On or about 9 October 1958, NCNG acquired from Thomas M. Query
and Ola T. Query an express easement across the Querys' farm. The
granting clause in the 1958 Grant of Easement ("the granting
clause") gave NCNG "the right to construct, maintain, inspect,
operate, protect, repair, replace, change the size of, or remove a
pipeline or pipelines and appurtenances, for the transportation of
natural gas, . . . together with the right of ingress and egress to
and from the same for the purposes aforesaid, over, under, through
and across" the grantors' land. The Grant of Easement contained an
additional clause ("the limiting clause"), providing: "It is
agreed that the pipeline or pipelines to be laid under this grant
shall be constructed at sufficient depth below the surface of the
ground to permit normal cultivation, and Grantor shall have the
right to fully use and enjoy the above described premises, subject
to the rights herein granted."
In 1959, NCNG built a 16-inch-wide pipeline under and across
a portion of the Querys' farm. The Querys used this portion of
their property as pastureland with their barn located nearby. In
the course of the construction, NCNG damaged the surface of the
Querys' land and did not restore it. The estate of T. M. Query
sued for compensation for the damage. In a settlement of the
claim, NCNG paid $1,250.00 for the damage and agreed that it would
pay for any future damage to the Querys' livestock, crops, and
property resulting from maintenance of the existing gas line or
construction of any new pipeline. In 1990, CFL acquired the Querys' property and, in 1995,
subdivided it for development as the Harrisburg Industrial Park.
The NCNG pipeline diagonally bisects Lot 9 of the industrial park.
In 2000, NCNG began construction of a new 30-inch-wide pipeline
along the easement, but 36 inches below the surface. Because of an
agreement with the railroad, entered into shortly before
construction of the new pipeline, NCNG also installed above the
ground, roughly in the center of Lot 9, a safety valve fenced in by
a 20-foot by 30-foot enclosure. NCNG did not contact CFL prior to
constructing the enclosure and the valve.
CFL filed this action on 4 September 2001, seeking a permanent
injunction enjoining NCNG from maintaining the valve, ordering NCNG
to remove the valve, and enjoining NCNG from trespassing on CFL's
property. On 12 October 2001, NCNG filed an answer and
counterclaim, alleging that CFL had trespassed on its easement by
further burying the 16-inch-wide pipeline with debris. CFL filed
an amendment to its complaint on 11 April 2002, adding a claim for
The parties filed cross-motions for partial summary judgment
on the issues of NCNG's liability and CFL's entitlement to
injunctive relief. On 16 June 2003, the trial court entered an
order granting partial summary judgment to CFL on its claims for a
mandatory injunction and trespass, leaving the issues of damages
and NCNG's counterclaims pending. NCNG appealed that order on 7
July 2003. NCNG has also filed a petition for writ of certiorari. We first observe, as NCNG has acknowledged, that this appeal
is interlocutory: "A grant of partial summary judgment, because it
does not completely dispose of the case, is an interlocutory order
from which there is ordinarily no right of appeal." Liggett Group,
Inc. v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993).
An interlocutory appeal is permissible only if (1) the trial court
certified the order for immediate interlocutory appeal under Rule
54(b) of the Rules of Civil Procedure, or (2) the order affects a
substantial right that would be lost without immediate review.
Embler v. Embler, 143 N.C. App. 162, 164-65, 545 S.E.2d 259, 261
Since the order at issue in this appeal does not contain a
Rule 54(b) certification, we must determine whether the order
affects a substantial right of defendant. This Court has held that
"ordering the removal of substantial structures from real property
affects [a] substantial right, and therefore, the partial summary
judgment is immediately appealable." Keener v. Arnold, 161 N.C.
App. 634, 637, 589 S.E.2d 731, 733 (2003), disc. review denied, 358
N.C. 376, 598 S.E.2d 136 (2004). See also Steel Creek Dev. Corp.
v. James, 300 N.C. 631, 636, 268 S.E.2d 205, 209 (1980) (mandatory
injunction ordering removal of concrete anchors placed on the
plaintiffs' submerged lands affected a substantial right and was
thus immediately appealable). The trial court's order requiring
removal of the safety valve thus affects a substantial right of
NCNG. Because we hold that NCNG has a right to an immediate
appeal, we dismiss its petition for writ of certiorari as moot.
