LORRAINE KEENER, WILLIAM McMILLEN and wife, MILDRED McMILLEN, FRED
FORSYTH and wife, TEDDY FORSYTH, FRANK DAWSON and wife, PENELOPE L.
DAWSON, JIMMY GOODMAN, and JANE MOORE, Plaintiffs, v. WILLIAM
ARNOLD and wife, SHARON ARNOLD, Defendants
NO. COA02-1445
Filed: 16 December 2003
1. Appeal and Error_appealability_order to remove structures_partial summary
judgment
A partial summary judgment ordering the removal of substantial structures from real property
affects a substantial right and may be immediately appealed.
2. Easements_by grant_width not defined_space reasonably needed_issue of fact
Summary judgment should not have been granted for plaintiffs on the issue of whether they
had an easement by grant over an area used for boating, swimming, and fishing. The width of the
easement was not defined and there was an issue of fact about the space needed to effectuate the
easement's purpose.
3. Easements_by prescription_active and hostile use_issue of fact
Summary judgment should not have been granted for plaintiffs on the issue of whether they
had an easement by prescription over an area used for boating, swimming, and fishing. There were
issues of fact about whether the disputed land was actively used and whether the use was hostile.
Appeal by defendants from order filed 17 April 2002 by Judge
Samuel G. Grimes in Washington County District Court. Heard in the
Court of Appeals 28 August 2003.
Davis & Davis, by Geo. Thomas Davis, Jr., for plaintiff-
appellees.
Manning Fulton & Skinner, by William C. Smith, Jr. and Evan B.
Horwitz; and Edward J. Harper, II, for defendant-appellants.
BRYANT, Judge.
William Arnold and Sharon Arnold (collectively defendants)appeal an order filed 17 April 2002 granting partial summary
judgment to Lorraine Keener, William and Mildred McMillen, Fred and
Teddy Forsyth, Frank and Penelope L. Dawson, Jimmy Goodman, and
Jane Moore (collectively plaintiffs) and requiring defendants to
remove a bulkhead, a pier, and stobs placed on an 81-foot-long
parcel of land (disputed area) owned by defendants in Washington
County, North Carolina. (See illustration.)
On 5 November 1999, plaintiffs filed a complaint alleging they
had an easement by grant or by prescription over a parcel of land
bounded on the north by the waters of the Albemarle Sound, on the
east by the lot of plaintiffs Dawsons, on the south by Arnold Beach
Drive, and on the west by the lot of plaintiff Goodman, and that
defendants interfered with the easement through the construction of
a bulkhead, a pier and stobs, and other acts.
Plaintiffs are owners of lots in or adjacent to the Arnolds
Beach Subdivision in Washington County. The subdivision was once
owned by Mr. and Mrs. E. O. Arnold (original grantors). From 1962
to 1976, the original grantors granted an easement to some
plaintiffs' predecessors in title.
(See footnote 1)
The 1962 deed to the
predecessor in title of plaintiff Goodman has the following
relevant language:
The parties of the first part haveconstructed a ramp between Lot No. 6 of the
foregoing subdivision and the lot of Carl
Stanfield [a predecessor in title of plaintiff
Goodman], and that the second party may have
the same use of said ramp for fishing and
bathing, and the launching of his boats, so
long as the said ramp is maintained by the
[original grantors], but the foregoing use of
the same is limited to the family of the party
of the second part.
Lot No. 6 is next to and to the east of the lot of plaintiffs
Dawsons.
The 1962 and 1967 deeds to the predecessors in title of
plaintiffs Moore and McMillens do not mention the ramp.
The 1964 and 1968
(See footnote 2)
deeds to the predecessors in title of
plaintiffs Keener and Forsyths have the following relevant
language:
The parties of the first part have
constructed a ramp between Lot No. 6 of the
foregoing subdivision and the lot of Carl
Stanfield, and that the second party may have
the same use of said ramp for fishing and
bathing, and the launching of . . . boats, for
that the said ramp was constructed for the use
and enjoyment of the owners of the lots
contained in the foregoing subdivision,
forever.
The 1976 deed to the predecessor in title of plaintiffs
Dawsons has the following relevant language:
[T]he parties of the first part do grant and
convey unto the party of the second part, the
right to use the boat ramp and picnic arealeading from Arnold Beach Road to Albemarle
Sound and lying between the lot of Jennie
Arnold and the lot now or formerly owned by
Carl Stanfield.
