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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STONECREEK SEWER ASSOCIATION, MITCHELL K. WOODY and wife, SHERRI
WOODY, GEORGE W. GOULD and wife, SHARON GOULD, DANNY DEWITT
BURNETT and wife, LINDA DARLENE BURNETT, DAVID RICHARD KINDLEY
and wife, JULIE FORE KINDLEY, TERESA E. WHITMIRE, CHRISTOPHER T.
MALL, PERRY R. SCOTT and wife, GAIL E. SCOTT, Plaintiffs, v. GARY
D. MORGAN DEVELOPER, INC., GARY D. MORGAN, VIRGINIA W. MORGAN,
HARVEY H. MOORE and wife, DORIS W. MOORE, Defendants
Filed: 17 October 2006
1. Easements_sewer system_findings supported by evidence
The evidence supported the findings in a dispute over the existence of a nonexclusive
easement over defendant's land for the operation of a sewer system.
2. Easements_sewer system_conclusions_supported by findings
In a dispute over the existence of a nonexclusive easement over defendants' land for the
operation of a sewer system, the evidence supported conclusions that the easement's language is
not ambiguous, that it clearly states its plat and purpose as being for the operation of a sewage
treatment plant, and that plaintiffs, as successors in interest and assigns, own an express non-
Appeal by defendants Harvey H. and Doris W. Moore from
judgment entered 1 July 2005 by Judge Laura J. Bridges in Henderson
County Superior Court. Heard in the Court of Appeals 20 September
Roberts & Stevens, P.A., by William Clarke, for plaintiffs-
No brief filed for defendants-appellees Gary D. Morgan
Developer, Inc., Gary D. Morgan, and Virginia W. Morgan.
Sharon B. Alexander, for defendants-appellants.
Harvey H. and Doris W. Moore (the Moores) appeal from order
entered holding Stonecreek Sewer Association, Mitchell K. and
Sherri Woody, George W. and Sharon Gould, Danny Dewitt and LindaDarlene Burnett, David Richard and Julie Fore Kindley, Teresa E.
Whitmire, Christopher T. Mall, Perry R. and Gail E. Scott
(collectively, plaintiffs), property owners for lots 1, 3, 5, 7,
9, 11, and 13, own a non-exclusive easement on the Moores's
property. We affirm.
On 10 May 1989, the Moores conveyed an express easement to
Gary D. Morgan Developer, Inc. (Morgan) for constructing,
maintaining, repairing, replacing, expanding and otherwise dealing
with a sewage treatment plant[.] The deed contained the following
It is understood that [Morgan], its successors
in interest and assigns, shall not provide
sewage services using the easement and right
of way tract and sewer line easement specified
in this instrument other than to Lots 1, 3, 5,
7, 9, 11, 13, & 15 of Stone Creek Subdivision
as shown on the plat recorded in Plat Slide
536, Henderson County Registry.
It is expressly acknowledged, confirmed and
agreed by [the Moores], their heirs and
assigns, and [Morgan] herein, its successors
in interest, assigns and future Grantees, that
[Morgan], its successors in interest and
assigns, plans to construct a sewage treatment
facility on the above described easement and
right of way tract. As a part of the
consideration for this conveyance, [the
Moores] hereby convey [sic], and [Morgan]
hereby accepts this deed SUBJECT to the
restriction, which shall run with the said
tract of land, that said tract of land as
described herein shall be used and possessed
by [Morgan], its successors, assigns and
future Grantees, only for the purpose of
location and operation of said sewage
treatment plant or facility as previously
referred to herein.
That in the event [Morgan], its successors,
assigns or future Grantees, cease to use said
tract of land for the location and operation
of said sewage treatment plant or facility
as referred to and defined herein, then, in
that event, the easement and right of way for
the use and possession of said tract of land
and the sewer line easement, together with all
easements and improvements hereon, shall
automatically revert to [the Moores], their
heirs and assigns, immediately; and [the
Moores], their heirs and assigns, shall have
the immediate right to re-enter said premises
and to possess the same.
On 11 May 1989, Morgan conveyed an easement (the Agreement)
to Stone Creek Subdivision Lot Owners three and five to use the
sewage treatment facility. On 12 May 1989, Henderson County Health
Department (the Health Department) granted Morgan a septic tank
system improvements permit to install system per Lapsley plans.
