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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