An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-159


Filed: 6 January 2004


     v .                                 Beaufort County
                                        No. 93-CVD-844< br> DIXIE-DENNING SUPPLY COMPANY,

    Appeal by plaintiffs from judgment entered 18 November 2002 by Judge Samuel G. Grimes in Beaufort County District Court. Heard in the Court of Appeals 29 October 2003.

    Carter, Archie, Hassell & Singleton, L.L.P., by Sid Hassell, Jr., for plaintiff appellants.

    Weyland J. Sermons, Jr., for defendant appellee.

    McCULLOUGH, Judge.
    Summary judgment was granted in favor of defendant, Dixie- Denning Supply Company, Inc., on all claims made by plaintiffs, Eddie Taylor Knott, Lee Edward Knott, Jr., and Rufus Henry Knott, II (collectively “plaintiffs”). The trial court found there to be no issue of material fact as to the location of a right-of-way from plaintiffs' property, across defendant's property, to the nearest publicly maintained road, State Road 1402 (“Grimes Road”). The trial court then ordered the following: the parties split the cost of surveying the right-of-way and staking it upon the ground, and defendant is to remove its fence or any other obstructions of the right-of-way.     A chain link fence, put in place sometime during 1986 by defendant, gave rise to this lawsuit. The forecast evidence offered by both parties, taken from all documents, maps, and affidavits, shows the following: On 21 November 1921, Mrs. Charlotte Grimes Williams conveyed a 3.14-acre tract of land from a 498-acre parcel to J.R. Rhem. In her deed, duly recorded, she made the following recital in her conveyance:
        [S]ubject to the easement of and right to use by the public in the public road lying on the East side of Mount Pleasant Ditch and running parallel thereto and about 20 ft. therefrom from the Grimes road to the Atlantic Coast Line Railroad tract.

Of record is a map, recorded with the 1921 deed in the Beaufort County Registry depicting the right-of-way. Mr. Rhem's widow then conveyed the tract to Hilton Alligood in 1953. After retiring from the propane business which he had operated on the property, Mr. Alligood sold the property to defendant corporation by deed dated 19 October 1979. That deed included the following recital:
        But this conveyance is made subject to the following easements: For the use of public utilities serving this property and right-of- way approximately 21 feet in width extending along the ditch shown in said map from the Southern right-of-way line of the old Pactolus Road southward to the right-of-way line of Seaboard Coastline Railroad. This easement has been in existence for many years and has been used by parties of the first part and their predecessors in title and by property owners owning land southward of the Seaboard Coastline Railroad.

    A long-time neighbor to the subject property, adjoining the other side of the Mount Pleasant ditch, Mr. Cleon Latham confirmedby deposition testimony that he was familiar with the existence of the right-of-way. Having hunted and traveled the area all his life, he placed the chain link fence in the same approximate location as an older, preexisting wooden and wire fence.
    Starting in 1955, Mr. Andrew Holly began working for Mr. Alligood. He stayed on the servient property working for defendant after Mr. Alligood sold the company and land to defendant. In the early 1960's, Mr. Holly and fellow employees built a wooden and wire fence along the east side of the right-of-way, and Mr. Holly maintained a garden on the immediate eastside of this fence. He observed that the right-of-way in question followed just east of the Mount Pleasant ditch, west of the wooden and wire fence. He also observed the chain link fence added by defendant in 1986 was in substantially the same place as the fence he built.
    Defendant, when constructing the 1986 chain link fence, had a surveyor map the location of the new fence. The surveyor's field notes and memory place the right-of-way at all times within 21 feet of the center line of the Mount Pleasant ditch on the west side of the then-existing fence. The current plant manager for defendant, hired in 1984, believes that the chain link fence placed on the property in 1986 was in the same place as the preexisting wooden and wire fence.
    Plaintiff, Lee Knott, Jr., in two separate affidavits attests to the following: in the first dated 4 May 2000, he states that the right-of-way described in the 1921 deed and the recorded map had a width of 20 feet, and was in place when plaintiffs purchased theproperty and was the only means of ingress and egress; in his second, dated 19 May 2000, Mr. Knott states that pursuant to a survey commissioned for this lawsuit, the chain link fence was located 19.7 feet southeastwardly from the center line of the Mount Pleasant ditch and encroached 27.8 feet in the right-of-way. Further, Mr. Knott states in his second affidavit that the old wooden and wire fence was 6.3 feet farther east of the Mount Pleasant ditch than was the newer chain link fence. There is no mention of this older fence encroaching on plaintiffs' right-of- way.
    Based upon this forecast evidence, plaintiffs appeal on the following issues: first, plaintiffs claim that the above facts support reversal, and placement, as a matter of law, of the right- of-way 20 feet east of the edge of the Mount Pleasant ditch pursuant to the clear and unambiguous language of the 1921 deed and map, and therefore summary judgment should be granted in their favor. Alternatively, plaintiffs allege, should this Court determine the 1921 deed is ambiguous, there are issues of fact as to the legal construction of the language of the right-of-way. Finally, if the trial court finds the 1921 deed and map unambiguous and in accord with defendant's reading, there are still issues of fact as to damages owed to plaintiffs.
    Based upon our reading of the 1921 right-of-way as of the time it was drafted, and in the context of the entire deed, we hold as a matter of law that the right-of-way begins at the eastern edge ofMount Pleasant ditch and affirm the lower court's order granting summary judgment.

