Brown v. Weaver-Rogers Associates, Inc., COA97-1413.
| Decision Date | 06 October 1998 |
| Docket Number | No. COA97-1413.,COA97-1413. |
| Citation | 505 S.E.2d 322,131 NC App. 120 |
| Court | North Carolina Court of Appeals |
| Parties | William R. BROWN, II, Plaintiff, v. WEAVER-ROGERS ASSOCIATES, INC.; Douglas W. Jones and wife, Deborah G. Jones; Gary D. Helton and wife, Nancy Bauer Helton; Hui-Ming Sun and wife, Meei-Ing Sun; Paul V. Pickering and wife, Allison D. Pickering; Donald A. Farrell and wife, Cecilia M. Farrell, Gloria J. Koch; John Snider Wilkins and wife, Patricia M. Wilkins; Mahmoud R. Husein and wife, Ibtisam Husein; Hal Wade Ingram and wife, Carol Strange Ingram; Bruce Allen Huffman and wife, Kathryn Ellen Huffman; Terrell R. Brooks; Robert Joseph Metcalf and wife, Jean C. Metcalf; Gilbert K. Lyttle and wife, Terry C. Sterling; Ali Ghoddoussi and wife, Azar Ghoddoussi; Herbert E. Foreman and wife, Margaret V. Foreman; Paul David Hawkins and wife, Danielle D. Hawkins, Defendants. |
Michael W. Strickland & Associates, P.A. by Nelson G. Harris, Raleigh, for plaintiff-appellant and defendant-appellants Ghoddoussi.
Burns, Day & Presnell, P.A. by Lacy M. Presnell, III, and Susan F. Vick, Raleigh; Higgins, Frankstone, Graves & Morris by Thomas D. Higgins, Jr., Chapel Hill, for defendant-appellees Sun.
W. Hugh Thompson, Raleigh, for defendant-appellees Jones.
Boxley, Bolton & Garber by Ronald H. Garber, Raleigh, for defendant-appellees Pickering.
Plaintiff brought this action seeking a declaration of his rights under a purported deed of easement. Plaintiff alleged that he has the right, pursuant to the deed of easement, to open a public thoroughfare across lots, located in Stone Creek Subdivision (Stone Creek), which are owned by some of the defendants. Answers filed on behalf of various defendants included affirmative defenses alleging termination, abandonment, and withdrawal of the easement, as well as champerty and maintenance.
The parties agreed that the trial court should determine the issue of the validity of the deed of easement, before proceeding with a trial upon the issues raised by the affirmative defenses. The matter was submitted upon stipulated facts and documents which, as pertinent to the issues raised by this appeal, show that Quinton J. Kelly and his wife, Willie H. Kelly, executed the original deed of easement to Joe S. Jones, Jr., on 13 March 1970. The Kellys owned land which was eventually subdivided into lots within Stone Creek; Jones owned an adjacent tract which was also subdivided into lots. Pursuant to the language of the deed of easement, the Kellys granted:
unto Joe S. Jones, Jr., his heirs and assigns, the right, privilege and easement, now and hereafter to construct, improve, inspect, maintain and repair a roadway, which shall be a public thoroughfare, upon and across ...
a forty (40) foot strip of land which is specifically described by metes and bounds in the deed of easement as follows:
Beginning at a point in the center line of SR 1844, a corner with Lowery, and running thence South 3 degrees 00' 2191.71 feet to a stake on the east side of Still Creek; running thence North 89 degrees 15' West 40 feet to a point; running thence North 3 degrees 00' East 2191.71 feet to a point in the center line of SR 1844; and running thence with said center line of said road South 80 degrees East 40 feet to the point of Beginning, and being a forty-foot strip along the easternmost line of the tract of land conveyed by Minton Lowery to Quinton J. Kelly and wife, Willie H. Kelly, by deed recorded in Book 1810, page 423, as corrected by Deed of Correction in Book 1857, Page 629, all in Wake County Registry.
The easement appears upon the plat of Stone Creek subdivision, recorded in Book of Maps 1972, Page 425, Wake County Registry and upon the plat of the Property of Joe S. Jones, Jr., recorded in Book of Maps 1986, Page 524, Wake County Registry. The easement, shown as a "40' Access Easement" on the Stone Creek plat, crosses the eastern portions of nine lots located within Stone Creek; it is adjacent to an additional twenty foot strip shown on the Jones plat so as to provide a sixty foot right of way adjacent to the western boundaries of Lots 1-10 of the Jones subdivision.
Plaintiff is a successor in title to Joe S. Jones, Jr., having purchased lot 1 in the Jones subdivision on 16 August 1994. Defendants are the record owners of lots in the Stone Creek subdivision which are affected by the purported easement, as well as the record owners of lots 2—10 of the Jones subdivision.
The trial court found the facts to be as stipulated and concluded that because the deed of easement did not contain a description of a dominant estate, it was "ineffectual and void." The trial court entered a final judgment declaring the deed of easement to be of no force and effect and "a burden on no land." Plaintiff and defendants Ghoddoussi gave notice of appeal.
Appellants contend the trial court erred in concluding that the deed of easement is ineffectual and void, because it contains no description of a dominant estate. While it is true that deeds of easement must reasonably identify the easement, the servient and the dominant tenements, we hold that extrinsic evidence may be considered in locating the dominant estate when the deed of easement clearly describes the easement itself and the servient estate. In this case, the stipulated facts contained extrinsic evidence which clearly point to the property in the Jones Subdivision as the dominant estate; thus, the trial court erred in nullifying the deed of easement for its failure to locate the dominant estate.
Deeds of easement are construed according to the rules for construction of contracts so as to ascertain the intention of the parties as gathered from the entire instrument at the time it was made. Higdon v. Davis, 315 N.C. 208, 337 S.E.2d 543 (1985). When "there is any doubt entertained as to the real intention," the court should construe the deed of easement with "reason and common sense" and adopt the interpretation which produces the usual and just result. Hine v. Blumenthal, 239 N.C. 537, 547, 80 S.E.2d 458, 466 (1954); Hundley v. Michael, 105 N.C.App. 432, 435, 413 S.E.2d 296, 298 (1992).
An easement appurtenant is a right to use the land of another, i.e., the servient estate, granted to one who also holds title to the land benefitted by the easement, i.e., the dominant estate. Webster, Real Estate Law in North Carolina §§ 15-3, 15-4 (1994). The easement attaches to the dominant estate and passes with the transfer of the dominant estate as "an appurtenance thereof." Shingleton v. State, 260 N.C. 451, 454, 133 S.E.2d 183, 185 (1963). It cannot exist apart from the dominant estate. Id. If an easement is created without a dominant estate, it is known as an "easement in gross" and is a purely personal license granted to use the land of another; it is not appurtenant to any land and usually ends with the death of the grantee. Waters v. North Carolina Phosphate Corp., 310 N.C. 438, 443, 312 S.E.2d 428, 433 (1984); Shingleton, supra; Gibbs v. Wright, 17 N.C.App. 495, 195 S.E.2d 40 (1973). Once an easement appurtenant is properly created, it runs with the land and is not personal to the landowner. Yount v. Lowe, 288 N.C. 90, 215 S.E.2d 563 (1975); Wiggins v. Short, 122 N.C.App. 322, 469 S.E.2d 571 (1996); Gibbs, supra.
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