Plaintiffs' supporting affidavits indicate plaintiffs, their
predecessors in title, and others in the community had used the
easement for many years for launching boats, swimming, fishing,
picnicking, and recreation. The affidavits also state plaintiffs
and others in the community mowed and maintained the waterfront
areas subject to the easement.
In their brief to this Court, defendants denied the existence
of an easement over an 81-foot-long property adjacent to and east
of plaintiff Goodman's lot. However, defendants concede plaintiffs
have an easement over the 125-foot-long property located between
the disputed area and the lot of plaintiffs Dawsons.
(See footnote 3)
Defendants'
affidavits state that defendants purchased the disputed area in
1994. After the purchase, defendants cleaned up the debris and
constructed a bulkhead and a pier on the disputed area. Defendants
observed nobody had used the disputed area, though occasionally
some walked on it.
Plaintiffs moved for summary judgment. The trial court
granted plaintiffs' motion as to liability and ordered defendants
to remove the structures in the disputed area but reserved rulingon the issue of money damages.
________________________
The issue on appeal is whether the evidence undisputedly shows
plaintiffs have an easement by grant or by prescription over the
disputed land.
[1] A partial summary judgment on the issue of liability alone
is interlocutory. N.C.G.S. § 1A-1, Rule 56(c) (2001). However,
such an interlocutory judgment is immediately appealable if it
affects a substantial right of the appealing party if the appeal is
delayed.
Development Corp. v. James, 300 N.C. 631, 635, 268 S.E.2d
205, 209 (1980);
Liggett Group v. Sunas, 113 N.C. App. 19, 23-24,
437 S.E.2d 674, 677 (1993). In the instant case, we hold that
ordering the removal of substantial structures from real property
affects defendants' substantial right, and therefore, the partial
summary judgment is immediately appealable.
Development Corp., 300
N.C. at 636, 268 S.E.2d at 209 (mandatory injunction ordering the
removal of concrete anchors placed on the plaintiffs' submerged
lands affected the defendants' substantial right and was thus
immediately appealable).
[2] Defendants argue factual issues exist as to whether
plaintiffs have an easement by grant or by prescription over the
disputed area and thus the trial court erred in granting
plaintiffs' motion for summary judgment. We agree.
Easement by grant
Deeds of easement are construed according to
the rules of construction of contract so as to
ascertain the intention of the parties as
gathered from the entire instrument at the
time it was created. . . . “[W]hen an
easement is created by express conveyance and
the conveyance is 'perfectly precise' as to
the extent of the easement, the terms of the
conveyance control.”
. . . .
. . . [W]hen the width of an easement is
not specifically defined in the grant, . . .
then the “previously undefined width is then
established by the rule of reasonable
enjoyment.” Under the doctrine of reasonable
enjoyment, the width of an undefined easement
is determined by considering the purpose of
the easement and establishing a width
necessary to effectuate that purpose.
Intermount Distrib'n, Inc. v. Public Serv. Co. of N.C. Inc., 150
N.C. App. 539, 542, 563 S.E.2d 626, 629 (2002) (quoting
Williams v.
Abernethy, 102 N.C. App. 462, 464-65, 402 S.E.2d 438, 440 (1991)
and
Sunnyside Valley Irrigation District v. Dickie, 43 P.3d 1277,
1281 (Wash. Ct. App. 2002),
aff'd, 73 P.3d 369, 376 (Wash. 2003)).
In
Intermount, the plaintiff acquired title to land that was
subject to an easement granted in 1955 in favor of the defendant.
Id. at 539, 563 S.E.2d at 627. The easement agreement did not
specify the width of the easement, but permitted the defendant “to
maintain, construct, replace, change the size of, or lay one or
more pipelines across the property for the transportation of
natural gas and other materials that may be transported through apipeline.” Shortly after obtaining the easement, the defendant
laid an eight-inch-diameter gas pipeline across the land. In 1997,
the defendant began to construct a second pipeline across the land.
The plaintiff disputed the defendant's right to do so under the
easement. The trial court granted the plaintiff summary judgment,
holding the easement was limited to eight inches. In reversing the
trial court, this Court held that “[c]learly, the reasonableness of
the amount of space needed to operate and maintain [the
defendant's] pipelines raises a question of fact that precludes
summary judgment.” This Court remanded the case for a factual
finding regarding the reasonableness of the amount of space needed
to operate the defendant's pipelines.