The North Carolina Rules of Civil Procedure provide that
summary judgment shall be granted "if 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.R. Civ. P. 56(c). In deciding the motion,
"'all inferences of fact . . . must be drawn against the movant and
in favor of the party opposing the motion.'" Caldwell v. Deese
288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James W.
Moore et al., Moore's Federal Practice
§ 56-15, at 2337 (2d ed.
The party moving for summary judgment has the burden of
establishing the lack of any triable issue. Collingwood v. General
Elec. Real Estate Equities, Inc.
, 324 N.C. 63, 66, 376 S.E.2d 425,
427 (1989). Once the moving party meets its burden, then the
non-moving party must "produce a forecast of evidence demonstrating
that the plaintiff will be able to make out at least a prima facie
case at trial." Id.
In opposing a motion for summary judgment,
the non-moving party "may not rest upon the mere allegations or
denials of his pleading, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial." N.C.R. Civ. P.
On appeal, this Court's task is to determine, on the basis of
the materials presented to the trial court, whether there is agenuine issue as to any material fact and whether the moving party
is entitled to judgment as a matter of law. Oliver v. Roberts
N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980), cert. denied,
S.E.2d 283 (1981). A trial court's ruling on a motion for summary
judgment is reviewed de novo
since the trial court rules only on
questions of law. Va. Elec. & Power Co. v. Tillett
, 80 N.C. App.
383, 384-85, 343 S.E.2d 188, 191, cert. denied
, 317 N.C. 715, 347
S.E.2d 457 (1986).
In appealing the trial court's grant of partial summary
judgment to CFL, NCNG argues solely that the trial court
misconstrued the unambiguous language of the express grant of
easement. It contends (1) that the granting clause, which
contained no limitation on above-ground pipelines or appurtenances,
controlled over any subsequent clauses; and (2) that the limiting
clause, requiring placement of pipelines underground, does not
govern the placement of appurtenances.
With respect to its first argument, NCNG points to Bryant v.
, 220 N.C. 628, 631, 18 S.E.2d 157, 159 (1942) (quoting Boyd
, 192 N.C. 398, 401, 135 S.E. 121, 122 (1926)), holding
that "'if there are repugnant clauses in a deed the first will
control and the last will be rejected,'" regardless of the overall
intent of the parties. Our Supreme Court has held, however, that
this principle of deed construction does not apply to deeds of
[B]ecause the . . . deed conveyed an easement
rather than a fee, we find that the rules
applicable to its construction are the rules
for construction of contracts. . . . We holdthat in construing a conveyance of an
easement, . . . the deed is to be construed in
such a way as to effectuate the intention of
the parties as gathered from the entire
Higdon v. Davis
, 315 N.C. 208, 215-16, 337 S.E.2d 543, 547 (1985).
The sole task for this Court is to determine whether, as NCNG
contends, the language in the granting clause giving it "the right
to construct . . . a pipeline or pipelines and appurtenances, for
the transportation of natural gas . . . over, under, through and
across" CFL's property allowed NCNG to install the safety valve and
600 square foot enclosure on the surface of CFL's property despite
the easement's provision that "the pipeline or pipelines to be laid
under this grant shall be constructed at sufficient depth below the
surface of the ground to permit normal cultivation . . . ." Since
a deed of easement is a contract, it is construed "so as to
ascertain the intention of the parties as gathered from the entire
instrument at the time it was created." Intermount Distribution,
Inc. v. Pub. Serv. Co. of N.C., Inc.
, 150 N.C. App. 539, 542, 563
S.E.2d 626, 629 (2002). As stressed by our Supreme Court, in
addressing an easement deed, "[t]he intention of the parties is to
be gathered from the entire instrument and not from detached
portions." Weyerhaeuser Co. v. Carolina Power & Light Co.
N.C. 717, 719 127 S.E.2d 539, 541 (1962).
