Borders v. Yarbrough, 305

• Decision Date: 15 April 1953
• Docket Number: No. 305,305
• Citation: 237 N.C. 540,75 S.E.2d 541
• Parties: BORDERS, v. YARBROUGH.
• Court: North Carolina Supreme Court

Page 541

75 S.E.2d 541

237 N.C. 540

BORDERS, v. YARBROUGH.

No. 305

Supreme Court of North Carolina.

April 15, 1953

Horn & West, Shelby, for plaintiff, appellee.

Horace Kennedy, Shelby, for defendant, appellant.

PARKER, Justice.

The appellant in her brief makes only these contentions: First, that the description of an easement in the deed is too uncertain, vague and indefinite to permit identification with reasonable certainty of an easement; that the claimed easement is not apparent; and that the plaintiff does not allege in her complaint that her right to run a sewer line across defendant's lot is a way of necessity.

An easement is an interest in land, and is generally created by deed. Mordecai Law Lectures, Vol. 1, p. 464; Norfleet v. Cromwell, 64 N.C. 1; Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484. G.S. § 47-27 provides for the recordation of deeds of easements. 'Grantees take title to lands subject to duly recorded easements which have been granted by their predecessors in title. G.S. § 47-27; Walker v. Phelps, 202 N.C. 344, 162 S.E. 727; Norfleet v. Cromwell, 64 N.C. 1; Burgas v. Stoutz, 174 La. 586, 141 So. 67; J. T. Donohue Realty Co. v. Wagner, supra [154 Md. 588, 141 A. 337]; 28 C.J.S., Easements, § 24, page 676, et seq.' Waldrop v. Town of Brevard, 233 N.C. 26, 62 S.E.2d 512, 514. To the same effect 17 Am.Jur., Easements, Sec. 132.

'With reference to the manner of grant, the rule is that in describing an easement, all that is required is a description which identifies the land that is the subject of the easement and expresses the intention of the parties. No set form or particular words are necessary to grant an easement. As a general rule, any words clearly showing the intention to grant an easement which is by law grantable are sufficient. In easements, as in deeds generally, the intention of the parties is determined by a fair interpretation of the grant.' 17 Am.Jur., Easements, Sec. 25.

'An easement may be created by express grant. No particular words are necessary to constitute a grant, and any words which clearly show the intention to give an easement, which is by law grantable, are sufficient to effect that purpose, provided the language is certain and definite in its terms. * * * The instrument should describe with reasonable certainty the easement created and the dominant and servient tenements.' 28 C.J.S., Easements, § 24.

It is stated in 110 A.L.R. Annotation p. 175 'where the grant of an easement of way does not definitely locate it, it has been consistently held that a reasonable and convenient way for all parties is thereby implied, in view of all the circumstances,' (Citing numerous authorities); and also at p. 178 'It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant.'

The creation of an easement by deed must not be so uncertain, vague and indefinite as to prevent identification with reasonable certainty. Gruber, Inc. v. Eubank, 197 N.C. 280, 148 S.E. 246; Thompson v. Umberger, supra.

In Patton v. Western Carolina Educational Co., 101 N.C. 408, 8 S.E. 140, 141, a deed in the defendant's chain of title contained this clause: 'With the following reservation, that is to say, the said M. M. Patton reserves 33 feet for a street running from the cross street down L. Clayton's fence to J. P. Jordan's fence, then up Jordan's fence to the street that leads down to M. M. Patton's house.' Patton's deed to Jordan contained the following clause: 'And further, that the street now opened up through to the college land, thirty-three feet wide, shall be kept open.' This Court said: 'The reservation is not vague and uncertain, as * * * in Waugh v. Richardson, 30 N.C. 471 and McCormick v. Monroe, 46 N.C. 13, relied on by defendants.'

We have examined the original record in Bender v. American Tel. & Tel. Co., 201 N.C. 355, 160 S.E. 352, 353. The description in the conveyance of the right-of-way, an easement in land, is as follows: 'I hereby grant unto the said company, its associated and allied companies, their respective successors, assigns, lessees and agents, the right, privilege and authority to construct, reconstruct, operate and maintain lines of telephone and telegraph, consisting of such poles, wires, cables, conduits, guys, anchors and other fixtures and appurtenances as the grantee may from time to time require, upon, across and/or under the property...