Benson v. Prevost

• Decision Date: 31 December 2020
• Docket Number: No. COA19-962,COA19-962
• Citation: 854 S.E.2d 56
• Parties: William E. BENSON, III, and wife, Monique L. Ribando, Plaintiffs, v. R. Lee PREVOST, and wife Scharme S. Prevost, Defendants and Third-Party Plaintiffs, v. Michael S. Burnham, Daniel Smith, and wife, Denise B. Smith, Third-Party Defendants.
• Court: North Carolina Court of Appeals

854 S.E.2d 56

William E. BENSON, III, and wife, Monique L. Ribando, Plaintiffs,

v.R. Lee PREVOST, and wife Scharme S. Prevost, Defendants and Third-Party Plaintiffs,

v.Michael S. Burnham, Daniel Smith, and wife, Denise B. Smith, Third-Party Defendants.

No. COA19-962

Court of Appeals of North Carolina.

Filed: December 31, 2020

Fox Rothschild LLP, by Robert H. Edmunds, Jr., Greensboro, and Elizabeth Brooks Scherer, Raleigh, for Plaintiff.

Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady Richardson, Jr., and Jennifer L. Carpenter, for Plaintiff.

Shipman & Wright, LLP, Wilmington, by Gary K. Shipman, for Defendants.

Block, Crouch, Keeter, Behm, & Sayed, LLP, Wilmington, by Auley M. Crouch, III, for Third-Party Defendants.

DILLON, Judge.

I. Background

This matter concerns a real property dispute between next-door neighbors who purchased their lots from Third-Party Defendants (the "Developers"). Developers originally owned the two lots and a third waterfront lots (Lots 1-3) at Wrightsville Beach, and adjacent dock with three boat slips (Slips A-C).

In 2015, Defendants R. Lee Prevost and Scharme S. Prevost purchased Lot 2 from the Developers. The conveyance also included exclusive use of a specific boat slip, Slip C, and the use of a driveway easement located on Lot 1 next door.

The following year, in 2016, Plaintiffs William E. Benson and Monique L. Ribando purchased Lot 1 from an affiliate of Developers,¹ the lot which was burdened by the driveway easement. The conveyance also included exclusive use of Slip A.

A dispute subsequently arose between the parties regarding Defendants’ parking of vehicles within the driveway easement. Also, a dispute arose regarding which party owned which boat slip.

Plaintiffs brought this action against Defendants to resolve their two disputes. After a hearing on the matter, the trial court entered summary judgment in favor of Defendants on both issues and awarded Defendants attorney's fees. Plaintiffs appeal.

II. Analysis

Summary judgment is appropriate when there is no genuine issue of material fact; and we review a summary judgment order de novo. Daughtridge v. Tanager Land, LLC , 373 N.C. 182, 186, 835 S.E.2d 411, 415 (2019) ; N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015). We address the two property issues and the attorney's fee issue in turn.

A. Driveway Easement

The parties dispute the "scope" of the parties’ rights to use the driveway easement (the "Easement") located on Lot 1.

In 2015, just prior to conveying any of the lots, the Developers recorded the Map below, which depicts the driveway easement shaded on Lot 1.

The recording of this Map did not actually convey anything, as both the dominant estate (Lot 2) and the servient estate (Lot 1) were still held by the same owner.

On 28 August 2015, shortly after Developers recorded the Map, they conveyed Lot 2 (with an existing home as depicted on the Map) to Defendants. The deed contained the following language, which also granted Defendants rights to the Easement depicted on the recorded Map:

Together with and subject to a Driveway Easement, shown as "Proposed Driveway Easement Area = 1050 S.F." [as recorded on the Map].

At the time Defendants purchased Lot 2, Lot 1 had not yet been developed. The garage area of the existing home on Lot 2 faced (and continues to face) the Easement, as shown in the photographs below. (These photos were offered as exhibits at the summary judgment hearing and were taken years later, after Lot 1 had been developed. The area depicted as the "Driveway Easement" in these photos do not appear to match the Easement as depicted on the Map.)

In 2016, the Developers constructed a home on Lot 1 and sold it to Plaintiffs. The photos show that Lot 1, as developed, contains a privacy wall adjacent to the part of the Easement that is now paved, a "back gate" which leads into Lot 1's back yard, and a "side gate" which accesses the home on Lot 1. The Developers built the home on Lot 1 with the garage on the side of the home opposite the Easement and is accessed by a different driveway (unrelated to the dispute), also on Lot 1.

