N.C.P.I.—Civil 840.20

The (state number) issue reads:

“Does the plaintiff1 have an easement [of] [for] (specify the nature

of the easement)2 [on] [over] [across] [under] the land of the

defendant?”3

(An easement is a right to make (a) specific use(s) of land owned

by another.4 One 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. 5 The

use of the easement must be reasonable. The owner of land burdened by

an easement continues to have all of the rights of a landowner which are

not inconsistent with the easement.)6

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,7 four

things:

First, that the parcel of land now owned by the plaintiff and the

parcel of land now owned by the defendant were at one time owned by

the same8 [person] [entity], that is, that both parcels of land had a

common owner.9 (It is not necessary for either the plaintiff or the

defendant to have been the earlier common owner.10)

Second, that during the time of this ownership, the common owner

of the two parcels of land used (describe the easement claimed) [on]

[over] [across] [under] the land which is now owned by the defendant for

the benefit of the land now owned by the plaintiff.

Third, that the common owner's use of the land now owned by the

defendant for the benefit of the land now owned by the plaintiff occurred

over so long a time and was so continuous and obvious as to indicate

that the use was intended to be permanent.11 That is, the conduct of the

common owner must have been such as to create a reasonable belief that

the use of the land was intended to continue permanently and that when

the land now owned by the plaintiff was separated from the land now

owned by the defendant, the common owner intended to [grant] [retain]12

the continued right to use the land as it had been used.

And Fourth, that the existence of the easement claimed by the

plaintiff is 13 [reasonably]14 [strictly]15 necessary to the beneficial

enjoyment of the land owned by the plaintiff.

[A use is “reasonably necessary” when the plaintiff's full and

comfortable enjoyment16 of the land depends on it.]17

[A use is “strictly necessary” when it is absolutely necessary to the

plaintiff's full enjoyment18 of the land.]

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 parcel of land now owned by the plaintiff and the parcel of land now

owned by the defendant had an earlier common owner, that the common

owner of the two parcels of land used (describe the easement claimed)

[on] [over] [across] [under] the land which is now owned by the

defendant for the benefit of the land now owned by the plaintiff, that the

common owner's use of the land now owned by the defendant for the

benefit of the land now owned by the plaintiff occurred over so long a

time and was so continuous and obvious as to indicate that the use was

intended to be permanent, and that the existence of the easement

claimed by the plaintiff is [reasonably] [strictly] necessary to the

beneficial enjoyment of the land owned by the plaintiff, 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.