1. Real Property_Timber and Hunting
Agreement_interpretation_issue of fact
The trial court erred by granting summary judgment for
defendant on the interpretation of a clause in a Timber and
Hunting Agreement where it was unclear from the Agreement as to
how to apply the provisions as to guests and restrictions. These
ambiguities create an issue of material fact for the jury and
thus allow consideration of extrinsic evidence.
2. Real Property_Timber and Hunting Agreement_inability to
acquire permits
The trial court erred by granting summary judgment for
defendant on the interpretation of a Timber and Hunting Agreement
regarding timber rights where the court found that it would be
futile for plaintiff to attempt to obtain the necessary permits
to cut timber, but the Agreement does not contain a futility
provision. Whether plaintiff exercised reasonable efforts to
obtain the necessary permits or whether the timber could be
harvested in an economically and environmentally feasible manner
prior to the expiration date of the timber provision is a
question of fact.
Ward and Smith, P.A., by John M. Martin, for plaintiff-
appellants.
Daughtry, Woodard, Lawrence & Starling, L.L.P., by Luther D.
Starling, Jr. and Kelly Daughtry, for defendant-appellee.
GREENE, Judge.
William A. Crider, Jr. (Crider), Ann Crider (Ann), William
Crider, III (William), Virginia Crider Mock (Virginia), and Cynthia
Crider Jarrell (Cynthia) (collectively, Plaintiffs) appeal a
judgment dated 1 April 1999 granting summary judgment in favor of
The Jones Island Club, Inc. (Defendant) on the issue of Plaintiffs'
hunting rights. Plaintiffs also appeal a judgment filed 18
September 2000 granting summary judgment in favor of Defendant on
the issue of Crider's timber rights.
Crider was the sole general partner of CT Associates, Limited
(CT Associates), a Georgia limited partnership. In 1984, CT
Associates purchased “tracts of land located in the Pamlico Sound
known as Jones Island or Governor's Island” (the Property). Crider,
an avid hunter and “outdoorsman,” primarily purchased the Property
to provide his family and himself with an unrestricted place to
hunt, subject only to the rules and regulations of the state of
North Carolina.
In 1985, L. Stephen Wright (Wright), a director and officer of
The Jones Island Company (the Company),
(See footnote 1)
began negotiations with
Crider to purchase the Property. As a result of the negotiations,
Crider sold the Property to the Company. On 3 September 1985,
Crider, on behalf of CT Associates, and Wright, on behalf of the
Company, entered into a Timber and Hunting Agreement (the Agreement)
as a condition to and as consideration for the sale of the Property. The Agreement provided, in pertinent part:
1. Timber Rights. CT [Associates]
reserves for itself, its successors and
assigns, for a period of ten (10) years
following the date hereof, the right to, and
easements for ingress and egress necessary to,
harvest and remove any and all merchantable
timber and pulpwood located on the Property,
subject, however, to the following conditions:
. . . .
(e) It is understood
that CT
[Associates] has as of the date hereof been
unable to obtain the necessary permits to
harvest the timber and pulpwood from Tracts 20,
21, 22, 33, 34, 35 & 36 . . . . CT [Associates]
shall have ten (10) years from the date said
permits are issued to harvest said pulpwood and
timber, but in any event, said pulpwood and
timber must be harvested on or before August 1,
2005. CT [Associates] shall exercise
reasonable efforts to secure the necessary
permits, and [the Company] will at the request
of CT [Associates] cooperate in the efforts of
CT [Associates] to secure the same. [(1(e))].
2. Hunting. [Crider,] his spouse,
children and guests (not to exceed 4 at any one
time) may hunt on any or all of the Property at
any time and from time to time without
restriction, payment or charge of any kind;
provided however they shall obey all
nondiscriminatory rules and regulations
generally applicable to all persons hunting on
the Property.
. . . .
4. Successors. This Agreement shall
inure to the benefit of and be binding upon the
parties hereto, their heirs, representatives,
successors and assigns.
