In an action for ongoing trespass, does a landowner need to be in possession of subject property at the time of the original trespass?
Graham v. Deutsche Bank Nat’l Trust Co.
Plaintiff Graham and Deutsche Bank owned adjoining lots, and discovered by survey that portions of Deutsche Bank’s lot’s house and sewage system partially encroached on Graham’s lot. Graham took possession of her lot after the subject house and septic system were partially constructed on her lot. Graham filed a complaint alleging trespass, and Deutsche Bank counter-claimed, seeking to reform its deed and quiet title. Graham and Deutsche Bank filed a joint motion for summary judgment, on which the superior court ruled in favor of Graham. Deutsche Bank appealed, and in a July 1, 2014 opinion, the Court of Appeals reversed the superior court, remanding for entry of summary judgment in favor of Deutsche Bank. The Court then granted Graham’s petition for rehearing, and affirms the superior court in this opinion.
To establish a claim for trespass to real property, a claimant must show that they possessed the property when the alleged trespass was committed, that there was an unauthorized entry by the other party, which resulted in damage to the plaintiff.
As the Court of Appeals noted here, it relied upon Woodring v. Swieter, 637 S.E.2d 269 (N.C. Ct. App. 2006), in its original opinion to conclude that a landowner must have been in possession of the subject property on the date “when the original trespass was committed.” As a result, the Court’s first opinion held that Deutsche Bank was entitled to summary judgment, because Graham was not in possession when Deutsche Bank’s unauthorized entry upon the property began.
However, the Court of Appeals in this opinion on rehearing concluded that in cases of ongoing trespass, the defendant’s maintenance of a structure upon the plain-tiff’s property “is a separate and independent trespass” each day it remains on the plaintiff’s property, citing Bishop v. Reinhold, 311 S.E.2d 298 (N.C. Ct. App. 1984).
The Court also noted that North Carolina Supreme Court authority supported its conclusion, citing Caveness v. Charlotte, Raleigh & S. R.R. Co., 90 S.E. 244 (1916). Using these authorities, the Court concluded that its prior holding, and the applicable portions of Woodring, supra, did not control.
The Court also dismissed Deutsche Bank’s argument that Graham could not establish a claim for trespass for failure to show that Deutsche Bank, rather than its predecessor in interest, committed the unauthorized entry. The Court noted that because Deutsche Bank maintained the structure upon Graham’s property, there was a continuing trespass which could be asserted against Deutsche Bank.