Standard of Review
When reviewing a lower court's grant of summary judgment, our standard of review is de novo, viewing the forecast evidence in the light most favorable to the non-moving party. N.C. Gen. Stat. § 1A-1, Rule 56 (2001). Summary judgment is proper when the pleadings, together with depositions, interrogatories, admissions on file, and supporting affidavits show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). However, where an issue of fact arises, the movant may show that the party with the burden of proof in the action will not be able to present substantial evidence which would allow that issue to be resolved in his favor. Best v. Perry, 41 N.C. App. 107, 110, 254 S.E.2d 281, 284 (1979). An affidavit which merely reaffirms allegations of the plaintiff's complaint is insufficient to raise an issue of material fact. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 718, 338 S.E.2d 601, 602, disc. review denied, 316 N.C. 374, 342 S.E.2d 889 (1986).
The 1921 Deed and Map
    Plaintiffs contend the 1921 deed and accompanying map, clearly and unambiguously place the right-of-way's eastern edge 20 feet from the edge of Mount Pleasant ditch. We agree that the deed is clear and unambiguous, but hold the eastern edge of the right-of- way to begin at the edge of the ditch.     A right-of-way or easement granted expressly in a deed stands as a contract. Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962). When the language of the right-of-way is clear and unambiguous, its construction is a matter of law. Lovin v. Crisp, 36 N.C. App. 185, 188, 243 S.E.2d 406, 409 (1978). The controlling purpose of the court in construing a contract is to ascertain the intention of the parties as of the time the contract was made, and to do this, consideration must be given to the purpose to be accomplished, the subject matter of the contract, and the situation of the parties. DeBruhl v. Highway Commission, 245 N.C. 139, 145, 95 S.E.2d 553, 557 (1956).
    There is no issue of fact concerning either plaintiff's or defendant's chain of title, or their common lineage to the 1921 deed. The location of a right-of-way once selected or fixed cannot be changed by either the landowner or the right-of-way owner without the other's consent. Cooke v. Electric Membership Corp., 245 N.C. 453, 458, 96 S.E.2d 351, 354 (1957). Neither party alleges that at any point in time after the 1921 deed granting the right-of-way was it changed by mutual consent of subsequent dominant and servient estate property owners.
    It is clear from all the forecast evidence of record, that this right-of-way was to be used as the only means of ingress to and egress from the dwelling house located on the dominate estate to reach the publicly maintained road. Therefore, we hold the language of the 1921 deed is plain and unambiguous when read in its ordinary meaning, and this language controls the location ofplaintiffs' right-of-way. The deed sets out the length of the right-of-way, extending from Grimes Road to the Atlantic Coast Line Railroad tract; the deed sets out the width of the right-of-way, running 20 feet from the ditch; and the deed established the placement of the right-of-way, running parallel to the Mount Pleasant ditch. The map depicting the right-of-way is clear and unambiguous when read with the deed. While our determination is a matter of law, this reading is attested to by the undisputed forecast evidence showing approximately 60 years of use in accord thereto.
    The law endeavors to give effect to the intention of the parties, whenever that can be done consistently with rational construction. Allen v. Duvall, 311 N.C. 245, 251, 316 S.E.2d 267, 271, disc. review allowed, 311 N.C. 745, 321 S.E.2d 125 (1984). Reading the 1921 deed as plaintiff contends, would establish the eastern edge of the right of way 20 feet from the Mount Pleasant ditch. In so reading, this interpretation would fail to establish any width of the right-of-way. Furthermore, the practical effect of the plaintiffs' reading would be to unnecessarily cut off the servient estate's rights to a 20-foot-wide strip of their land by the right-of-way when the undisputed purpose of the right-of-way was limited to the ingress to and egress from a dwelling.
    Reading the forecast evidence in a light most favorable to plaintiffs, they support their reading of the deed with their interpretation of the map recorded with the deed, and accompanying affidavits repeating allegations in their complaint. We agree thatthe depiction of the right-of-way on the map is less than clear when viewed by itself. However, viewing the map with the accompanying plain language of the deed, we see no disparity between the two sufficient to create ambiguity as to the placement of the right-of-way in the 1921 deed. Therefore, both defendant's and plaintiffs' forecast evidence concerning the placement of the deed after the 1921 deed and map is irrelevant as we determine the plain meaning of the deed at the time it was drafted.