Since purchasing Lot 2 in 2015, Defendants have made use of the Easement to access their garages and parking pad on Lot 2. They have also occasionally parked cars on the Easement. Sometime after purchasing Lot 1, Plaintiffs began protesting Defendants’ parking of vehicles within the Easement, contending it blocks their ability to access their back gate. For their part, Defendants contend that Plaintiffs have no right to drive vehicles on the Easement to access the back gate, as this use would interfere with Defendants’ Easement rights.

The trial court entered summary judgment in favor of Defendants on this issue. The court determined that Defendants and their successors "are entitled to make reasonable use of the [ ] Easement [as recorded on the Map]" and that the parking of vehicles is a reasonable use. Further, the trial court determined that Plaintiffs and their successors could only use the Easement to access their side and back gates by foot and not by a vehicle. For the below reasoning, we affirm as modified herein.

An easement is an interest in land and is subject to the statute of frauds. See N.C. Gen. Stat. § 22-2 (2015). An easement, like any other conveyance, "is to be construed in such a way as to effectuate the intention of the parties as gathered from the entire instrument " and not from detached portions. Higdon v. Davis , 315 N.C. 208, 215-16, 337 S.E.2d 543, 547 (1985) (emphasis added).

Here, the instrument defining the Easement is the recorded Map, referenced in the recorded deed to Defendants. See Collins v. Land Co. , 128 N.C. 563, 565, 39 S.E. 21, 22 (1901) ("[A] map or plat, referred to in a deed, becomes a part of the deed, as if it were written therein[.]"). When Plaintiffs purchased Lot 1, they took title subject to Defendants’ Easement rights as recorded. Borders v. Yarbrough , 237 N.C. 540, 542, 75 S.E.2d 541, 543 (1953) ("Grantees take title to lands subject to duly recorded easements which have been granted by their predecessors in title.").

The Map referenced in the Developers deed to Defendants unambiguously marks the specific location of the Easement. The Easement is depicted as the shaded area on Lot 1, adjacent to its shared property line with Lot 2. The Map describes the shaded area to be "Area 1,060 S.F.", which appears to be accurate: the area forms a trapezoid, with the average length from the street being a slightly over fifty (50) feet and the average width being a slightly over twenty (20) feet. Neither party makes any argument that the location of the Easement is not as described on the Map or has been relocated. See Cooke v. Wake Electric , 245 N.C. 453, 458, 96 S.E.2d 351, 354 (1957). Therefore, the location of the Easement is as described in the Map.

There is no clear language, however, defining the scope of Defendants’ rights to use the Easement beyond the language labeling the shaded area on the Map as a "Proposed Driveway Easement" and the reference in the deed Defendants conveying the Easement rights as a "Driveway Easement."

Our task is to determine whether the intent of the parties regarding the Easement's scope – specifically whether Defendants can park vehicles in the Easement – can be gleaned from these recorded instruments. We note that our Court has instructed that if the language in an easement is ambiguous as to its scope:

[T]he 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 [but that] 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 the latter situation, a reasonable use is implied.

Swaim v. Simpson , 120 N.C. App. 863, 864, 463 S.E.2d 785, 786 (1995). Also, our Supreme Court has instructed that an easement extends to all "uses directly or incidentally conducive to the advancement of the purpose for which the right of way was acquired, and the owner retains merely the title in fee, carrying the right to make such use as in no way interferes with the full and free exercise of the easement." Light Co. v. Bowman , 229 N.C. 682, 688, 51 S.E.2d 191, 195 (1949) (citation omitted).

It is unambiguous that the purpose of the easement is to allow Defendants to use the Easement as a "driveway." What is less clear is whether "driveway" use includes the right to park vehicles in the Easement or simply the right to use the driveway for ingress and egress between the road and Lot 2. There is no express language which restricts the use of the driveway easement for "ingress and egress." We note that many driveways are used also to park cars, while others are used generally only for just ingress and egress based on their width.

Looking at the Map as a whole , we conclude that the trial court correctly determined that the scope of Defendants’ rights includes the right to park vehicles in parts of the Easement area. We are persuaded in large part by the fact that the Easement, as defined in the Map, is on average over twenty (20) feet wide. We are also persuaded by the fact that the Easement is short and immediately adjacent (close to) Defendants’ home, as shown on the Map. A narrower driveway easement would suggest an intent by the grantor that it be used only for ingress and egress. But the creation of a driveway easement that is approximately twenty (20) feet wide to be used by the owner of a vacation home, especially where the easement is close to the home, suggests an intent that the "driveway" use also includes the right to park cars, at least on occasion. This right, though, does not extend to the parking of cars in a way which obstructs the entire width of the Easement as shown on the Map , as such use would prevent the owner of the servient estate an opportunity to make reasonable use of that part of their property.

There...