Appeal by plaintiffs from a judgment entered 22 November 2004
by Judge Regina R. Parker in Washington County District Court.
Heard in the Court of Appeals 16 November 2005.
Geo. Thomas Davis, Jr. for plaintiff-appellants.
Manning Fulton & Skinner P.A., by William C. Smith, Jr., for
Lorraine Keener, William and Mildred McMillen, Fred and Teddy
Forsyth, Frank and Penelope Dawson, Jimmy Goodman, and Jane Moore
(plaintiffs) are owners of lots in or adjacent to the Arnolds Beach
Subdivision in Washington County. The subdivision was once owned
by Mr. and Mrs. E.O. Arnold (original grantors). Since the early
1960's, E.O. Arnold granted certain easement rights to some, but
not all, of the purchasers in the Subdivision. The language
granting the purported easements in each of the original deeds andgrants differed from deed to deed and was not consistent as to
extent, use, or recipient. Some plaintiffs had no easement granted
in their chain of title.
The disputed parcel is bounded on the north by the waters of
the Albemarle Sound, on the east by a lot owned by Frank and
Penelope Dawson, on the south by Arnold Beach Drive, and on the
west by a lot owned by Jimmy Goodman. The disputed parcel is
approximately 206 feet wide, but in 1994 the owner of the parcel,
Russell Arnold, sold to William and Sharon Arnold (defendants) an
81.65-foot-wide lot on the western edge of the parcel, bordering
the lot owned by Jimmy Goodman. The sale effectively created three
lots in the disputed parcel of land: (1) on the western edge of
the parcel there is an 81.65-foot-wide lot owned by defendants (WA
Lot); (2) on the eastern edge of the parcel there is a 100.71-foot-
wide lot owned by Russell Arnold upon which is located a boat ramp
(Boat Ramp Lot); and (3) between these two lots there is a 24.27-
foot-wide lot owned by Russell Arnold (RA Lot).
On 5 November 1999, plaintiffs filed a complaint alleging they
had an easement by grant or by prescription over the disputed
parcel of land and that defendants interfered with the easement
through the construction of a bulkhead, a pier and stobs, and other
acts. On 17 April 2002, the Honorable Samuel G. Grimes entered
summary judgment for the plaintiffs and defendants appealed Judge
Grimes' judgment to this Court. On 16 December 2003, this Court
found that genuine issues of material fact existed as to whether
plaintiffs had an easement over the disputed area and reversedJudge Grimes, remanding the matter for trial on the merits.
(See footnote 1)
matter was tried before the Honorable Regina R. Parker, sitting
without a jury, on 11 and 26 August 2004.
Plaintiffs appeal Judge Parker's judgment entered 22 November
2004 holding plaintiffs do not have an easement across defendants'
lot. The judgment further held plaintiff Jimmy Goodman held an
easement in gross across only the Boat Ramp Lot; plaintiffs
Lorraine Keener, Fred Forsyth, Teddy Forsyth, Frank Dawson and
Penelope Dawson have express easements to the Boat Ramp Lot only;
plaintiffs William McMillen, Mildred McMillen and Jane Moore have
no easement over the disputed parcel of land; and the portion of a
bulkhead permitted and installed by defendants and Russell Arnold
extending onto the Boat Ramp Lot must be removed. The trial court
noted that no judgment or opinion was entered regarding the RA Lot
because the lot's owner, Russell Arnold was not made a party to the
Plaintiffs raise four issues on appeal: (I) whether the trial
court erred in refusing to consider the testimony of Dr. Gene
Brothers on the grounds that it was irrelevant; (II) whether the
trial court erred in finding that plaintiff Goodman held only an
easement in gross that terminates at his death; (III) whether the
trial court erred in finding that plaintiffs William and Mildred
McMillen and Jane Moore have no easement at all; and (IV) whether
the trial court erred in refusing to rule that the plaintiffs havean easement along the RA Lot. Notably, while plaintiffs assign as
error the trial court's finding that they do not have an easement
over the defendants' lot, this assignment of error is not argued in
plaintiffs' brief and is therefore dismissed. N.C. R. App. P. Rule
28(b)(6) (2005) (Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.); see also,
State v. Drew
, 162 N.C. App. 682, 684, 592 S.E.2d 27, 29 (2004)
(when criminal defendant asserted eight assignments of error but
argued only two in his brief on appeal, remaining six were deemed
Plaintiffs first argue the trial court erred by refusing to
consider the testimony of Dr. Gene Brothers. At trial Dr. Brothers
was offered by plaintiffs and received by the court as an expert
witness in the area of designing and building and what area is
needed to fish, swim and launch boats in waterfront facilities.