On 2 January 1990, the Health Department approved Morgan's septic
tank installation because it was installed close enough to the
plans by William G. Lapsley & Associates to be acceptable.
On or about 13 April 2000, a leak occurred in the force main
leading to the septic drain field causing water to back up in the
sewage treatment system. The Moores and Morgan prevented
plaintiffs from entering the property to repair the leak. On 17
April 2000, plaintiffs filed a complaint and petition for
declaratory judgment against the Moores and Morgan. Later that
day, the trial court granted an ex parte temporary restraining
order that prohibited the Moores and Morgan from harming,
assaulting, or interfering with plaintiffs entering the septicdrainfield to inspect and repair the sanitary sewage system. On 15
September 2001, plaintiffs voluntarily dismissed their complaint.
On 10 September 2002, the Health Department sent a letter to
plaintiffs stating, [t]he septic system was found to be
malfunctioning (sewage on the ground surface) and in poor state of
disrepair. The Health Department required plaintiffs to repair
the septic system within thirty days, or it would take legal
On 26 September 2002, plaintiffs filed a complaint against and
the Moores and Morgan for declaration of an easement, a temporary
restraining order, a preliminary injunction, a permanent injunction
and punitive damages. On 18 October 2002, the trial court granted
an ex parte temporary restraining order that prohibited the Moores
and Morgan from harming, assaulting, or interfering with plaintiffs
inspecting and repairing the sanitary sewage system to correct the
current malfunction. On 14 October 2002, the trial court entered
a consent order. The parties agreed, without prejudice to any of
the parties, that plaintiffs may enter the Moores's property to
inspect and repair the septic systems. On 26 March 2003, the
Health Department issued an operating permit to plaintiffs to mow
the septic tank drain field.
On 21 February 2005, the parties stipulated to the trial court
the issues in this action are:
(1) [w]hat rights (if any) do the Plaintiffs,
their successors in title, now have relative
to the said 2.03 acre tract by virtue of the
non-exclusive right of way and easement
created by that instrument recorded in Deed
Book 737 at Page 481, Henderson CountyRegistry; and (2) [w]hat rights (if any) do
Defendants Moore, their successors in title,
now have relative to the said 2.03 [sic] acre
The parties agreed for the trial court to determine these issues,
and waived their right to a jury trial.
On 31 July 2005, the trial court ordered: (1) plaintiffs own
a non-exclusive easement in the 2.03 [sic] acre tract owned by
defendants; (2) plaintiffs shall continue to operate, maintain,
repair and replace, if necessary, the waste water treatment system,
plant or facility on said property; (3) plaintiffs have the right
to mow that portion of the 2.03 [sic] acre tract; and (4)
defendants may make reasonable use of the 2.03 [sic] acre tract,
provided such use shall not unreasonably interfere with plaintiffs'
ability to operate the waste water treatment system, plant or
facility located thereon. The Moores appeal.
The Moores argue: (1) the evidence fails to support the
findings of fact; (2) the findings of fact fail to support the
conclusions of law; (3) the findings of fact and conclusions of law
fail to support the judgment; (4) plaintiffs do not own an easement
encumbering their property for use of a septic drain field; and (5)
any easement created was extinguished and title reverted to them.
III. Standard of Review
The standard of review on appeal from a non-jury trial is
'whether there was competent evidence to support the trial court's
findings of fact and whether its conclusions of law were proper in
light of such facts.' East Market Square Street, Inc. v. TycorpPizza IV, Inc., 175 N.C. App. 628, 632, 625 S.E.2d 191, 196 (2006)
(quoting Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418
S.E.2d 841, 845 (1992)). Where the trial court sits without a
jury, its findings of fact have the force and effect of a jury
verdict and are conclusive on appeal if there is evidence to
support those findings. Id. (quotations omitted).
The court's findings of fact are conclusive if
supported by [substantial] evidence, and
judgment supported by them will be affirmed
even though there is evidence contra. Where
there is no evidence to support an essential
finding of fact, however, and where
conclusions are not supported by sufficient
factual findings, the judgment cannot be
Spivey v. Porter, 65 N.C. App. 818, 819, 310 S.E.2d 369, 370 (1984)
(citation omitted). We review the trial court's conclusions of law
de novo. East Market Square Street, 175 N.C. App. at 632, 625
S.E.2d at 196.