As in
Intermount, the relative location of the easement in the
instant case is known, but the precise width of the easement is not
defined. Although the 1962, 1964, and 1968 deeds of plaintiffs
Goodman, Keener, and Forsyths, respectively, expressly specified
the ramp as the area subject to the easement, they noted only the
relative location of the ramp (i.e., “between Lot No. 6 . . . and
the lot of Carl Stanfield”). Plaintiffs Dawsons' deed does not
mention the precise location of the ramp, and the deeds of
plaintiffs Moore and McMillens do not even mention the ramp. Of
all the plaintiffs' deeds, none indicated the geographical extent
of the ramp. As a result, the width of the easement should be
determined by the doctrine of reasonable enjoyment; that is,considering the purpose of the easement and establishing a width
necessary to effectuate that purpose.
See id. at 541, 563 S.E.2d
at 629.
The deeds of plaintiffs Goodman, Keener, and Forsyths indicate
that the purpose of the easement is to allow the grantees to use
the ramp for fishing, swimming, and launching boats. However, the
parties dispute the width necessary to effectuate that purpose.
Plaintiffs argue that the 125-foot-long property, the only area
defendants concede is subject to the easement, is too limited an
area to accommodate the various activities of fishing, swimming,
and launching boats. Defendants respond that “[v]irtually, all of
the activities described in the original [grantors'] grants involve
aquatic pursuits - fishing, swimming, boating - which must be
accomplished in the water, not the land[; a] narrow water access is
consistent with this intent.” Because of this disagreement between
the parties, the reasonableness of the amount of space needed to
effectuate that purpose raises a question of fact that precludes
summary judgment.
See id.
Easement by prescription
[3] Plaintiffs argue in the alternative that they have an
easement by prescription over the disputed area. To establish an
easement by prescription, a claimant must show the use of another's
land: (1) is hostile and not permissive; (2) is open and
notorious; (3) is continuous for twenty or more years; and (4)gives rise to a substantial identity of the easement.
Yadkin
Valley Land Co., L.L.C. v. Baker, 141 N.C. App. 636, 639, 539
S.E.2d 685, 688 (2000).
The use of another's land is presumed permissive.
Id. To
overcome this presumption, a claimant must prove a hostile use.
Id. A hostile use is:
“a use of such nature and exercised under such
circumstances as to manifest and give notice
that the use is being made under claim of
right.” . . . “A party can give notice to the
true owner by 'open and visible acts such as
repairing or maintaining the way over [the
true owner's] land.'”
Id. at 639-40, 539 S.E.2d at 688 (alteration in original)
(citations omitted). Since plaintiffs must show all the above
elements of easement by prescription, the existence of a question
of fact on just one element should lead to the denial of
plaintiffs' motion for summary judgment.
See id. at 639, 539
S.E.2d at 688.
In the instant case, the evidence is in conflict as to the use
and as to whether the alleged use of the disputed area was or has
been hostile and not permissive. Plaintiffs' supporting affidavits
indicate they (and others in the community) have used the areas
subject to the easement, including the disputed area, for fishing,
boating, picnicking, parking boat trailers, and launching and
removing boats from the water, and have mowed and maintained those
areas. However, defendants' supporting affidavits state thatnobody has used the disputed area, which had been full of debris
before defendants' purchase and cleaning up of debris. Because a
question of fact exists as to whether the disputed land was
actively used, and, if so, whether the use was hostile, plaintiffs
were not entitled to summary judgment based on an easement by
prescription.
See id.
In their briefs to this Court, defendants contend that,
assuming plaintiffs had an easement over the disputed area,
defendants' construction over the area did not interfere with the
easement and that plaintiffs had abandoned the easement by
littering on it and not using it. Since we have held that a
genuine issue of material fact exists as to whether plaintiffs have
an easement over the disputed area, the issues of interference and
abandonment are not addressed.
Reversed and remanded.
Judges McGEE and GEER conur.
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ILLUSTRATION
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N
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E
ALBEMARLE SOUND
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DISPUTED
GOODMAN'S
AREA AREA CONCEDED TO BE DAWSONS'
LOT SUBJECT TO LOT LOT 6
(formerly
EASEMENT (formerly
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Stanfield's)
Jennie Arnold's)
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81
125
feet feet
ARNOLD BEACH DRIVE
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Footnote: 1