Dr. Brothers' testimony spoke to the amount of the disputed parcel
that would be necessary for plaintiffs to enjoy the reasonable use
of their purported easements.
In its judgment, the trial court held [a]ll of Dr. Brothers'
testimony relied upon an evaluation of the evidence based on
today's standards and therefore, Dr. Brothers' testimony was not
relevant to the issues in this case. In making its findings, the
trial court [is] entitled to consider both expert and nonexpert
testimony. Uncontradicted expert testimony is not binding on thetrier of fact. Questions of credibility and the weight to be
accorded the evidence remain in the province of the finder of
facts. Scott v. Scott
, 336 N.C. 284, 291, 442 S.E.2d 493, 497
Dr. Brothers gave conflicting testimony as to the amount of
the parcel necessary for plaintiffs to reasonably enjoy their
easements. On direct-examination, Dr. Brothers testified that if
the entire 206-foot-wide parcel was not available to plaintiffs
their enjoyment of the easement would be diminished. However, Dr.
Brothers admitted on cross-examination that it was possible to
carry out all of the functions listed in plaintiffs purported
easements without ever straying off the 100.71-foot-wide Boat Ramp
Lot. Furthermore, non-expert testimony was presented to the trial
court that a 100-foot-wide easement would be sufficient for the
plaintiffs' full enjoyment of their easements. Therefore the trial
court could properly discount Dr. Brothers' testimony and not rely
on his testimony in its judgment.
This assignment of error is
II & III
Plaintiffs next argue the trial court erred in finding that
plaintiff Jimmy Goodman holds only an easement in gross in the Boat
Ramp Lot and that the easement he held terminates at his death and
that plaintiffs William and Mildred McMillen and Jane Moore have no
easement in the Boat Ramp Lot. The trial court further held that
plaintiffs Lorraine Keener, Fred and Teddy Forsyth, and Frank and
Penelope Dawson have an easement in the Boat Ramp Lot. However,the existence and scope of plaintiffs' easements were not properly
before the trial court and the court's holdings must be vacated.
The issue before the trial court was whether the plaintiffs'
had an easement over defendants' lot. In determining the scope and
extent of an easement, the trial court should be guided by the
following established law:
First, the scope of an express easement is
controlled by the terms of the conveyance if
the conveyance is precise as to this issue.
Second, if the conveyance speaks to the scope
of the easement in less than precise terms
(i.e., it is ambiguous), the scope may be
determined by reference to the attendant
circumstances, the situation of the parties,
and by the acts of the parties in the use of
the easement immediately following the grant.
Third, if the conveyance is silent as to the
scope of the easement, extrinsic evidence is
inadmissible as to the scope or extent of the
easement. However, in this latter situation, a
reasonable use is implied.
Swaim v. Simpson
, 120 N.C. App. 863, 864, 463 S.E.2d 785, 786-87
(1995) (quotations omitted). The trial court properly adjudicated
this issue, holding defendants own their 81.65-foot-wide lot free
and clear of any easements plaintiffs may have. As plaintiffs do
not argue this holding was in error, it is binding upon this Court.
Having found that plaintiffs easements do not attach to
defendants' lot, the trial court had no authority to inquire as to
the existence or scope of plaintiffs' easements attached to
property not owned by defendants. The easements in question attach
to property owned by Russell Arnold and therefore the scope, extent
and even existence of the easements affect the property rights ofRussell Arnold, who was not made a party to the plaintiffs'
lawsuit. The North Carolina Supreme Court has held:
[A] judgment rendered by a court against a
citizen affecting his vested rights in an
action or proceeding to which he is not a
party is absolutely void and may be treated as
a nullity whenever it is brought to the
attention of the Court. . . . In such case the
Court does not investigate the merits of the
matter in dispute, but sets aside the judgment
. . . .
Buncombe County Board of Health v. Brown
, 271 N.C. 401, 404, 156
S.E.2d 708, 710 (1967) (quotations omitted). The trial court
improperly determined the scope, extent and existence of easements
pertaining to the Boat Ramp lot, property whose owner was not
before the court. Accordingly, these assignments of error are
dismissed and the portions of the trial court's judgment regarding
plaintiffs' easements in the Boat Ramp Lot are vacated.
Finally, plaintiffs argue the trial court erred in refusing to
rule that plaintiffs have an easement running over the RA Lot. As
discussed in Issues II & III, supra
, the question of whether the
plaintiffs' easements attached to the RA Lot were not properly
before the trial court. Russell Arnold was not a party to this
action and the trial court properly refused to enter a judgment or
opinion as to whether plaintiffs' easements attached to the RA Lot.
This assignment of error is overruled.
Affirmed in part, vacated in part.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).