IV. Whether Evidence Supports Findings
 The Moores argue the evidence fails to support the
following findings of fact:
1. The easement deed dated May 10, 1989, and
recorded in Deed Book 737 at page 481,
Henderson County Registry, is based on the
Waste Water Treatment System for Lots 1, 3, 5,
7, 9, 11, 13, and 15 of Stonecreek
Subdivision, Henderson County, North Carolina,
drawn by William G. Lapsley & Associates,
P.A., Consulting Engineers & Land Surveyors in
March 1989 as job 89124 approximately two
months before the easement deed was dated and
. . . .
6. The Agreement and Sewer Easement dated May
11, 1989 and recorded in Deed Book 737 at page639, Henderson County Registry, is based on
the Waste Water Treatment System proposed in
March 1989 which was substantially installed
and operation implemented. Said system being
approved by the . . . Health Department with
its permit on January 2, 1990.
. . . .
9. The Lots were sold to prospective owners
who relied on the rights of way, and easements
for waste water treatment system, plant or
facility which was installed due to each of
the Lots inability to sustain a septic tank
. . . .
11. That Harvey H. Moore and Ricky Moore were
closely involved in Gary Morgan Developer,
Inc. as Ricky Moore was vice-president and
Harvey H. Moore was secretary of said
. . . .
13. After the abandonment of said waste water
treatment system, Plaintiff were required to
create the Stonecreek Sewer Association to
operate the system, plant or facility and to
keep said waste water treatment system
repaired and operating.
14. The language in the easement deed
regarding the easement at issue and its
purpose is not ambiguous when read in context
with the Waste Water System developed by
Lapsley and Associates, the . . . Health
sewage system permits and the attendant
15. The Plaintiffs' use of the Plaintiffs'
easement on the 2.03 [sic] acre tract as a
waste water system, plant, facility is exactly
as intended by the easement deed.
The Moores assign error to findings of fact numbered 1, 2, 6,
7, 9, 11, 13, 14, and 15, but failed to present an argument to
challenge findings of fact numbered 2 and 7. Findings of factnumbered 2 and 7 are binding on appeal and the Moores's assignments
of error to these findings are deemed abandoned. See N.C.R. App.
P. 28(b)(6) (2006) (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.).
The Moores contend the record does not contain evidence that
the easement deed is based upon the plans drawn by William G.
Lapsley & Associates, P.A. marked by them on appeal as Exhibit B.
On 12 May 1989, the Health Department approved Morgan's permit for
septic tank system construction to be install[ed] . . . per
Lapsley plans. On 2 January 1990, the Health Department approved
Morgan's operations permit for the septic system because it was
installed close enough to the plans by William G. Lapsley &
Associates to be acceptable. Finding of fact numbered 1 is
supported by competent evidence. The Moores's assignment of error
The Moores contend the record does not contain evidence that
the Agreement is based upon Lapsley's plans. The Moores's septic
tank improvement permit states they must install [the] system per
Lapsley plans. The Moores's operations permit states the septic
tank pump was [i]nstalled close enough to the plans by William G.
Lapsley & Associates to be acceptable. Both of these documents
were properly admitted into evidence. Competent evidence supports
finding of fact numbered 6. The Moores's assignment of error is
overruled. The Moores contend the record fails to contain evidence that
prospective purchasers relied on the right of way and easement for
the waste water treatment system, plant, or facility. The parties
[t]he Lots are served by a common sanitary
sewer system which collects wastewater from
the individual homes, transports it to a pump
station located on Lot 1 (Plaintiff Woody's
Lot) and transfers it via a force main under
McDowell Road to the 2.03 [sic] acre tract,
upon which is installed a septic drain
The Moores' deed of easement was recorded on 10 May 1989. The
Moores's and plaintiffs' predecessor-in-interest's Agreement was
recorded 12 May 1989. Plaintiffs' individual septic tanks cannot
function without the sewage treatment plant on the Moores's
property. Competent evidence shows plaintiffs relied upon the
sewage treatment plant when they purchased Stone Creek lots 1, 3,
5, 7, 9, 11, and 13 to support the trial court's finding of fact
numbered 9. The Moores's assignment of error is overruled.
