Adams v. Severt

• Decision Date: 06 March 1979
• Docket Number: No. 7823DC137,7823DC137
• Citation: 40 N.C.App. 247,252 S.E.2d 276
• Court: North Carolina Court of Appeals
• Parties: Labon Franklin ADAMS and wife, Mary Ann Adams v. Odell SEVERT and wife, Annie Mae Severt, Howard Wyatt, Jr. and wife, Mae Wyatt.

Page 276

252 S.E.2d 276

40 N.C.App. 247

Labon Franklin ADAMS and wife, Mary Ann Adams v. Odell SEVERT and wife, Annie Mae Severt, Howard Wyatt, Jr. and wife, Mae Wyatt.

No. 7823DC137.

Court of Appeals of North Carolina.

March 6, 1979.

Franklin Smith, Elkin, for plaintiffs-appellants.

George G. Cunningham, Wilkesboro, for defendants-appellees Howard Wyatt, Jr. and wife, Mae Wyatt.

ERWIN, Judge.

The only question presented for our determination on this record is: "Whether the trial court committed error in granting the defendants Wyatt's motion for summary judgment upon the evidence presented by the defendants Wyatt?"

R. G. Adams and wife conveyed two adjoining parcels of land, one to John Adams and wife and the other to Odell Severt and wife. These two parcels apparently blocked off the remaining lands of R. G. Adams from a local road, and each of these deeds reserved a right-of-way across the land conveyed which was stated on the deeds as follows: "(A) right of way in perpetuity for a roadway to connect with the County road across the above lands, for the use and benefit of the remaining lands of the grantors." The trial court concluded "that the Plaintiff's (sic) own pleadings and affidavits failed to show that an easement by prescription could have been acquired."

A roadway is an easement constituting an interest in land, and in order to create such easement by deed or reservation contained in a deed, the description thereof must be sufficiently certain to permit the identification and location of the easement with reasonable certainty. Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484 (1942), and Gruber v. Eubank, 197 N.C. 280, 148 S.E. 246 (1929).

We hold that the language used in the deeds in question is too ambiguous and uncertain to create a roadway across the property in question. The identity of such interest in the land would of necessity rest in conjecture and speculation, which the law does not allow.

Plaintiffs rely on Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973), and Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541 (1953), for upholding the description in their deeds. These cases are distinguishable. In Hensley, Id. 283 N.C. at 719, 199 S.E.2d at 4, the deed explicitly stated, "including a right-of-way to a road across said Duncan's lot along said Lankford's Line." Thus, an extrinsic object was specifically referred to in the deed.

In Borders v. Yarbrough, supra, a common sewerage line ran to the disposal in the street, and this condition existed before the parties acquired their respective lots. Our Supreme Court held that under these circumstances, the way was sufficiently located. Here the location of the easement is not so certain. The deed gives no beginning point and furnishes no means by which the location of the proposed way may be ascertained. See Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484 (1942). The ambiguity is a patent one. Hence, the attempted conveyance or reservation is void for uncertainty. Thompson v. Umberger, supra.

Plaintiffs also allege that the trial court erred in allowing summary judgment as to their claim of title by prescription. We do not agree. A party asserting an easement by prescription has the burden of proving all the elements essential to its acquisition including that his use of the easement was continuous and uninterrupted for twenty years. Nicholas v. Furniture Co., 248 N.C. 462, 103 S.E.2d 837 (1958), and Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153 (1937). Plaintiffs' evidence, viewed in the light most favorable to them, shows possession for only eighteen years.

Finally, plaintiffs raise a question of adverse possession under color of title. See G.S. 1-38. This claim is also without merit. Color of title is that which gives the semblance or appearance of title, but is not title in fact that which on its face, professes to pass title, but fails to do so because of a want of title in the person from whom it comes or the employment of an ineffective means of conveyance. Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973). Plaintiffs' attempted reservation of an easement did not constitute "color of...