A motion for JNOV under N.C.R. Civ. At trial, plaintiffs sought to prove that they had acquired an easement by prescription. Prescriptive easements are not favored in the law. We first examine plaintiffs' evidence of adverse use. Plaintiffs acquired the 112 acre farm on 30 August 1978 and filed this action in September 1990.
Defendant asserts that tacking is inappropriate here.
However, even if we assume arguendo, that plaintiffs may tack a prior use in this manner or that plaintiffs acquired whatever easement rights they have by succession, the evidence simply fails to show that the use by Ed Johnson was adverse, hostile, or under claim of right. The testimony at trial tends to show that the use by Ed Johnson was permissive from 1945, when the road was first built, at least until 1978 when plaintiffs acquired their land. James Johnson, Jr. testified that the road was first built by plaintiffs' predecessor in title, Ed Johnson, after defendant's predecessor in title, Sollie Stroud, gave Ed permission to build a road over his land. Testimony of other witnesses also tends to show that Ed used the road with Sollie's permission. Granted, there is evidence that both Ed and the Bogers maintained the road and such evidence can be enough, in some cases, to rebut the presumption that a use is permissive.