The Moores argue the record does not contain evidence that
Harvey H. Moore and Ricky Moore were closely involved with Morgan.
The Moores granted the easement to Morgan for the construction and
maintenance of a sewage treatment facility. The Moores executed
the Agreement as Secretary of Gary Morgan Developer, Inc. Evidence
in the record shows that Doris W. Moore, Harvey H. Moore's wife, is
also Gary Morgan's mother. Ricky Moore executed the Agreement as
Vice President of Gary Morgan Developer, Inc. Competent evidence
shows Harvey H. Moore and Ricky Moore are closely related to GaryMorgan, Developer, Inc. to support the trial court's finding of
fact numbered 11. The Moores's assignment of error is overruled.
The Moores contend plaintiffs were not required to create the
Stonecreek Sewer Association. The parties stipulated that [t]his
action was instituted in the District Court Division by an
unincorporated Stonecreek Sewer Association. The members of
Stonecreek Sewer Association are the property owners for Lots 1, 3,
5, 7, 9, 11, and 13. This stipulation shows Stonecreek Sewer
Association was created for the purposes alleged in plaintiffs'
complaint to support the trial court's finding of fact numbered 13.
The Moores's assignment of error is overruled.
The Moores argue the record fails to show the easement deed's
language was not ambiguous. The Moores stipulated:
[d]efendants Moore . . . grant[ed] to
Defendant Gary D. Morgan Developer, Inc. a
non-exclusive right of way and easement
agreement to run a sewer line and to operate a
sewage treatment plant or sewage treatment
facility on a 2.03 acre tract that was and is
owned in fee simple by Defendants Moore as
tenants by the entirety.
The Moores stipulated to the purpose of the easement contained in
the easement's express language. Competent evidence supports the
trial court's finding of fact numbered 14. The trial court's
conclusion of law that the easement is not ambiguous is affirmed.
The Moores contend the record does not contain evidence
plaintiffs have used the easement as intended. The easement deed
states that Gary D. Morgan, Developer Inc. shall not provide sewage
services other than to lots 1, 3, 5, 7, 9, 11, 13, and 15.
Plaintiffs' predecessor-in-interest for lots 3 and 5 contractedwith the Moores in the Agreement to be connected with the Moores'
sewage treatment facility. Competent evidence shows plaintiffs
have and are using the easement exactly for the purposes intended.
The Moores's assignment of error is overruled. As all findings of
fact challenged by the Moores are supported by substantial evidence
in the record, we now review the challenged conclusions of law de
novo. East Market Square Street, 175 N.C. App. at 632 625 S.E.2d
V. Whether Findings Support Conclusions
 The Moores argue the following conclusions of law are
2. Plaintiffs, their successors and assigns
have a non-exclusive easement to continue the
operation and maintenance of the waste water
treatment system, plant or facility on the
2.03 tract owned by the Defendants, Harvey H.
Moore and wife, Doris W. Moore.
3. The language of the right of way and
easement dated May 10, 1989, recorded in Deed
Book 737 at page 481, Henderson County
Registry, is ambiguous unless read in context
with the Waste Water Treatment System
developed in March 1989 some two months before
the drafting and of recording of the right of
way and easement and the Henderson County
Health sewage system permits issued May 11,
1989 and January 2, 1990, stating the location
and implementation of the waste water
4. It is clear from the attendant
circumstances and documents that the parties
to the easement document immediately prior to
and following the grant of that easement,
intended the document to allow the
installation of a waste water treatment
system, plant or facility as developed by
Lapsley and Associates which uses a collection
system pumped to drainage fields or as statedon Lapsley's plan a ground absorption
. . . .
6. That the owners of said Lots purchased said
Lots in reliance on the rights of way and
easements of record and in reliance on said
corporation operating and maintaining the
waste water sewer system as their individual
lots could not sustain individual septic tank
A. Express Easement
Our Supreme Court has succinctly stated the standard of review
and construction of an easement:
An easement deed, such as the one in the case
at bar, is, of course, a contract. 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.
Weyerhaeuser Company v. Carolina Power & Light Company, 257 N.C.
