95 N.C. App. at 385, 382 S.E.2d at 456.

3. Challenged Conclusions of Law

¶ 36 Mountain Villages next argues that the findings of fact do not support 

conclusions of law 5 and 7. The challenged conclusions state:

5. [Mountain Villages] has failed to present sufficient 

evidence establishing that its use of the Parking Island was 

not permissive. “Mere permissive use of a way over 

another’s land cannot ripen into an easement by 

prescription no matter how long it continues.” Yadkin 

Valley Land Co. v. Baker, 141 N.C. App. 636, 638, 539 

S.E.2d 685, 688 (2000) (citing Dickinson v. Pake, 284 N.C. 

576, 581, 201 S.E.2d 897, 900 (1974)). “Furthermore, any 

such use is presumed to be permissive unless that 

presumption is rebutted by evidence to the contrary.” Id. 

. . . .

7. [Mountain Villages] failed to present sufficient evidence 

that it made repairs or improvements on the Parking 

Island of such a nature as to put the owner of the Parking 

Island on notice that [Mountain Villages’] use of the 

Parking Island was being made under claim of right. In 
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order to establish a hostile use or that use is being made 

under claim of right, there must be “notice to the true 

owner of the existence of the alleged easement.” Id. [at 640, 

539 S.E.2d at 688.]

Essentially, Mountain Villages argues that the trial court’s findings of fact do not 

support conclusions that Mountain Villages failed to present sufficient evidence that 

its use of the Parking Island was not permissive and was being made under a claim 

of right.

¶ 37 To establish an easement by prescription, a claimant must prove that “(1) the 

use is adverse, hostile or under claim of right; (2) the use has been open and notorious 

such that the true owner had notice of the claim; (3) the use has been continuous and 

uninterrupted for at least twenty years; and (4) there is substantial identity of the 

easement claimed through the prescriptive period.” Yadkin Valley Land Co., L.L.C. 

v. Baker, 141 N.C. App. 636, 639, 539 S.E.2d 685, 688 (2000) (citation omitted). 

“Prescriptive easements are not favored in the law, and the burden is therefore on 

the claiming party to prove every essential element thereof.” Id. (citation omitted). 

“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.” Dickinson v. Pake, 284 N.C. 576, 580, 

201 S.E.2d 897, 900 (1974) (citations omitted). “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.” Id. at 581, 201 S.E.2d at 900 (citation omitted).
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¶ 38 Here, the following findings of fact support the conclusion that Mountain 

Villages failed to prove that its use of the Parking Island was anything other than 

permissive:

7. The subject property is described in Exhibit B as “being 

that tract of land described in a deed dated February 3, 

2003 to Kokopelli Village, LLC (n/k/a Mountain Villages, 

LLC) and recorded February 7, 2003 in Book 1178, Page 

243, Jackson County Registry. . . . Also being that land 

identified as Tax PIN No. 7559-35-9606 as is shown in the 

Jackson County Tax Office”

8. The description of the “area taken” in Exhibit B and the 

“Court Map” of the subject property, generated pursuant to 

N.C. Gen. Stat. § 136-106, compiled on November 9, 2015, 

and filed with the Jackson County Clerk of Court on May 

11, 2017, do[es] not include a description or any 

calculations for what the parties call a “Parking Island” or 

“Traffic Island”, formed by the intersection of Aztec Drive, 

Old Cullowhee Road, and a short connecting road.

9. The “Parking Island” or “Traffic Island” (hereinafter 

“Parking Island”) was owned by Samuel R. Hopkins.

10. Plaintiff DOT acquired a right of way to the “Parking 

Island” from Samuel Hopkins via a “Deed for Highway 

Right of Way”, recorded in the Jackson County Register of 

Deeds on May 26, 2015, Book 2079, Pages 624-627.

