stating that because an appurtenant easement "is incidental to the possession of the dominant tenement, every succeeding possessor is entitled to the benefit of it while it continues to exist as such an easement and he remains in possession."
How later courts described this case
- stating that because an appurtenant easement "is incidental to the possession of the dominant tenement, every succeeding possessor is entitled to the benefit of it while it continues to exist as such an easement and he remains in possession."
- recognizing that “successive adverse users in privity with prior adverse users can tack successive adverse possessions of land so as to aggregate the prescriptive period of twenty years.”
- evidence sufficient when family used disputed road as only means of access to their property, plaintiffs neither sought nor obtained permission to use the road, and plaintiffs performed maintenance on the road by raking leaves and scattering oyster shells
- “Tacking is the legal principle whereby successive adverse users in privity with prior adverse users can -6- GONZALEZ V. MARFIONE Opinion of the Court tack successive adverse possessions of land so as to aggregate the prescriptive period of twenty years.”
Written by the judges who cited it.
The opinion
Justice Branch
dissenting.
I am of the opinion that this case is controlled by the case of Henry v. Farlow, 238 N.C. 542 , 78 S.E. 2d 244 . There, plaintiff and her tenants used a roadway across defendant’s land for a period of twenty-five years. Plaintiff did not request permission to use the roadway and defendant landowners voiced no objection to plaintiff’s use of the roadway. This Court held that these facts did not show that the use of the roadway by plaintiff was accompanied by circumstances giving it an adverse character so as to rebut the presumption that the use was permissive:
I do not think that the facts of instant case disclose evidence of adverse or hostile use of the roadway by plaintiffs sufficient to rebut the presumption that the use of the roadway was permissive,
I vote to affirm the opinion of the Court of Appeals.