#### DELIA McCRACKEN and Husband, C. D. McCRACKEN, v. ZEB CLARK and Wife EVA CLARK, GROVER CLARK and Wife CATHERINE CLARK, and RAYMOND McCRACKEN and Wife PEARL McCRACKEN.

(Filed 27 February, 1952.)

1. Trial § 29—

A verdict may not be directed in favor of tbe party upon wbom rests tbe burden of proof.

2. Easements §§ 2, 3—

Where, in an action in trespass, defendants plead adverse user and an easement by implied grant to use tbe roadway across plaintiffs’ land, tbe burden of proving these affirmative defenses is upon defendants and it is error for tbe court to direct a verdict in their favor upon these defenses.

Appeal by plaintiffs from *Budisill, J.,*and a jury, September Term, 1951, of Haywood.

Civil action in trespass to enjoin the defendants from continuing to use a roadway leading from their lands over and across those of the plaintiffs to a public road, and for damages.

The defendants allege by way of affirmative defense that by adverse use of the roadway by themselves and their predecessors in title over a long period of years they have acquired an easement in the roadway, entitling them to use it as a matter of right.

On the issue of prescriptive easement thus raised by the pleadings, the evidence offered in the court below was conflicting. The defendants’ evidence tends to show that the character of the user through the years has been hostile, adverse, and as of right, and so recognized by the plaintiffs and their predecessors in title for near unto a century.

The plaintiffs, on the other hand, offered evidence tending to show that through the years the roadway has been no more than a permissive neighborhood cartway.

*187Issues were submitted to and answered by tbe jury as follows:

“1. Are tbe plaintiffs tbe owners and in possession of tbe land described in tbe complaint? Answer: 'Yes.’ (Ey tbe court in accordance with tbe admissions in tbe defendants’ answer.)

“2. Have tbe defendants acquired an easement in tbe road over said lands entitling tbem to use tbe roadway in controversy without bars or gates or other obstructions thereon ? Answer : ‘Yes.’ ”

Tbe court directed tbe verdict as to tbe second issue by giving tbe following instruction: “Under tbe evidence we have beard, and under tbe law as I understand tbe law to be, I direct you to answer that issue 'Yes.’ ” Tbe plaintiffs’ exception to this directed instruction is brought forward and urged as their chief assignment of error.

From judgment entered on tbe verdict, tbe plaintiffs appealed, assigning errors.

*W. B. Francis and Jojies •& Ward for plaintiffs, appellants.*

*James H. Howell, Jr., Morgan -& Ward, and Glenn W. Brown for defendants, appellees.*

JOHNSON, J.

Tbe trial court erred in directing tbe verdict on tbe second issue. On that issue, tbe burden of proof was upon tbe defendants. This being so, they were not entitled to a directed instruction.

To establish tbe easement claimed by tbe defendants tbe burden of proof was upon tbem to satisfy tbe jury by tbe greater weight of tbe evidence that tbe user relied on was hostile in character, rather than permissive and with tbe owners’ consent. *McPherson v. Williams,*205 N.C. 177, 170 S.E. 662; *Chesson v. Jordan,*224 N.C. 289, p. 292, 29 S.E. 2d 906. “Permissive use is presumed until tbe contrary is made to appear.” *Speight v. Anderson,*226 N.C. 492, p. 497, 39 S.E. 2d 371.

It is established by many authoritative decisions of this Court that a directed instruction in favor of tbe party having tbe burden of proof is forbidden. *Haywood v. Ins. Co.,*218 N.C. 736, 12 S.E. 2d 221, and cases cited.

We have not overlooked tbe defendants’ contention that they acquired an easement by implied grant. As to this phase of tbe case, tbe burden of proof was nonetheless on tbe defendants. 17 Am. Jur., Easements, Sec. 54 (see also sections 32, 33, and 48); *Carmon v. Dick,*170 N.C. 305, 87 S.E. 224; *Ferrell v. Trust Co.,*221 N.C. 432, 20 S.E. 2d 329.

New trial.