N.C.P.I.—Civil 840.10

NOTE WELL: The party claiming the easement bears

the burden of proving the elements essential to the

acquisition of a prescriptive easement.2 In most

cases, the party claiming the easement will be the

plaintiff, but in some cases the easement will be

claimed by the defendant. The names of the parties

should be modified to fit the situation presented by

each case.

The plaintiff may rely upon one of three methods of

satisfying the twenty-year time requirement of the

prescriptive easement:

1. The Plaintiff’s Use: the plaintiff has exercised the

adverse use for the requisite twenty years.

2. Tacking: the plaintiff’s adverse possession, added to

the adverse possession of previous owners in the

plaintiff’s chain of title, equals the requisite twenty

years.3

3. Succession: the twenty-year period of adverse

possession was established by one or more previous

owners in the plaintiff’s chain of title before the

plaintiff became owner of the dominant tract.4

The pattern instruction provides for the alternatives

that may be used.

The (state number) issue reads:

“Has the plaintiff acquired an easement [on] [over] [across] [under]

the land of the defendant by adverse use for a period of twenty years?”

(An easement is a right to make a specific use (or uses) of land

owned by another person.5 A person who has an easement does not own

the land but has only the right to use the land for the purpose(s) of the

easement.6

The owner of the land which is burdened by the easement

continues to have all of the rights of a landowner which are not

inconsistent with the easement.7)

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, four

things:8

First, that [the plaintiff] [the plaintiff and one or more previous

owners in the plaintiff’s chain of title] [one or more previous owners in

the plaintiff’s chain of title] actually used (a portion of) the land of [the

defendant] [the defendant and the defendant’s predecessors in title] [the

defendant or any of the previous owners in the defendant’s chain of title]

for (describe the uses of the land claimed as easement). A mere

intention to claim a right to use the land is not sufficient. Moreover, the

actual use must be substantially within a definite and specific (identify

type of easement claimed, e.g., roadway, drainageway or other type of

easement appropriate to the facts of the case), although there may be

slight deviations over the course of time.9

Second, that the use by [the plaintiff] [the plaintiff and one or

more previous owners in the plaintiff’s chain of title] [one or more

previous owners in the plaintiff’s chain of title] was adverse or hostile to

[the defendant] [the defendant and the defendant’s predecessors in title]

[the defendant or any of the previous owners in the defendant’s chain of

title].10 Mere use of the land is not sufficient. Every use of land is

presumed to be by permission of the owner until it is proved that the

user intended to claim the use of the land as a matter of right.11 To

establish that the use is adverse or hostile rather than permissive, it is

not necessary to show that there was a heated controversy, or ill will or

that [the plaintiff] [the plaintiff and one or more previous owners in the

plaintiff’s chain of title] [one or more previous owners in the plaintiff’s

chain of title] [was] [were] in any sense the enemy of [the defendant]

[the defendant and the defendant’s predecessors in title] [the defendant

or any of the previous owners in the defendant’s chain of title]. An

adverse use is a use of such nature as to put others on notice that [the

plaintiff] [the plaintiff and one or more previous owners in the plaintiff’s

chain of title] [one or more previous owners in the plaintiff’s chain of

title] claim(s) the right to use the land.

(If [the plaintiff] [the plaintiff or one or more previous owners in

the plaintiff’s chain of title] [one or more previous owners in the

plaintiff’s chain of title] originally began using the land with the express

permission of [the defendant] [the defendant and the defendant’s

predecessors in title] [the defendant or any of the previous owners in the

defendant’s chain of title], the use would not become adverse unless and

until [the plaintiff] [the plaintiff or one or more previous owners in the

plaintiff’s chain of title] [one or more previous owners in the plaintiff’s

chain of title] rejects the permission and made [the defendant] [the

defendant and the defendant’s predecessors in title] [the defendant or

any of the previous owners in the defendant’s chain of title] aware either

by words or conduct that the permission was rejected and the use was

claimed as a matter of right.)12

Third, that the use by [the plaintiff] [the plaintiff and one or more

previous owners in the plaintiff’s chain of title] [one or more previous

owners in the plaintiff’s chain of title] was open and notorious. This

means either that the owner of the land must actually know of the

adverse use or that the use must have been so open, visible and well

known that a landowner would know of the use if the owner had the same

familiarity with the land that an ordinary owner normally would have. The

use by [the plaintiff] [the plaintiff and one or more previous owners in

the plaintiff’s chain of title] [one or more previous owners in the

plaintiff’s chain of title] must be of such a nature that anyone in the

community, including the owner, knows, or by observing could know, that

[the plaintiff] [the plaintiff and one or more previous owners in the

plaintiff’s chain of title] [one or more previous owners in the plaintiff’s

chain of title] was using the land as if the plaintiff had a right to do so

and was not merely a temporary or occasional trespasser.

And Fourth, that the use by [the plaintiff] [the plaintiff and one or

more previous owners in the plaintiff’s chain of title] [one or more

previous owners in the plaintiff’s chain of title] was continuous and

uninterrupted for at least twenty years. To be continuous it is not

necessary that the use be constant or unceasing. It is sufficient that

[the plaintiff] [the plaintiff and one or more previous owners in the

plaintiff’s chain of title] [one or more previous owners in the plaintiff’s

chain of title] [use] [used] the (identify type of easement claimed, e.g.,

roadway, drainageway or other type of easement appropriate to the facts

of the case) consistently and with sufficient regularity under all the

circumstances to constitute notice to the owner that [the plaintiff] [the

plaintiff and one or more previous owners in the plaintiff’s chain of title]

[one or more previous owners in the plaintiff’s chain of title] [was] [were]

[has been] [had been] asserting a right. The regularity required is that

the use be as frequent as would be consistent with the purpose and the

nature of the use claimed by [the plaintiff] [the plaintiff and one or more

previous owners in the plaintiff’s chain of title] [one or more previous

owners in the plaintiff’s chain of title]. To be uninterrupted means that

[the defendant] [the defendant and the defendant’s predecessors in title]

[the defendant or any of the previous owners in the defendant’s chain of

title] [has] [have] not prevented the use by [the plaintiff] [the plaintiff

and one or more previous owners in the plaintiff’s chain of title] [one or

more previous owners in the plaintiff’s chain of title] [physically] [by a

lawsuit] [(state other interruptions shown by the evidence)].

Finally, as to the (state number) issue on which the plaintiff has

the burden of proof, if you find by the greater weight of the evidence

that [the plaintiff] [the plaintiff and one or more previous owners in the

plaintiff’s chain of title] [one or more previous owners in the plaintiff’s

chain of title] actually used (a portion of) the land of [the defendant]

[the defendant and the defendant’s predecessors in title] [the defendant

or any of the previous owners in the defendant’s chain of title] for

(describe the uses of the land claimed as easement), that the use by

[the plaintiff] [the plaintiff and one or more previous owners in the

plaintiff’s chain of title] [one or more previous owners in the plaintiff’s

chain of title] was adverse or hostile to [the defendant] [the defendant

and the defendant’s predecessors in title] [the defendant or any of the

previous owners in the defendant’s chain of title], that the use by [the

plaintiff] [the plaintiff and one or more previous owners in the plaintiff’s

chain of title] [one or more previous owners in the plaintiff’s chain of

title] was open and notorious, and that the use by [the plaintiff] [the

plaintiff and one or more previous owners in the plaintiff’s chain of title]

[one or more previous owners in the plaintiff’s chain of title] was

continuous and uninterrupted for at least twenty years, then it would be

your duty to answer this issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.