The issue arising in this case is over the extent of the
easement. Williams v. Abernethy
, 102 N.C. App. 462, 465, 402
S.E.2d 438, 440 (1991) (quoting Restatement of Property § 482 cmt.
a, at 3009 (1944)) ("'By the phrase "extent of an easement" ismeant the limits of the privileges of use authorized by the
easement.'"). The first question is whether the easement grant
contains language addressing the extent of the easement. When the
terms of an easement grant are "'perfectly precise'" as to the
extent of the easement, then the terms control. Id.
at 464-65, 402
S.E.2d at 440 (quoting Restatement of Property § 483 cmt. d, at
3012 (1944)). At the other end of the spectrum, when "there is no
language in the conveyance addressing the extent of the easement,
extrinsic evidence is inadmissible as to the extent of the
easement. However, in such cases, a reasonable use is implied."
at 465, 402 S.E.2d at 440. If the easement does contain
language as to the extent of the easement, but is ambiguous, then
"the grant may be interpreted by reference to the attendant
circumstances, to the situation of the parties, and especially to
the practical interpretation put upon the grant by the acts of the
parties in the use of the easement immediately following the
(internal quotation marks omitted).
Here, both parties contend that the easement conveyance is
unambiguous regarding the extent of NCNG's easement. CFL points to
the limiting clause requiring that NCNG's pipelines be built
sufficiently underground to allow cultivation. NCNG, on the other
hand, argues that since the granting clause references both
pipelines and appurtenances, but the limiting clause mentions only
pipelines, the latter clause should be construed as not restricting
the placement of appurtenances. NCNG further argues that the
granting clause's use of the phrase "over, under, through andacross lands" necessarily means that NCNG could construct
appurtenances "over" the land. We find that both CFL's and NCNG's
interpretations of the limiting clause are reasonable. See Ostrem
v. Alyeska Pipeline Serv. Co.
, 648 P.2d 986, 988 n.2 (Alaska 1982)
("Alyeska had argued that the valve control facility was an
appurtenance of the pipeline, and that the easement did not require
burying such appurtenances, only the pipeline itself. This was a
plausible reading of . . . the easement, but clearly [plaintiff's]
reading [prohibiting placing the valve above ground] was equally
plausible."). If the language of a contract is susceptible of two
constructions, it is ambiguous. Lagies v. Myers
, 142 N.C. App.
239, 248, 542 S.E.2d 336, 342, disc. review denied
, 353 N.C. 526,
549 S.E.2d 218 (2001).
While we agree that NCNG's construction of the easement _
allowing the placement of the safety valve enclosure above ground
_ is reasonable, we do not agree that it is the only reasonable
construction of the grant. The limiting clause's requirement that
the pipelines be sufficiently below the surface of the ground to
permit "normal cultivation" and the additional proviso that
"Grantor shall have the right to fully use and enjoy the above
described premises, subject to the rights herein granted" suggests
that the word "pipeline" was intended to include appurtenances. If
the intent of the parties was to allow full cultivation of the
surface land, an above-ground appurtenance would be inconsistent
with that intent.
The Louisiana Court of Appeals reached this
conclusion as a matter of law in Sigue v. Tex. Gas TransmissionCorp.
, 154 So. 2d 800, 802 (La. Ct. App.), cert. denied
, 244 La.
1025, 156 So. 2d 228 (1963), cert. denied
, 379 U.S. 922, 13 L. Ed.
2d 335, 85 S. Ct. 277 (1964). When construing an almost identical
easement, the court held: "Such a construction of the contract in
question [to allow above-ground appliances] would ignore the plain
language contained therein that the defendant 'agrees to bury all
pipelines so that they will not interfere with the cultivation of
the land. . . .'" Id.
While NCNG also points to the word "over" in the easement,
courts in other jurisdictions have held that a conveyance's use of
the word "over" or "upon" in the granting clause is not
dispositive. See, e.g.
