An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1062

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2003

GREGORY F. YATES and wife,
KELLY S. YATES,

            Plaintiffs,

v .                         Madison County
                            No. 00 CVS 190
CAROLYN GRAHAM BRADLEY and
SANFORD GRAHAM,
    
            Defendants.

    Appeal by defendants from judgment entered 14 March 2002 by Judge Zoro J. Guice, Jr., in Madison County Superior Court. Heard in the Court of Appeals 23 April 2003.

    Stephen E. Huff for plaintiffs appellees.

    LEAKE & SCOTT, by Larry Leake for defendant appellants.

    TIMMONS-GOODSON, Judge.

    Carolyn Graham Bradley and Sanford Graham (referred to collectively as “defendants”) appeal from a judgment of the trial court granting summary judgment in favor of Gregory F. Yates, and his wife, Kelly S. Yates (referred to collectively as “plaintiffs”). For the reasons stated herein, we affirm the judgment of the trial court.
    On 19 June 2000, plaintiffs filed a “Complaint For Declaratory Judgment” requesting a declaration from the court that plaintiffs have a road easement, for the purposes of ingress and egress, over real property owned by defendants. On 15 August 2001, plaintiffsfiled a motion for summary judgment. On 15 November 2001, plaintiffs filed a motion for the trial court to construe the rights of way at issue prior to a jury trial. Thereafter, the matter was heard in chambers by the trial court judge with all parties and their attorneys present.
    An examination of the pleadings, exhibits, and depositions filed in response to plaintiffs' summary judgment motion, considered in the light most favorable to defendants, tends to show the following: The plaintiffs are the owners of the real property subject to this action located in Madison County at Piney Grove Road in Marshall, North Carolina. Porter Graham and his wife, Doscia Graham (“Porter and Doscia”) are the predecessors in title of the real property of plaintiffs and of defendants. By deed dated 6 June 1946, Porter and Doscia conveyed an undivided interest in their property to D.J. Graham and his wife, Mildred Graham (“D.J. and Mildred”). Thereafter, the following chains of title of plaintiffs' and defendants' deeds occurred:
        (c) that by two deeds each of which is dated August 20, 1953 and each of which was filed for registration on August 20, 1953 in said Registry in Deed Book 84, Page 179, and in Deed Book 84, Page 181, respectively, Porter [and Doscia] and D.J. [and Mildred] divided said original tract of land between themselves, with D.J. [and Mildred] receiving the tract of land described in said Deed Book 84, Page 179, and with Porter [and Doscia] receiving the tract of land described in said Deed Book 84, Page 181.
        
        (d) that in said deed from Porter [and Doscia] to D.J [and Mildred] which is recorded in . . . Deed Book 84, Page 179, there was reserved and excepted 1 acre for the Roberts Grave-Yard for the use of G.H. and NoraRoberts and C.G. Roberts and wife Daisy Roberts, and the general public. In said deed, there was reserved and excepted a right of way 14 feet wide, beginning at the public road at the home of [D. J. Graham's], and running with the present road leading up the hollow to the line of Porter Grahams. In said deed, there was also reserved and excepted a right of way 14 feet wide leading from the Roberts Grave-Yard up the ridge as it meanders to the line of Porter Graham's.
        
        (e) that by deed dated April 1, 1987 and recorded in said Registry in Deed Book 169, Page 276, D.J [and Mildred] conveyed to the Defendant Carolyn Graham Bradley the foregoing described property acquired from Porter [and Doscia] in said Deed Book 73, Page 482, and in said Deed Book 84, Page 179. Said earlier deeds were incorporated by reference in said deed to the Defendant Bradley.
        
        (f) that by deed dated February 7, 1973 and recorded in said Registry in Deed Book 112, Page 573, Porter [and Doscia] conveyed a certain tract of land to William J. Morrison and wife, Edith S. Morrison, which said tract was a part of that same tract acquired by Porter [and Doscia] in the foregoing described Deed Book 84, Page 181. In said deed, Porter [and Dosica] also conveyed to Morrison a 14 foot right of way crossing other lands of Porter Graham and crossing the lands of D.J. Graham to the public highway.
        
        (g) that by deed executed on February 2, 1981 and recorded in said Registry in Deed Book 140, Page 12, said William J. Morrison and wife, Edith S. Morrison reconveyed two portions of said tract . . . to Porter [and Doscia]. Said deed . . . conveyed . . . those rights of way described in said Deed Book 112, Page 573. Said two reconveyed portions were then included in a deed dated February 8, 1983 from Porter [and Mildred], . . . to the Defendant Sanford Graham, which said deed is recorded in said Registry in Deed Book 235, Page 64.
        
        (h) . . . by deed dated September 17, 1999 and recorded in said Registry in Deed Book 259, Page 354, . . . conveyed the remainingportion of said property described in said Deed Book 112, Page 573, to . . . Plaintiffs . . .