11. The DOT Right of Way Unit Review Certification, 

dated December 5, 2014, contains the following language 

in the section entitled “Extraordinary 

Assumptions/Limiting Conditions”:

“The subject property has benefitted from the use of a 

parking area that is owned by the adjacent property 

owner, Mr. Hopkins, and is identified as a portion of 

Jackson County PIN 7559-45-0855. As a result of the 

project, the adjacent property utilized as a parking 

area will no longer be available for use by the subject 
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property owner. In this instance, I have appraised 

the subject property under the extraordinary 

assumption that the area utilized for parking prior 

to the project was for use by the subject owner under 

a prescriptive easement. Note that this decision was 

made by the client’s legal advisor, and as a result, I 

have utilized the extraordinary assumption that the 

prescriptive easement is in place as of the date of this 

appraisal.”

“A portion of the subject’s parking area is a gravel 

area that is un-marked, which makes a calculation 

of actual parking spaces difficult to determine. In 

this instance, the subject property has been appraised 

under the extraordinary assumption that the subject 

had access to a minimum of 18 parking spaces, for 

commercial use only, prior to the proposed project. 

After the project, I have estimated that the subject 

will have access to approximately 7 commercial 

parking spaces.”

12. The DOT Right of Way Unit Review Certification, 

dated October 4, 2017, contains the following language:

“A Key extraordinary assumption is applicable. An 

‘island’ formed by the intersection of Aztec Drive and 

Old Cullowhee Road, and a short connecting road, 

has been used by the owners of the subject property 

for many years as a parking lot. Deed information 

indicates that this property is actually owned by 

[Samuel Hopkins] . . . . However, the NC Attorney’s

General office has determined that a prescriptive 

easement exists, entitling the owner of the subject to 

use of this area. Thus, the analysis is based on the 

extraordinary assumption that the owner of the 

subject property has the right to use this off-site area 

for parking before acquisition of the right-of-way, 

and that this area will be eliminated after 

right-of-way acquisition and construction of the 

proposed road/bridge project.”
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Opinion of the Court

. . . .

16. No deeds or recorded easements were introduced as 

evidence showing a conveyance to [Mountain Villages] of 

any interest in the Parking Island.

17. There is no evidence that permission was ever sought 

by [Mountain Villages] to use the Parking Island or that 

Mr. Hopkins ever consented to or objected to [Mountain 

Villages’] use of the Parking Island.

18. There is no evidence that any signs were ever placed 

on the Parking Island restricting parking to certain guests 

or customers.

. . . .

20. Over the years, the public has used the Parking Island 

for parking and general uses not limited to the businesses 

operated on the subject property.

21. [Mountain Villages] presented the affidavit of Troy 

Burns during the hearing in an effort to establish privity 

with the prior owner of the subject property so [Mountain 

Villages] could tack successive adverse possession of the 

Parking Island in the aggregate for the prescriptive period 

of twenty years. However, the affidavit of Mr. Burns was 

executed one day prior to the hearing. There is no evidence 

that [DOT] was provided notice of [Mountain Villages’] 

intention to use the affidavit or the particulars of the 

affidavit, sufficiently in advance of the hearing so as to 

provide the [DOT] with a fair opportunity to prepare to 

meet the statement.

¶ 39 These findings show that, at a minimum, Mountain Villages failed to establish 

that its use of the Parking Island has been “adverse, hostile or under claim of right”; 

that Mountain Villages’ use of the Parking Island has “been open and notorious such 

that the true owner had notice of the claim”; or that Mountain Villages’ use of the 

Parking Island “has been continuous and uninterrupted for at least twenty years[.]” 
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Yadkin, 141 N.C. App. at 639, 539 S.E.2d at 688. Accordingly, the findings of fact 

support the trial court’s conclusions of law 5 and 7, as well as the trial court’s 

unchallenged conclusion of law 8, which concluded that Mountain Villages “has failed 

to meet its burden of establishing it has acquired a prescriptive easement.”

D. Judicial Estoppel 

¶ 40 Mountain Villages argues that DOT should be judicially estopped from 

claiming that Mountain Villages does not have a prescriptive easement over the 

Parking Island. Mountain Villages asserts that DOT’s pleadings contained a 

statement of just compensation, including compensation for the prescriptive 

easement, and that the pleadings are inconsistent with DOT’s representation at the 

hearing that Mountain Villages did not own the easement. 