, Consol. Foods Corp. v. Water Works &
Sanitary Sewer Bd. of the City of Montgomery
, 294 Ala. 518, 522,
319 So. 2d 261, 264 (1975) ("The language 'in, upon, along and
across' is not inconsistent with 'under the ground.' The former is
only the prepositional litany denoting a right of access. It is
general language granting the Board a right of ingress and egress
across [plaintiff's] property."); Elizabethtown v. Caswell
S.W.2d 424, 425 (Ky. 1953) (in construing a deed of easement for a
sewer line "through, over and across the real estate," holding that
"[i]t is necessary to go 'over' the right-of-way in order to
construct, repair, renew, operate and maintain the sewer line, and
we believe it is more consonant with sound reasoning to say that
the word was inserted in connection with those privileges than to
interpret it to mean that the sewer pipe itself could properly be
laid on top of the ground"); Besser v. Buckeye Pipe Line Co.
, 57Ohio App. 341, 342-43, 13 N.E.2d 927, 928 (1937) (even though the
easement included the words "over and through," a pipeline was
required to be built under the ground when the grantors reserved
the "right to fully use and enjoy said premises except for the
purposes hereinbefore granted"). Accordingly, we hold that CFL's
construction of the easement is just as reasonable as NCNG's.
Since the language of the easement conveyance is susceptible
of two reasonable constructions, it is ambiguous and we must look
to "'the attendant circumstances, to the situation of the parties,
and especially to the practical interpretation put upon the grant
by the acts of the parties in the use of the easement immediately
following the grant.'" Williams
, 102 N.C. App. at 465, 402 S.E.2d
at 440 (quoting 2 G. Thompson, Commentaries on the Modern Law of
§ 385, at 528 (repl. 1980)). Here, the evidence is
undisputed that the Querys used the property for farming (including
the portion where the pipeline was located) and that the
originally-constructed 16-inch pipeline and its accompanying valves
were buried entirely underground. NCNG did not attempt to install
any above-ground appurtenances until 42 years after the granting of
CFL also submitted the affidavit of the Querys' son, who had
advised his parents in connection with their granting of the
easement to NCNG. He stated:
It was never contemplated or intended
that the Gas Corporation would install
anything on the land above the surface because
this was a farm and the surface was being used
for a farm. That is why the easement states
that the pipeline would be constructed at asufficient depth below the surface to permit
The Querys' son successfully brought suit against NCNG after
construction of the 16-inch pipeline for damage to the surface of
the farm and obtained a commitment from NCNG that "it would pay for
any damage in the future to our livestock, crops, and property as
[a] result of maintenance of [the] first gas line or the
construction of another pipeline."
NCNG does not point to any evidence that rebuts CFL's showing,
but rather argues that the valve is necessary for the safety of the
public and that the fenced enclosure is due to federal regulations
requiring that the valve be readily accessible and protected from
tampering. NCNG's witnesses acknowledged in their depositions,
however, (1) that NCNG only constructed the safety valve after it
entered into an agreement with the railroad shortly before
constructing the 30-inch pipeline in 2000, and (2) that the federal
regulations only went into effect in 1971, 13 years after the
granting of the easement. NCNG cites no authority suggesting that
the recent railroad agreement and the 1971 federal regulations are
relevant to the intent of the parties in entering into the easement
agreement in 1958. Because NCNG has offered no evidence to counter
that of CFL's regarding the intent of the parties with respect to
the easement, we hold that the trial court properly granted partial
summary judgment to CFL.
Although defendant urges that construing the 1958 easement to
preclude the safety valve added in 2000 would be "inequitable and
inappropriate," it cites no authority in support of this argument. We stress that NCNG has argued on appeal only that the express
terms of the easement permitted it to construct the safety valve
and fenced enclosure above ground. As the Supreme Court emphasized
, however, "[i]t is the province of the courts to
construe and not to make contracts for the parties." 257 N.C. at
719, 127 S.E.2d at 541. We cannot, as a matter of contract law,
rewrite the easement 46 years later in a manner inconsistent with
the intent of the original parties. Accordingly, we hold that the
trial court properly granted partial summary judgment to CFL on its
claim for a mandatory injunction and on the issue of NCNG's
liability for trespass.
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***