In 1986, the Company, proceeding with its plan to develop a
hunting club on the Property, formed the Old South Rod and Gun Club
Owner's Association (the Association). The Association's primary
responsibility was to develop hunting club rules. One of the rules
developed by the Association was the “Designated Member Rule” (theDM Rule) which provided “[e]ach membership or unit (33 tot
al) will
be entitled to designate one person on March 1 and/or September 1
of each year, in writing to the Manager, who will become the
'Designated Member' for that membership.” The designated member had
to be present for the membership to be used in any way, including
hunting, fishing, and lodging. With regard to duck hunting, the DM
Rule specifically provided that each designated member was entitled
to one “blind-site” per draw. The drawings for blinds were held
daily at 11:30 a.m. and 7:00 p.m. during duck hunting season.
On 27 March 1985, Crider filed an application with the Division
of Coastal Management (DCM) to obtain “CAMA” permits to construct
logging roads and remove timber from the Property. DCM informed
Crider his application would be denied. Crider requested his
application be placed in a hold posture instead of DCM denying it.
Subsequently, Crider's application for “CAMA” permits was placed on
hold. In January 1986, DCM informed Crider that “a permit was not
going to be issued because of numerous environmental problems.” In
February 1987, Crider's application for “CAMA” permits was placed
in DCM's inactive file. Despite Crider's efforts to obtain “CAMA”
permits, DCM refused to issue the permits because of problems with
wetland issues. After continuing efforts through 1989, Crider's
attorney informed Crider that in his opinion, “further attempts to
procure the necessary permits to log would be extremely expensive
and probably futile.” There were, however, other alternatives
available to Crider for harvesting, removing, and marketing the
timber, but those alternatives were either economically or
environmentally unfeasible. On 5 August 1992, CT Associatestransferred its timber rights to Crider and his heirs. Between 1990
and 1995, Crider and his attorney continued to monitor environmental
regulations to ascertain any possible change in the status of
Crider's application, and Crider's application for “CAMA” permits
remains in a hold status with DCM.
Sometime during the mid-1990's, the Association notified Crider
it “was taking the position that [Crider's] hunting rights were
restricted.” First, Crider could have a total of only four people
hunt on the Property at one time; and second, Crider and his family
were entitled to use only one duck blind per visit. By letter dated
10 February 1997, Louis M. Wade, Jr., President of Defendant,
informed Crider his timber rights had expired and “any attempts by
either [Crider] or anyone on [his] behalf to cut timber located on
[Defendant's] property [would] be considered as an unlawful entry.”
On 21 July 1997, Crider filed a complaint seeking a judgment
declaring: he had the sole right to cut timber on the Property
until 2005; he and his family were not restricted by the DM Rule or
the one-duck-blind-per-day rule; and each member of his family was
entitled to four guests at one time. In an answer and counterclaim
filed 1 October 1997, Defendant denied the allegations of
Plaintiff's complaint and counterclaimed for: a judgment declaring
Defendant had the sole and exclusive right to cut and harvest timber
on the Property; a judgment declaring Crider and his family members
did not have hunting rights individually as contended by Crider; and
a trial by jury on all issues of fact. Defendant and Crider filedcross-motions for summary judgment on 18 and 19 August 1998.
(See footnote 2)
In an
order dated 1 April 1999, the trial court concluded: the agreement
was unambiguous with regard to the hunting rights; Crider's hunting
parties could not be limited to four people; the DM rule and one-
blind-per-day rule were applicable to Crider; and at no time could
Crider have more than one draw or utilize more than one duck blind.
In June 1999, Ann, William, Virginia, and Cynthia (collectively,
Crider's family) filed a complaint seeking a declaratory judgment
to determine their hunting rights pursuant to the Agreement. In a
consent order filed 13 December 1999, the parties agreed to allow
Crider's family to intervene and be joined as parties in the
original action filed by Crider. The consent order also provided
that the 1 April 1999 order was binding on the intervening parties.
On 3 August 2000, Plaintiffs moved the trial court for partial
summary judgment on the issue of whether Crider's timber rights
expired on 3 September 1995. In an order filed 18 September 2000,
the trial court awarded Defendant summary judgment on the issue of
Crider's timber rights, finding that further efforts by Crider to
obtain the necessary permits to cut timber would be “futile.”
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