¶ 41 Judicial estoppel is an equitable, gap-filling doctrine that “‘seeks to protect 

courts, not litigants, from individuals who would play fast and loose with the judicial 

system,’ and [it] is an inherently flexible and discretionary doctrine.” Beroth Oil 

Company v. N.C. Dep’t of Transp., 256 N.C. App. 401, 417, 808 S.E.2d 488, 501 (2017) 

(quoting Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 26, 591 S.E.2d 870, 887 

(2004)). Because “judicial estoppel protects the courts . . . , a court, even an appellate 

court, may raise judicial estoppel on its own motion.” Old Republic Nat’l Title Ins. 

Co. v. Hartford Fire Ins. Co., 369 N.C. 500, 506-07, 797 S.E.2d 264, 269 (2017) 

(quotation marks, brackets, and citations omitted). 
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¶ 42 Our Supreme Court has enumerated three factors “that typically inform the 

decision whether to apply the doctrine” of judicial estoppel in a particular case:

First, a party’s subsequent position must be clearly 

inconsistent with its earlier position. Second, courts 

regularly inquire whether the party has succeeded in 

persuading a court to accept that party’s earlier position, 

so that judicial acceptance of an inconsistent position in a 

later proceeding might pose a threat to judicial integrity by 

leading to inconsistent court determinations or the 

perception that either the first or second court was misled. 

Third, courts consider whether the party seeking to assert 

an inconsistent position would derive an unfair advantage 

or impose an unfair detriment on the opposing party if not 

estopped. 

Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 28-29, 591 S.E.2d 870, 888-89 

(quotation marks and citations omitted). Our appellate courts have noted that only 

the first factor is essential. See Causey v. Cannon Surety, LLC, 269 N.C. App. 134,

142, 837 S.E.2d 414, 419 (citing Whitacre, 358 N.C. at 29 n.7, 591 S.E.2d at 888 n.7).

¶ 43 First, as explained above in Section C(2)(a), DOT’s estimated sum of just 

compensation is not relevant to the issue of title and interests taken by DOT. DOT’s 

pleadings, which contained the estimated sum of just compensation for the subject 

property and included the prescriptive easement in the estimate under an 

extraordinary assumption, were not inconsistent with its position at the section 108 

hearing that Mountain Villages did not have a prescriptive easement over the 

Parking Island. 
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Opinion of the Court

¶ 44 The doctrine of judicial estoppel is further inapplicable in this case because 

DOT did not take any other subsequent position on a factual issue that was clearly 

inconsistent with its earlier position. See Whitacre, 358 N.C. at 29, 591 S.E.2d at 889. 

The record and exhibit evidence show that DOT’s position has been that, from the 

time of initiation of the condemnation action, the Parking Island was not owned by 

Mountain Villages but was instead owned by the Hopkins. In its pleadings, DOT filed 

a plan sheet that shows the parcels of land around and including the Parking Island. 

The Hopkins are the owners of parcel 6, and the DOT’s plan sheet shows that parcel 

6 includes the Parking Island. DOT also filed a plat with the trial court, as required 

by N.C. Gen. Stat. § 136-106(c), which shows Mountain Villages’ property boundaries 

and outlines the bounds of the areas taken by DOT. The plat does not show the 

Parking Island as part of Mountain Villages’ property and does not indicate that 

Mountain Villages had any ownership interest in the Parking Island. 

III. Conclusion

¶ 45 As there is competent evidence to support the trial court’s findings of fact, and 

the findings of fact support the conclusions of law, the trial court did not err in 

determining that Mountain Villages has failed to meet its burden of establishing that 

it has acquired a prescriptive easement over the Parking Island. The trial court’s 

order is affirmed.

AFFIRMED.
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Opinion of the Court

Judges ARROWOOD and GORE concur.