An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-308
        

NORTH CAROLINA COURT OF APPEALS

Filed: 04 March 2003

APPLE MOUNTAIN HOMEOWNERS
ASSOCIATION, INC., ROBERT P.
KOVEN and wife GALE S. KOVEN,
WILLIAM R. BLANK and wife
SALLY C. BLANK,
    PlaintiffS

v .                         Macon County
                            No. 99 CVS 471
ANN W. SCOTT,
    Defendant

    Appeal by defendant from judgment entered 9 August 2001 by Judge James L. Baker, Jr. in Macon County Superior Court. Heard in the Court of Appeals 22 January 2003.

    Jones, Key, Melvin & Patton by R.S. Jones, Jr., Esquire, for plaintiffs-appellees.

    Creighton W. Sossomon for defendant-appellant.

    STEELMAN, Judge.

    Plaintiffs Robert P. Koven, his wife, Gale S. Koven, William R. Blank and his wife, Sally C. Blank (collectively “individual plaintiffs”) are owners of lots in a subdivision known as the Apple Mountain Development located in Macon County, North Carolina. Plaintiff Apple Mountain Property Owners Association, Inc. (“Association”) was formed in 1983 “for the purpose of maintaining roads, maintaining water, beautification, [and] any other homeowner's problems that would come up” in the Apple Mountain Development. Defendant is the owner of a 5.36 acre tract locatedto the south of the Apple Mountain Development and lying between that subdivision and Lake Ravenel.
    In 1975, the property now comprising the Apple Mountain Development and defendant's property were held in common ownership by Clarence E. Habermehl, Successor Trustee (“Habermehl”). On 6 October 1977, Habermehl recorded a Declaration of Restrictive Covenants (“Declaration”). Paragraph 7 of the Declaration granted a right-of-way to each lot owner for the use of roadways in the width of 60 feet as well as the right to use Lake Ravenel for recreational purposes. The Declaration further reserved a 15-foot easement “immediately above the high water mark of Lake Ravenel and of the river and streams feeding the same, for the purpose of access, clearing, beautification and/or fishing, the same to be used in common with all other owners within the lands subject to this instrument.” The Declaration stated that the covenants would be applicable to those portions of the lands owned by Habermehl in Highlands Township, Macon County, North Carolina, which were conveyed with specific reference to the Declaration. Defendant's property was conveyed with specific reference to the Declaration. The deed from Habermehl conveying the property now comprising Apple Mountain Development contained restrictive covenants substantially similar to those recited in the Declaration but did not mention the 15-foot easement or expressly refer to the Declaration.
    On 6 March 1978, Habermehl conveyed 5.36 acres to Robert V. Brundage and his wife Elizabeth R. Brundage, defendant's predecessors-in-title (“Brundage Deed”). The metes and boundsdescription of the 5.36 acres, now owned by defendant, contained several references to a 60-foot right-of-way crossing the property. In particular, the description referred to the 60-foot right-of-way where it enters defendant's property on the northern corner and cited four calls running with the centerline of the right-of-way to the southeast corner, where it leaves defendant's property. The Brundage Deed also contained the following language pertaining to the right of way:
        Party of the first part reserves for himself, his successors and assigns, the right to use in common with parties of the second part, their heirs and assigns, and all others who may now have or hereafter acquire the right to use the same, the 60-foot wide road and utility right-of-way the centerline of which forms a portion of the south-east boundary of the lands hereby conveyed and which runs through the approximate center of the lands hereby conveyed in a general northerly direction to the northernmost corner thereof, all as now constructed and located upon the land.
The Brundage Deed made specific reference to a plat by L. Stephen Foster, Registered Surveyor, dated 1 June 1976. This plat clearly shows a 60-foot right-of-way running through defendant's property to Lake Ravenel.
    On 7 September 1978, Habermehl conveyed a 21.90 acre tract to B. Coleman Beale, Jr. (“Beale Deed”). This property encompasses the land that became the Apple Mountain Development and includes the individual plaintiffs' property. The Beale Deed contained the following provisions:
        Party of the first part further conveys unto party of the second part, his heirs and assigns, the right to use in common with partyof the first part, his successors and assigns, and all others who may now have or hereafter acquire the right to use the same, the 60-foot wide road and utility right-of-way, the centerline of which forms the westernmost, the southernmost and the easternmost boundary of the lands hereby conveyed.

