An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-656


Filed: 20 May 2003


(Thomas V. Downs)

v .                             Swain County
                                No. 99 CVS 22
COLLINS and wife,

    Appeal by defendants from order entered 22 January 2001 by Judge Walter C. Allen and from judgment entered 18 October 2001 by Judge J. Marlene Hyatt in Swain County Superior Court. Heard in the Court of Appeals 12 March 2003.

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

    Brown Queen Patten & Jenkins, P.A., by Mark L. Jenkins, for defendants-appellants.

    William L. Richards, for Thomas V. Downs.

    LEVINSON, Judge.

    On 3 February 1999, plaintiffs filed a complaint against defendants alleging defendants intentionally blocked a recorded easement in favor of plaintiffs that ran across defendants' property. Defendants denied plaintiffs' allegation and counterclaimed, alleging they had an easement across plaintiffs'property for the use of spring water located on plaintiffs' property.
    On 9 June 2000, plaintiffs filed a motion for partial summary judgment. A hearing was conducted, and on 22 January 2001, Judge Walter C. Allen granted partial summary judgment finding plaintiffs were entitled to a right of way as “described in Deed Book 103, at page 440, Swain County Registry” for ingress, egress, and regress. Additionally, Judge Allen found defendants were entitled to:
        [T]he right to take water from the spring which is located on the lands of the Plaintiffs, which spring is the spring which was providing water to the lands now owned by Defendants on October 24, 1967, together with the right to maintain repair and place a reservoir at said spring and pipeline leading from said reservoir, along its then existing route to the lands of Defendants. . . .

    Subsequently, a jury affixed the location and width of plaintiffs' right of way located on defendants' property. Defendants appealed, alleging the trial court erred in (1) granting partial summary judgment in favor of plaintiffs and (2) allowing the use of the deposition of Marie Meder, a former title holder to plaintiffs' property, on the grounds that she was unavailable.
    Defendants contend the trial court erred in granting partial summary judgment as to plaintiffs' right of way because the deed purporting to convey the right of way to plaintiffs “is not legally valid or enforceable and does not establish an easement.”
    In 1967, Morris and Naomi Edwards, then titleholders to both defendants' and plaintiffs' tracts, conveyed plaintiffs' tract toEdward and Marie Meder, plaintiffs' predecessors in interest. The 1967 deed included the following grants:
        Grantor's reserve the right to the use of spring water according to such use as is now made by them, along with the right of ingress, egress and regress in and to the above described property, giving and granting to Grantees a like right of ingress, egress and regress over the lands retained by Grantors as such right of way now exists on said lands.

(emphasis added). Defendants argue the language in the deed does “not with specificity or unambiguously establish the nature, terms and conditions of the easement.”
    Summary judgment is proper when there is no genuine issue as to any material fact and any party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56(c); Coastal Leasing Corp. v. T- Bar Corp., 128 N.C. App. 379, 496 S.E.2d 795 (1998). The moving party bears the burden of showing that no triable issue exists. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-42 (1992).
        When 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)).
        It is to be stressed that an alleged grant or reservation of an easement will be void and ineffectual only when there is such anuncertainty appearing on the face of the instrument itself that the court -- reading the language in the light of all the facts and circumstances referred to in the instrument -- is yet unable to derive therefrom the intention of the parties as to what land was to be conveyed.

Id.; see also Bee Tree Missionary Baptist Church v. McNeil, __ N.C. App. __, __, 570 S.E.2d 781, 784 (2002).
        The law endeavors to give effect to the intention of the parties, whenever that can be done consistently with rational construction. When the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land -- never to create description. When, as here, the ambiguity in the description is not patent but latent -- referring to something extrinsic by which identification might be made -- the reservation will not be held to be void for uncertainty.

Allen, 311 N.C. at 251, 316 S.E.2d at 271 (citations omitted).
    Defendants contend the location of the easement is ambiguous and there are material issues of fact because defendant Theresa Collins stated in her affidavit, “When we purchased our property in 1994 there were no visible roads leading to the lands of the Plaintiff.” Since the deed creating the easement refers to “such right of way [as] now exists” was executed in 1967, whether there was a visible road leading to plaintiffs' property in 1994 does not create an issue of material fact as to whether an easement existed. Any latent ambiguity here was properly resolved by the jury. Defendants' assignment of error is overruled.

    Next, defendants contend the trial court erred in allowing plaintiffs to read into evidence the deposition of Marie Meder, a predecessor in interest to plaintiffs' property. At the beginning of the trial, plaintiffs moved for the trial court to find Ms. Meder unavailable because at the time she was located over one hundred miles from the place of trial. See N.C.R. Civ. P. 32(a)(4). The trial court found that Ms. Meder was unavailable and allowed her deposition to be read into evidence.
    Rule 32(a)(4) states in pertinent part:
        The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds . . . the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition. . . .

Defendants do not contest that Ms. Meder was “at a distance greater than 100 miles from the place of trial” nor do they allege that plaintiffs procured her absence. Rather, defendants argue the trial court erred because (1) plaintiffs knew she would be unavailable at the time of the trial and “could have subpoenaed her at [the deposition],” and (2) “a cross-examination of her in front of the jury would have been beneficial to the Defendants/Appellants.”
    Defendants cite no authority in support of their argument that plaintiffs had a duty to subpoena Ms. Meder, nor do we find any. Furthermore, there is nothing contained within Rule 32(a)(4) thatmight require plaintiffs to subpoena this witness. Accordingly, this assignment of error is overruled.
    Affirmed in part, no error in part.
    Judges WYNN and TIMMONS-GOODSON concur.
    Report per Rule 30(e).

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