Encroachment and Damages
    In light of our holding that the right-of-way begins at the edge of the Mountain Pleasant ditch as a matter of law, the specific amount of encroachment by defendant's fence on plaintiffs' right-of-way is unclear. The record reflects that there may be some encroachment, but we see no issue of fact that plaintiffs have suffered any damages by this encroachment. When responding to a motion for summary judgment, the opposing party must come forward with facts, as distinguished from allegations, sufficient to indicate that he will be able to sustain his claim at trial. See Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).
    In Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982), our Supreme Court, reversing this Court, reinstated a trial court order granting summary judgment on facts similar to those in this case. In Lowe, the plaintiff and defendants owned adjoining lots, where plaintiff had a common use easement across defendants' lot as the only means of access to the nearest paved road. Defendants put a driveway in, without the consent of the plaintiff, which plaintiffclaimed obstructed the use of his easement and caused diminution in his property value. Defendants submitted affidavits of two experienced realtors who averred that no damage to plaintiff's lot resulted from the construction of the driveway. Plaintiff, also filing for summary judgment, submitted affidavits averring only that the easement to his property was obstructed, and that this caused a diminution in property value. Our Supreme Court held this to be insufficient to raise an issue of fact as to damages, as “plaintiff has failed to present any specific facts to show how the driveway has interfered with use of his easement or how it has impaired the value of his property; his allegations are merely conclusory.” Id. at 371, 289 S.E.2d at 367 (emphasis in original).
    Here, plaintiffs contend that defendant's chain link fence, constructed in 1986, has cut off access to Grimes Road and allege damages. Their forecast evidence on this contention are affidavits taken from the plaintiffs stating that the fence has interfered with access to his property from Grimes Road. There is also evidence of letters written from Lee Knott, Jr., to an agent of defendant, dated 27 January and 27 March of 1987, stating that the fence was encroaching on the right-of-way causing “inconvenience” to plaintiffs and their tenant. However, no affidavits were taken of any tenant supporting these allegations. No specific evidence has been forecast that ingress to and egress from plaintiffs' property has actually been obstructed. This action was not filed until November of 1993, approximately six years after the chain link fence replaced the preexisting wood and wire fence and ampletime to generate specific facts of damages caused by the alleged obstruction. Defendant, however, has offered specific evidence that on 21 April 1994, tractors and trucks hauling a big tank were observed using the right-of-way without impediment to reach plaintiffs' property from Grimes Road.
    Plaintiffs have not sufficiently forecast evidence to survive summary judgment on the issue of damages caused by defendant's encroachment to plaintiffs' right-of-way. The level of encroachment is unclear from the record, but assuming some encroachment, defendant has not carried its burden of forecasting an issue of fact as to damages suffered by this encroachment. Nothing in plaintiffs' affidavits or exhibits rises above the allegations made in their complaint.
    Based on the record, the trial court properly concluded as a matter of law the placement of the right-of-way along the eastern edge of the Mount Pleasant ditch. Pursuant to this determination, the court ordered the parties to split the cost of surveying and staking out the exact placement of the right-of-way, and any encroachment by defendant's fence then be removed. In so doing, the trial court merely followed obligations put on it by the Supreme Court when entering a judgment determining a boundary: "[The] judgment should establish the line with such definiteness that it can be run in accordance therewith. 'Otherwise, the judgment would not sustain a plea of res judicata in a subsequent suit between the same parties, involving the same subject matter[.]'” Goodwin v. Greene, 237 N.C. 244, 249, 74 S.E.2d 630,633 (1953) (quoting Cody v. England, 216 N.C. 604, 609, 5 S.E.2d 833, 836 (1939)).
    Viewing all forecast evidence in a light most favorable to the plaintiffs in this case, we hold the trial court properly ordered summary judgment of the easement based on its reading of the 1921 deed as a matter of law. We therefore affirm.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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