1. Easements--subdivision plat--”public easement”--improper use of extrinsic evidence
The trial court erred by using extrinsic evidence to determine the grantor's intent in
creating a “public easement” on a recorded subdivision plat without first determining whether
this intent could be ascertained from within the four corners of the plat.
2. Easements--subdivision plat--”public easement”--use for sewer line precluded
The term “public easement” on a recorded subdivision plat unambiguously precluded use
of the easement for a sanitary sewer line to serve adjacent property where the plat also contained
a “sanitary sewer easement” on another portion of the subdivision, since the plat itself indicates
that there is a difference between the two types of easements.
Judge GREENE dissenting. Appeal by certain defendants from judgment entered 24
October 1997 by Judge Gordon Battle in Orange County Superior
Court. Heard in the Court of Appeals 27 October 1998.
Northen Blue, LLP, by David M. Rooks, III, for plaintiff-
appellee.
Beemer, Savery & Hadler, PA, by Mary Elizabeth Jones, for
appellants Dahners, Kitson, Sherman, and Burrill.
LEWIS, Judge.
Plaintiff acquired an undeveloped tract south of the Morgan
Creek Hills subdivision in Chapel Hill and wished to use the
"public easement" on a portion of the Morgan Creek Hills property
for the installation of a sanitary sewer line to service the
development of this tract. This "public easement" was
denominated as such in a plat recorded on 7 October 1966 in the
Orange County Registry, titled "Final Plat Section One of Morgan
Creek Hills Subdivision." The easement was one of two running
along the outer edges of the subdivision that were labeled on the
plat, the other being a "sanitary sewer easement" on the northern
portion of the property.
Plaintiff filed an amended complaint for declaratory
judgment on 9 January 1997, seeking "a declaration by the [trial
court] that the 'Public Easement' shown on the plat recorded atPlat Book 15, Page 119, Orange County Registry is an offer of
dedication of an easement for public use which OWASA [(Orange
Water and Sewer Authority)] might accept pursuant to its
statutory authority." On 3 September 1997, the trial court
ordered the case placed on the trial calendar for the term
commencing 20 October 1997. Plaintiff filed a motion for summary
judgment on 4 September, with a notice of hearing on the motion
set for 20 October. On 20 October, the trial court conducted a
non-jury trial with the parties' consent and made findings of
fact and conclusions of law in favor of plaintiff. From this
judgment, defendants Dahners, Kitson, Sherman, and Burrill
appeal.
[1]Among appellants' six arguments, we need address only
those regarding the trial court's use of the evidence to
determine the scope of the "public easement" on the plat. In
making its findings of fact, the trial court relied on the public
records in evidence to find that: the preliminary plat submitted
to the Town showed a thirty-foot wide storm and sanitary sewer
easement which is the subject of this proceeding; the Chapel Hill
Board of Aldermen approved the preliminary plat at its meeting of
12 September 1966 with the stipulation that the easement in
question also be designated as a public right-of-way; the town
manager erroneously notified the developer of the Morgan CreekHills subdivision that the preliminary plat had been approved
with conditions including a requirement that the "[e]asements
shown on the plan as storm and sanitary sewer easements should be
shown as public easements in accordance with the preliminary plan
[sic]"; and, because of this error, the plat that was recorded by
the developer described the easement at issue as a public
easement and not a storm and sanitary sewer easement with public
right-of-way, as the Board of Aldermen actually required. With
only the town's records available as evidence at trial and no
testimony from the grantor other than the printed plat, the trial
court then concluded that "Morgan Creek Hills [sic] Land Company
intended the recording of the Plat to be an offer of dedication
of the Easement described on the Plat as a public easement for
acceptance as a sanitary sewer easement." At no point in its
judgment, however, did the trial court determine whether the term
"public easement" was ambiguous. To use extrinsic evidence to
determine the grantor's intent without first determining whether
this intent could be ascertained from within the four corners of
the plat constitutes reversible error, as will be set out below.
Appellants argue that in determining the purpose and extent
of an easement, the trial court should be guided by the method
provided in our case law:
First, the scope of an express easement is controlled by the terms of the conveyance if
the conveyance is precise as to this issue.
Second, if the conveyance speaks to the scope
of the easement in less than precise terms
(i.e., it is ambiguous), the scope may be
determined by reference to the attendant
circumstances, the situation of the parties,
and by the acts of the parties in the use of
the easement immediately following the grant.
Third, if the conveyance is silent as to the
scope of the easement, extrinsic evidence is
inadmissible as to the scope or extent of the
easement. However, in this latter situation,
a reasonable use is implied.
Swaim v. Simpson, 120 N.C. App. 863, 864, 463 S.E.2d 785, 786-87
(1995) (quoting I Patrick K. Hetrick & James B. McLaughlin, Jr.,
Webster's Real Estate Law in North Carolina, § 15-21 (4th ed.
1994)), aff'd per curiam, 343 N.C. 298, 469 S.E.2d 553 (1996).
We agree with appellants and their assertion that the trial court
did not properly follow these steps.
[2]In this action, the trial court proceeded to the second
step of the analysis above and considered attendant circumstances
without first determining if the conveyance itself, the plat, was
precise in its terms. "When the language . . . is clear and
unambiguous, effect must be given to its terms, and the court,
under the guise of constructions, cannot reject what the parties
inserted or insert what the parties elected to omit."
Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 719, 127 S.E.2d 539,
541 (1962). Here, the language of the final plat clearly and unambiguously indicated that the Morgan Creek Land Company wished
to create a "sanitary sewer easement" on the northern portion of
the subdivision and a "public easement" on the southern side of
the property. Had the developer's chosen terms been "less than
precise," the court could have considered attendant
circumstances, as well as the manner in which the easement has
been used since the time of its dedication. Swaim, 120 N.C. App.
at 864, 463 S.E.2d at 786. Even then, it would seem difficult to
ascertain the grantor's intent in creating the "public easement"
by examining only the town's requests to the grantor and ignoring
the plain language of what the grantor provided and the town
approved in return. The plat and the dedication therein were
recorded in 1966 and apparently have since been unchallenged
until now.
Plaintiff cited no cases or statutes and presented no
evidence at trial or on appeal to indicate that, from a legal
perspective, the phrase "public easement" is so ambiguous as to
require judicial interpretation. Plaintiff did not argue that a
private developer's use of a public easement to service an
adjacent subdivision is an appropriate public use of such an
easement. At no point during the trial or appeal did plaintiff
present a theory under N.C. Gen. Stat. § 136-96 (1993) that it
has a right to at least part of the easement as the owner of adjacent land because the easement was not "actually opened and
used by the public within 15 years from and after the
dedication," and was created by a corporation which is no longer
in existence. Essentially, its only argument was that an error
occurred behind the scenes, and that an examination of evidence
other than the plat itself will explain why this public easement
is in fact a sanitary sewer easement.
Plaintiff cites this Court's decision in Sampson v. City of
Greensboro, 35 N.C. App. 148, 240 S.E.2d 502 (1978), to support
the notion that this "public easement" should be converted into a
sanitary sewer easement. In that case, a plat contained a signed
certificate stating, "The undersigned hereby acknowledge this
plat and allotment to be _______ free act and deed and hereby
dedicate to public use as streets, playgrounds, parks, open
spaces, and easements forever all areas so shown or indicated on
said plat." Id. at 149, 240 S.E.2d at 503. The defendant city
sought to install a sanitary sewer along the easement, and
plaintiffs argued that if the property had been properly
dedicated (which they claimed it had not), the easement was
intended to be for a storm sewer and not a sanitary sewer. Both
the trial court and this Court ruled in defendant's favor.
The facts of Sampson clearly are distinguishable from the
situation before us now. First, the conversion of a storm sewer easement to a sanitary sewer easement requires a much smaller
inferential leap than does the conversion of a public easement to
a sanitary sewer easement, as the plaintiff here sought.
Furthermore, it is much more difficult for a private developer to
argue that he is providing a public use, as permitted by the
language of the dedication, than it is for a city or other
government entity. "A public use is a use by and for the
government and the general public, not for particular individuals
or estates." City of Statesville v. Roth, 77 N.C. App. 803, 807,
336 S.E.2d 142, 144 (1985). Finally, and of great significance
to plaintiff's case here, a Greensboro ordinance cited in Sampson
at 150, 240 S.E.2d at 503, stated:
All property shown on the plat as dedicated
for a public use shall be deemed to be
dedicated for any other public use authorized
by the city charter or any general, local, or
special law pertaining to the city when such
other use is approved by the city council in
the public interest.
Plaintiff has made us aware of no ordinance in Chapel Hill that
would permit what was clearly dedicated as a public easement to
be transformed into a sewer easement to service a private
developer's adjacent tract of land.
There is at least one similarity between these facts and
those in Sampson, and that is the presence of dedicatory language
on the plat itself. In this case, the relevant language reads as follows: "Know all men by these presents, that we hereby
acknowledge this plat and allotment to be our free act and deed
and that we do hereby dedicate to public use as streets and
easements forever all areas as shown on said plat." Below this
statement appear the signatures of the vice president of,
presumably, the developer's company; the town manager; the
chairman of the planning board; and the town clerk. It is
unclear why the town would express in writing its assent to the
plat as drawn and allow the public easement to remain in an
incorrect form for over thirty years if it were labeled
improperly by the developer.
The plain language of the Morgan Creek Hills plat shows a
sanitary sewer easement on the northern portion of the property
and a public easement on the southern portion. This indicates
that there is a difference between the two types of easements,
and because there is such a distinction on the plat itself, there
is no reason to consider the term "public easement" as embracing
"sanitary sewer easement." As such, there was no ambiguity to
warrant the trial court's examination of any extrinsic evidence
to determine the grantor's intent. We are not asked, and do not
attempt, to specifically enumerate those things that can or
cannot go under, through, upon or above a public easement. We
limit our holding to the facts before us in this case, where it seems clear from the language of the plat that sanitary sewer
lines may be installed on a "sanitary sewer easement" but not for
these purposes on a "public easement." Because we consider this
plat to show an unambiguous grant of a public easement on the
southern portion of the Morgan Creek Hills subdivision, and
because the interpretation of an unambiguous easement is a
question of law requiring no examination of extrinsic evidence,
see Leonard v. Pugh, 86 N.C. App. 207, 210, 356 S.E.2d 812, 814
(1987), we reverse the trial court's holding in favor of
plaintiff.
Reversed.
Judge HORTON concurs.
Judge GREENE dissents.
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