    The right of way established by Porter and Doscia, which is located on North Carolina State Road 1111 (Piney Grove Road), is now the subject of dispute between plaintiffs and defendants. Upon hearing the evidence and reviewing exhibits submitted by plaintiffs and defendants, the trial court made numerous findings of fact and conclusions of law resolving the rights of way issue and then granted summary judgment in favor of plaintiffs. Defendants appeal.

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    Defendants argue that the trial court erred in granting summary judgment in favor of plaintiffs because the deed dated 20 August 1953 was (1) patently ambiguous, and (2) latently ambiguous. In the final assignment of error, defendants contend that plaintiffs' predecessors in interest abandoned the “14 foot right of way.” For the reasons stated herein, we affirm the judgment of the trial court.
    Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). The party moving for summary judgment must “clearly demonstrate the lack of any triable issue of fact and entitlement to judgment as a matter of law.” Marcus Bros. Textiles, Inc. v.Price Waterhouse, LLP, 350 N.C. 214, 220, 513 S.E.2d 320, 324 (1999). In reviewing a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing the motion. Id.
    By the first assignment of error, defendants argue that the language of reservation in the 20 August 1953 deed was patently ambiguous and therefore the trial court erred in granting summary judgment in favor of plaintiffs. We disagree.
    “An easement is an interest in land, and is generally created by deed.” Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962). Deeds in which easements are expressly reserved are contracts and are to be construed pursuant to the rules for construction of contracts. Id.; see also Williams v. Skinner, 93 N.C. App. 665, 671, 379 S.E.2d 59, 63, cert. denied, 325 N.C. 277, 384 S.E.2d 532 (1989).
    “'There is a patent ambiguity when the terms of the writing leaves the subject of the contract, the land, in a state of absolute uncertainty, and refer to nothing extrinsic by which it might possibly be identified with certainty.'” Prentice v. Roberts, 32 N.C. App. 379, 382, 232 S.E.2d 286, 288 (1977) (quoting Lane v. Coe, 262 N.C. 8, 12-13, 136 S.E.2d 269, 273 (1964)). Where an easement is created by deed, either by express grant or by reservation, the description of the easement “must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers.” Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942). The deedmust provide sufficient language to “'serve as a pointer or a guide to the ascertainment of the location of the land.'” Parrish v. Hayworth, 138 N.C. App. 637, 640, 532 S.E.2d 202, 205 (2000) (quoting Allen v. Duvall, 311 N.C. 245, 249-251, 316 S.E.2d 125 (1984), disc. review denied, 353 N.C. 379, 547 S.E.2d 15 (2001). “If the description is patently ambiguous, the attempted conveyance or reservation is void for uncertainty.” Id.
    In the instant case, the central issue involves a right of way 14 feet wide for the purpose of ingress and egress over the property of defendants. The 20 August 1953 deed located in Deed Book 84, Page 179 contains the following language:
        RESERVING and EXCEPTING a right of way 14 feet wide, beginning at the public road at the home of J.D. Graham's, and running with the present road leading up the hollow to the line of Porter Grahams.
        
        RESERVING and EXCEPTING a right of way 14 feet wide leading from the Roberts Grave-Yard up the ridge as it meanders to the line of Porter Graham's.

Initially, we note that the trial court made the following pertinent findings of fact:
        6. That it is apparent from the wording contained in said Deed Book 84, Page 179, that the parties (Porter and Doscia Grahma and D.J. and Mildred Graham) intended to reserve and except the two described rights of way 14 feet wide running over the property being therein conveyed to D.J. Graham and wife, Mildred Graham as a part of said property division of August 20, 1953. Each of said rights of way is described as running “to the line of Porter Grahams.” Considering the entire deed and the division of said property by the parties, the Court concludes that the language “to the line of Porter Grahams” was intended by the parties to mean that each of said rights of way was torun in the described location to the line of property owned by Porter Graham, specifically including the property received by Porter Graham . . . in said division . . . . The Court further interprets the language of said rights of way and the intention of the parties as establishing each of said rights of way as perpetual and appurtenant and for the benefit of said property owned by Porter Graham . . .
        
        . . . .        
        8. . . . there is no genuine issue of material fact that the land received by D.J. Graham . . . in said 1953 division . . . is now owned by the Defendant Bradley . . . . There is no genuine issue of material fact that the other lands of Porter Graham crossed by the 14 foot right of way in the Morrison deed . . . is now owned by the Defendant Graham . . . . The Defendant Bradley took her title subject to the rights of way described in said Deed Book 84, Page 179. The Defendant Graham took his title subject to said right of way described in said Deed Book 112, Page 573, and as running to said property of the Plaintiffs. Title examinations by the Defendants would have revealed the existence of said rights of way.
        