...

        Party of the first part further conveys unto party of the second part, his heirs and assigns, the right to use in common with party of the first part, his successors and assigns, and all others who may now have or may hereafter acquire the right to use the same, the extension of the 60-foot wide road and utility right-of-way to the point of intersection with Lake Ravenel.
    In October 1999, plaintiffs filed a complaint against defendant seeking a declaratory judgment to enforce their right to use the 60-foot wide joint road and utility right-of-way easement crossing the defendant's property, claiming it was reserved in the Brundage Deed and conveyed by the Beale Deed.
    The trial court, sitting without a jury, concluded that: (1) the Brundage Deed contained an express reservation of the 60-foot wide joint road and utility right-of-way shown on the 1 June 1976 plat; (2) the Beale Deed expressly conveyed an easement for the 60- foot wide joint road and utility right-of-way; (3) this easement was appurtenant to plaintiffs' lands and that they thus acquired the right to use it by virtue of their succession to ownership of the land conveyed in the Beale Deed; (4) coincident with the right to use the easement, plaintiffs have the right to repair and improve it; and (5) defendant does not have the right to block or otherwise obstruct plaintiffs' access over the road or to interferewith the use and improvement thereof.
    Defendant first contends the trial court erred in denying her motion to dismiss the plaintiff Association based on its lack of standing to seek a declaratory judgment enforcing the claimed easement. Whether the Association has standing in this action is a question of law which is reviewed de novo by this Court. Lee Ray Bergman Real Estate Rentals v. North Carolina Fair Hous. Ctr., ___ N.C.App. ____, 568 S.E.2d 883 (2002).
    An association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit. Creek Pointe Homeowner's Ass'n v. Happ, 146 N.C. App. 159, 552 S.E.2d 220 (2001) (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 53 L. Ed. 2d 383 (1977)), disc. review denied, 356 N.C. 161, 568 S.E.2d 191 (2002). The individual standing required under the first prong is demonstrated by proving an injury-in-fact caused by the challenged action of the defendant which is likely to be redressed by a favorable decision. Neuse River Found. v. Smithfield Foods, ___ N.C. App. ___, 574 S.E.2d 48 (2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992)). The third prong of this test is more likely to be met when declaratory or injunctive relief is sought, since that type of relief benefits all members of the association. Creek Pointe, 146 N.C. App. at 165-66,552 S.E.2d at 225.
    The Association fulfills each prong of the Hunt test adopted by this Court in Creek Pointe, supra, to determine standing of an association in the representative capacity. First, the individual plaintiffs suffered an injury-in-fact which was caused by defendant's blocking their use of the 60-foot right-of-way across her property to reach Lake Ravenel and which would be redressed by the granting of an injunction. Thus, the individual plaintiffs had standing to sue in their own right. Second, protecting the plaintiffs' right to use the 60-foot right-of-way across defendant's property is germane to the purpose of the Association as established by Mr. Koven's testimony that it was created “for the purpose of maintaining roads, maintaining water, beautification, [and] any other homeowner's problems that would come up” in the Apple Mountain Development. Finally, the only relief sought by the Association is a declaration of the right to use the 60-foot right-of-way and an injunction against defendant prohibiting her from interfering with its use by lot owners in the Apple Mountain Development. We hold the trial court did not err in denying defendant's motion to dismiss the Association from this action.
    In her second assignment of error, defendant contends the trial court erred in finding that plaintiffs had the right to use a 60-foot wide easement located on defendant's property. Defendant contends that the easement claimed by plaintiffs is ambiguous and unenforceable. On appeal, this Court is bound by the trial court'sfindings if supported by competent evidence, even if evidence exists to sustain contrary findings. Cardwell v. Henry, 145 N.C. App. 194, 549 S.E.2d 587 (2001).
    “An express easement must be 'sufficiently certain to permit the identification and location of the easement with reasonable certainty.'” Wiggins v. Short, 122 N.C. App. 322, 327, 469 S.E.2d 571, 575 (1996)(quoting Adams v. Severt, 40 N.C. App. 247, 249, 252 S.E.2d 276, 278 (1979)). Our Supreme Court has held that
        [w]hen an easement is created by deed, either by express grant or by reservation, the description thereof “must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers....There must be language in the deed sufficient to serve as a pointer or a guide to the ascertainment of the location of the land.”

Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984) (quoting Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942))(emphasis in original). Furthermore, if an express reservation of an easement contains a latent ambiguity, “referring to something extrinsic by which identification might be made,” it is not void for uncertainty, Allen, supra, at 251, 316 S.E.2d at 271, and a plaintiff may offer extrinsic evidence tending to resolve such latent ambiguity. Stines v. Wylling Inc., 81 N.C. App. 98, 344 S.E.2d 546 (1986). A map or plat specifically referenced in a deed becomes part of the deed and need not be recorded. Kaperonis v. North Carolina State Highway Comm'n, 260 N.C. 587, 133 S.E.2d 464 (1963) (citing Collins v. Asheville Land Co., 128 N.C. 563, 39 S.E. 21 (1901)).     The metes and bounds description in the Brundage Deed specifically referenced the 60-foot right-of-way. The Brundage Deed expressly reserved for the grantor, Habermehl, his successors and assigns use of a 60-foot wide road and utility right-of-way across the property now owned by defendant. The reservation of the easement in the Brundage Deed specifically referred to the road as being at the southeast corner of the property and running through the center of the property at its northeast corner. These two descriptions are sufficient to act as a guide to determine the location of the easement with reasonable certainty.
    Moreover, the Brundage Deed expressly referred to the 1 June 1976 plat which, according to our Supreme Court's holding in Kaperonis, supra, was incorporated into the deed's description. Thus, if there is an ambiguity in the identification or location of the easement at issue here, such ambiguity is latent and is resolved by the plat explicitly referenced in the Brundage Deed which clearly shows the easement's location.
    The Beale Deed, the source for the individual plaintiffs' title, expressly granted an easement, being the extension of the 60-foot wide road and utility right-of-way to Lake Ravenel. It also referred to a specific plat dated 7 August 1978. The June 1976 and August 1978 plats taken together clearly show that the 60- foot wide easement over defendant's property to Lake Ravenel is an extension of the 60-foot easement running from U.S. Highway 64. The road leading to the Apple Mountain Development turns west and to the right at the northernmost corner of defendant's property. This description also is sufficient to act as a guide to determine the location of the easement with reasonable certainty. Therefore, we hold the trial court did not err in finding plaintiffs had the right use a 60-foot wide easement located on defendant's property.
    Defendant's final assignment of error is that the trial court made an implicit finding of a common scheme of development. Defendant acknowledges that there was no explicit finding of a common scheme of development by the trial court.
    The Declaration recorded prior to any conveyance by Habermehl contained 14 separate restrictions, and the Brundage Deed was specifically made subject to these restrictions. While there was no reference to the Declaration in the Beale Deed, it also contained 14 separate restrictions which were substantially similar to those found in the Declaration. The only difference between the 14 restrictions in the two documents argued by defendant is that there is no reservation of a 15-foot easement from the high water mark of Lake Ravenel contained in the Beale Deed. Since the property described in the Beale Deed did not at any point abut on Lake Ravenel, there was no need for such a reservation in the Beale Deed. This is an insignificant difference.
    What is important about the Declaration and the Beale Deed restrictions is that each contained paragraph 7 which clearly stated Habermehl's intent that all lot owners, their successors and assigns should have the right to use the 60-foot access roads and to use Lake Ravenel for recreational purposes. Because we have held that the Declaration and the Beale Deed created a 60-footexpress easement located on defendant's property, whether the trial court made an implicit finding as to a common scheme of development is irrelevant. Therefore, this assignment of error is overruled.
    In summary, we find the Association had representative standing to seek a declaratory judgment enforcing the claimed easement. We conclude there is sufficient evidence to support the trial court's findings and conclusions that the Brundage Deed expressly reserves an easement for Habermehl and the individual plaintiffs, as his successors, and that the Beale Deed expressly grants the right to use this easement to the individual plaintiffs. Further, the language of the Brundage and Beale Deeds along with the referenced plats provide a description sufficiently certain to identify and locate the easement and lands affected. Therefore, we hold the trial court did not err in entering its judgment which located the easement on defendant's property and declared the individual plaintiffs entitled to use the easement while enjoining defendant from interfering with their rights to use and improve the easement.
    AFFIRMED.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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