717, 719, 127 S.E.2d 539, 541 (1962). The intention of the
parties is to be gathered from the entire instrument and not from
detached portions. Id.
If the scope and extent of an easement is contested, the
following rules apply:
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 thescope 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), aff'd per curiam, 343 N.C. 298, 469 S.E.2d 553 (1996).
When the instrument creating an express easement describes the
extent of the easement with precision, the plain language and terms
of the easement control. Williams v. Abernethy, 102 N.C. App. 462,
464-65, 402 S.E.2d 438, 440 (1991).
On 10 May 1989, the Moores conveyed the easement to Morgan.
The easement's stated purpose was for:
constructing, maintaining, repairing,
replacing, expanding and otherwise dealing
with a sewage treatment plant, including all
rights of attachment and full utilization of
said sewage treatment plant and all plumbing
necessary to accomplish the same, said sewage
treatment plant facility and easement and
right of way parcel described as follows: . .
. . Said easement and right of way tract is
2.003 acres, more or less, and is located on a
portion of that property recorded in Deed Book
716, at Page 743, Henderson County Registry.
There also is CONVEYED to [Morgan] . . . a
thirty foot wide sewer line easement[.]
The easement deed plainly states Morgan shall use this easement for
a sewage treatment plant, sewage treatment plant facility, a sewage
treatment facility, or a sewage treatment plant or facility. The
Moores intended for Morgan, its successors in interest and
assigns, to use the 2.003 acres conveyed in the easement deed for
the purposes of a sewage treatment plant or facility. The
easement's language is not ambiguous and clearly states theeasement's plat and purpose was for operation of a sewage treatment
The easement deed was properly recorded, and subsequent
purchasers were put on notice that their septic tank systems were
connected to the sewage treatment system on the Moores's property.
The trial court did not err in concluding the easement clearly and
unambiguously stated Morgan shall use the easement for the
construction, maintenance, and operation of a sewage treatment
plant system. The Moores's assignment of error is overruled.
The Moores argue the trial court erroneously concluded that
plaintiffs own an easement encumbering their property to use a
septic drain field. An express easement must be 'sufficiently
certain to permit the identification and location of the easement
with reasonable certainty.' Wiggins v. Short, 122 N.C. App. 322,
327, 469 S.E.2d 571, 575 (1996) (quoting Adams v. Severt, 40 N.C.
App. 247, 249, 252 S.E.2d 276, 278 (1979)). The description 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,
The Moores granted to Morgan, its successors in interest and
assigns, a non-exclusive perpetual easement . . . for purposes of
constructing . . . and otherwise dealing with a sewage treatment
plant[.] The easement specifically stated Morgan shall not
provide sewage services using the easement and right of way tractand sewer line easement . . . other than to Lots 1, 3, 5, 7, 9, 11,
13 & 15 of Stone Creek Subdivision as shown on the plat recorded
Plat Slide 536, Henderson County Registry.
Plaintiffs, as successors in interest and assigns of
defendant Gary D. Morgan, Developer, Inc., own an express non-
exclusive easement because: (1) their lots are specifically stated
in the easement; (2) they are successors in interest and assigns to
Morgan's easement; (3) the plat and easement was properly recorded;
(4) plaintiffs' lots are served by a common sanitary sewer system
which collects wastewater from the individual homes, transports it
to the property specified in the easement; and (5) plaintiffs
relied upon the easement for a sewer treatment system in purchasing
The easement clearly states its intent is to provide a sewage
treatment system to plaintiffs. Plaintiffs, as Morgan's
successors in interest and assigns, have not ceased to use the
tract of land for the location and operation of the sewage
treatment plant or facility. The trial court did not err in
enforcing plaintiffs' non-exclusive easement in the Moores's 2.003
acre tract. The Moores's assignment of error is overruled.
Substantial evidence in the record supports the trial court's
findings of fact. These findings of fact support the trial court's
conclusions of law.
The trial court did not err in ordering plaintiffs own a non-
exclusive easement in the 2.003 acre tract owned by the Moores. The trial court did not err in ordering plaintiffs shall continue
to operate, maintain, repair, and replace the waste water treatment
system and shall have a right to mow the 2.003 acre tract. The
trial court's judgment is affirmed.
Judges BRYANT and LEVINSON concur.
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