        9. . . . there is no genuine issue of material fact as to the location of each of said rights of way. The plat of survey dated March 16, 2001 by Bobby C. McMahan, P.L.S. of McMahan and Associates, P.A. . . . sets forth the location of the centerline (running with 8' soil road) of the right of way which begins at the public road (North Carolina State Road 1111, Piney Grove Road) near the home of D.J. Graham . . . and runs over the respective properties of the Defendants . . . to the property of the Plaintiffs . . .; and in their representations to the Court and argument of counsel, the Defendants have conceded the existence and validity of this right of way. The plat of survey dated March 16, 2001 by Bobby C. McMahan . . . sets fourth the location of the centerline . . . of the right of way which leads from the Roberts Grave-Yard up the ridge . . . over the property of the Defendant Bradley . . . to the property of the Plaintiffs.
“[I]n a non-jury trial in which the trial judge is the finder of facts . . . those findings are conclusive on appeal if supported by competent evidence, even though there may be evidence which would support a contrary conclusion.” Williams, 93 N.C. App. at 671, 379 S.E.2d at 63-64. Here, the findings of the trial judge are supported by competent evidence.
    The language of reservation in the 20 August 1953 deed is clearly not patently ambiguous and sufficiently created the 14 foot right of way in question. In the first reservation, the deed expressly reserves a right of way described as “14 feet wide,” beginning at the public road and ending at the property of Porter Graham. The second reservation also sets forth the description of the easement as “14 feet wide,” beginning at Roberts Grave-Yard and ending at Porter Graham's property. Additionally, we note that the width of the original rights of way is indicated on the deed and plats of survey. Thus, since the original rights of way depicted in Plat Book 4, Page 736 and 737 are capable of being described, the description is not patently ambiguous. Therefore, defendants' first assignment of error is overruled.
    In the second assignment of error, plaintiffs argue that the description of the easement is latently ambiguous. Again, we disagree.
    A description is latently ambiguous if it fails to “'identify the property but refers to something extrinsic by which identification might possibly be made.'” Prentice, 32 N.C. App. at 382, 232 S.E.2d at 288 (quoting Lane v. Coe, 262 N.C. 8, 12-13, 136S.E.2d 269, 273 (1964)). Here, as discussed supra, the existence and location of the “14 foot right of way” is clearly expressed in the reservations and is not latently ambiguous. Defendants fail to present any evidence which contradicts the accuracy of the 1953 deed or the accuracy of the plats of survey. Accordingly, defendants' second assignment of error is overruled.
    In the final assignment of error, defendants argue that there is a genuine issue as to whether plaintiffs' predecessors in interest intended to abandon the easement. We do not agree.
    “As the party claiming the easement was abandoned, defendant has the burden of proof to establish the abandonment.” Skvarla v. Park, 62 N.C. App. 482, 486, 303 S.E.2d 354, 357 (1983). “An easement may be abandoned by unequivocal acts showing a clear intention to abandon and terminate the easement; the intent to abandon is the material question.” Id. at 486-87, 303 S.E.2d at 357. “Mere lapse of time in asserting one's claim to an easement, unaccompanied by acts and conduct inconsistent with one's rights, does not constitute waiver or abandonment of the easement.” Id.
     In the instant case, viewing the evidence in the light most favorable to defendants, the forecast of evidence tends to show that plaintiffs and their predecessors failed to use the right of way leading from the Roberts Grave-Yard. D.J. Graham stated in his affidavit that “if any right of easement was created in any of [the] deeds to a road running by the Roberts cemetery, then the right was abandoned in my opinion because it was never used or claimed for use by any of the owners for almost 50 years.” Theaffidavits of D.J. Graham and his son, Tony Graham, reveal that D.J. Graham erected a gate in the area of the easement and locked the gate, thereby preventing access to the easement created in the 20 August 1953 deed. Moreover, the trial court made the following finding of fact:
        10. . . . Defendants did not plead the issue of abandonment and have attempted to raise said issue for the first time in the affidavit of D.J. Graham and in Defendants' brief filed over Plaintiffs' objection at the hearing of this matter. The Court has considered the affidavits submitted by Defendants and said brief and finds the same to be insufficient to withstand Plaintiffs' motion for summary judgment. In any event, Defendants' only forecast of evidence with regard to abandonment is alleged non-use which would not, as a matter of law, be sufficient to extinguish said express rights of way.
Here, although the evidence tends to show that the easement may not have been used in several years, defendants fail to present evidence which would indicate that the easement was abandoned. The intent to abandon is the material question and mere non-use does not show a clear act of intent on the part of plaintiffs. Therefore, the evidence fails to reveal that plaintiffs displayed an intent to abandon the easement. Defendants' final assignment of error is overruled.
    In conclusion, we hold that the trial court did not err in determining that plaintiffs are the owners of the 14 foot rights of way described in the deeds and plats of survey.
    Affirmed.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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