An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-456


Filed: 04 March 2003


v .                         Cumberland County
                            No. 00 CVS 9545

    Appeal by defendant from judgment entered 3 December 2001 by Judge D. Jack Hooks, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 8 January 2003.

    Poyner & Spruill, LLP, by Robin L. Tatum and Kacey C. Sewell, for plaintiff-appellee.

    Sumrell, Sugg, Carmichael, Hicks & Hart, PA, by Arey W. Grady, III, for defendant-appellant.

    STEELMAN, Judge.

    Plaintiff, Owen Office Park, Inc., owns thirteen acres of real property in Fayetteville, North Carolina. Defendant owns property situated between plaintiff's property and Raeford Road. Defendant, D.L. Rogers Corporation, appeals a judgment in favor of plaintiff regarding an easement running from plaintiff's property to Raeford Road. The judgment of the trial court is affirmed.
    The Owen Family owned a single, large tract of land inFayetteville, Cumberland County, North Carolina from 1900 to 1963. In 1963, J.P. Riddle purchased a portion of the Owen's land, the Office Park Property, for commercial development. This is the property now owned by plaintiff. While the Office Park Property had frontage on Owen Drive, it had no access to Raeford Road because the Owen family retained the portion of land situated on Raeford Road.
    Riddle's option to purchase the land included a clause stating that at the time the deed was delivered, the Owen family would dedicate a public street connecting the Office Park Property to Raeford Road. This option agreement was recorded in the Cumberland County Office of the Register of Deeds. In 1966, the Owens filed a dedication of a 50-foot-wide public street to the City of Fayetteville. In 1969, Riddle and the Owen family agreed to relocate the easement. The Owens built the road in 1969, which included curbing and guttering. The road became known as Putte Williams Road and was intended for the joint use of the Office Park Property and the Owen's property.
    In 1969, Riddle sold the Office Park Property. It was subsequently leased to K-Mart, whose lease expressly provided for use of Putte Williams Road. K-Mart remained on the Office Park Property until 1992. Since then, other businesses have occupied the property and the public has used Putte Williams Road in orderto access the Office Park Property from Raeford Road.
    The City of Fayetteville never accepted the Owen family's offer of dedication and never maintained the street.     In 2000, defendant purchased the Owen family property located between the Office Park Property and Raeford Road. On 8 March 2000, the Owen family filed a document withdrawing the dedication in the office of the register of deeds. This revocation was not filed until a week after defendant had acquired title to the property.
    This matter was heard by the trial court, sitting without a jury. The court entered a detailed order making findings of fact and the following conclusions of law: (1) plaintiff had acquired an easement by necessity; (2) plaintiff was entitled to the use of Putte Williams Road under N.C. Gen. Stat. § 136-96; (3) plaintiff had the right to continue the use of the road because the road was opened and used by the public; and (4) plaintiff had the legal right to use the road pursuant to the principles of equitable estoppel. Defendant was permanently enjoined from interfering with plaintiff's use of Putte Williams Road for ingress and egress to Raeford Road. Plaintiff was ordered to provide maintenance for Putte Williams Road and was allowed to recover its costs for this action. Defendant appeals.
    By its assignments of error one through ten, defendant argues that there was insufficient evidence to support findings of fact10, 13, 16-18, 22, 31-33, 39 and 41. We disagree.
    The trial court's findings of fact are conclusive on appeal if they are supported by competent evidence, even when the record includes other evidence that might support contrary findings. Institution Food House v. Circus Hall of Cream, 107 N.C. App. 552, 556, 421 S.E.2d 370, 372 (1992). Here, we find that there was competent evidence in the record to support each of the findings of fact that are pertinent to the ruling of the trial court. This assignment of error is overruled.
    By defendant's assignments of error eleven to thirteen, it argues the trial court erred in concluding that: (a) plaintiff is entitled to an easement by necessity; (b) plaintiff is entitled to use of the road pursuant to section 136-96; and (c) plaintiff had a legal right to use the road pursuant to the principles of equitable estoppel. We disagree.
    Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal. Harrelson v. State Farm Mut. Auto. Ins. Co., 272 N.C. 603, 158 S.E.2d 812 (1968).
    An easement by necessity will be implied upon the showing of: (1) common ownership of the alleged dominant parcel and the alleged servient parcel which was terminated by the transfer of a portion of the lands; and (2) as a result of the transfer, it became necessary for the alleged dominant parcel to have an easement overthe alleged servient parcel. Wiggins v. Short, 122 N.C. App. 322, 469 S.E.2d 571 (1996). It is not required that absolute necessity be shown. Id. It is sufficient to show physical conditions and use that would reasonably lead one to believe that the grantor intended the grantee should have the right of access. Id. See also Oliver v. Ernul, 277 N.C. 591, 599, 178 S.E.2d 393 (1971).
    The properties belonging to plaintiff and defendant were in common ownership at one time and as a result of the transfer of the property to plaintiff's predecessors in title, it was necessary to have an easement over the Owen family's property to reach Raeford Road. The option agreement of 10 March 1962 clearly states that upon exercise of the option, the Owen family would dedicate a public street running from plaintiff's property to Raeford Road. The option contained a metes and bounds description of the proposed road. This was in fact done in the street dedication to the City of Fayetteville dated 1 November 1966, which specifically refers to the option agreement. The option agreement and the dedication clearly show the intent of the Owen family for the 50-foot easement, later known as Putte Williams Road, to be used for purposes of ingress and egress from Raeford Road to the Office Park Property. In 1969, Putte Williams Road was paved, with curbing and guttering. The road has been used by the public ever since that time. There were sufficient findings of fact to support the trialcourt's conclusion of a way of necessity.
    Defendant contends that the trial court erred in concluding that plaintiff was entitled to use Putte Williams Road under the provisions of N.C. Gen. Stat. § 136-96. It asserts that because the City of Fayetteville never accepted the dedication, the 1966 filing was merely an offer of dedication. Defendant further asserts that the offer of dedication was revocable at any time and was in fact revoked by members of the Owen family in 2000.
    Section 136-96 provides a means for withdrawal of a street dedication where the property in question is not actually opened and used by the public within fifteen years. N.C. Gen. Stat. § 136-96 (2001); Town of Atlantic Beach v. Tradewinds Campground, Inc., 97 N.C. App. 655, 389 S.E.2d 276, cert. denied, 326 N.C. 805, 393 S.E.2d 906 (1990). The statute requires that no abandonment of the street shall be presumed until the dedicator or his successors file a declaration of withdrawal with the register of deeds in the county where the property is located. The statute further provides that it has no application where the street is necessary to afford convenient ingress and egress to parcels of land conveyed by the dedicator. Steadman v. Town of Pinetops, 251 N.C. 509, 112 S.E.2d 102 (1960).
    In this case, the trial judge specifically found that Putte Williams Road “was at the time of dedication and is today,necessary to provide convenient ingress and egress between the Office Park Property and Raeford Road.” This finding was supported by competent evidence. Therefore, the attempted withdrawal of the street dedication was not effective under N.C. Gen. Stat. § 136-96. This assignment of error is overruled.
    Because we have held that the trial court did not err in concluding that plaintiff acquired the easement by way of necessity and that section 136-96 does not apply in this situation, we affirm the decision of the trial court and do not address defendant's other arguments.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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