Builders Supplies Co. of Goldsboro, N. C., Inc. v. Gainey, 42

• Decision Date: 15 November 1972
• Docket Number: No. 42,42
• Citation: 192 S.E.2d 449,282 N.C. 261
• Parties: BUILDERS SUPPLIES COMPANY OF GOLDSBORO, NORTH CAROLINA, INC. v. Norwood A. GAINEY.
• Court: North Carolina Supreme Court

Page 449

192 S.E.2d 449

282 N.C. 261

BUILDERS SUPPLIES COMPANY OF GOLDSBORO, NORTH CAROLINA, INC. v. Norwood A. GAINEY.

No. 42.

Supreme Court of North Carolina.

Nov. 15, 1972.

Smith & Everett, by James N. Smith, Goldsboro, for plaintiff.

Taylor, Allen, Warren & Kerr, by John H. Kerr, III, Goldsboro, for defendant.

LAKE, Justice.

The first trial of this action in the superior court resulted in a judgment for the defendant upon a directed verdict. On appeal from that judgment, the Court of Appeals held the evidence presented at that trial was sufficient to withstand a motion for a directed verdict and granted a new trial. Builders Supplies Co. v. Gainey, 10 N.C.App. 364, 178 S.E.2d 794. The Court of Appeals was then of the opinion that the reservation in the deed from Bryan to the defendant gave Bryan an easement, the exact location of which within the larger tract conveyed to the defendant could be fixed by Bryan within the rule of Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678, and Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541. This Court denied certiorari. Builders Supplies Co. v. Gainey, 278 N.C. 300, 180 S.E.2d 178. Such denial does not constitute approval of the reasoning upon which the Court of Appeals reached its decision. See: Concurring opinion by Mr. Justice Frankfurter in Brown v. Allen, 344 U.S. 443, 491, 73 S.Ct. 397, 439, 97 L.Ed. 469, 507; State v. Case, 268 N.C. 330, 150 S.E.2d 509.

Upon the second trial in the superior court, the jury rendered a verdict in favor of the defendant, finding both (1) that the plaintiff is barred by laches from asserting any claim to the sand and gravel in question, and (2) that the plaintiff is not the owner of or entitled to remove such sand and gravel. The superior court thereupon entered judgment for the defendant and, upon appeal to it, the Court of Appeals found no error. Builders Supplies Co. v. Gainey, 14 N.C.App. 678, 189 S.E.2d 657. Upon such second appeal, the Court of Appeals was of the opinion that the reservation in Bryan's deed to the defendant and his wife gave Bryan not an easement nor an interest in the sand and gravel in place upon the tract in question but a profit a prendre.

We agree with the latter conclusion of the Court of Appeals that the right, if any, reserved by Bryan in its deed to the defendant and his wife was not an easement. An easement is a right to make some use of land owned by another without taking a part thereof. Richfield Oil Co. v. Hercules Gasoline Co., 112 Cal.App. 431, 297 P. 73; Webster, Real Estate Law in North Carolina, §§ 270, 309; 25 Am.Jur.2d, Easements, §§ 2, 4; 28 C.J.S. Easements § 3; Black's Law Dictionary.

A profit a prendre, though similar to and sometimes called an easement, see Powell on Real Property, § 405, differs therefrom in that it is the right to enter upon the land of another and to take therefrom some part or product thereof, game and fish being considered a part or product of the land for this purpose. Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365; Webster, Real Estate Law in North Carolina, § 309; 25 Am.Jur.2d, Easements, § 4; 28 C.J.S. Easements § 3f; Black's Law Dictionary. Profits a prendre are frequently called 'rights of common.' Webster, Real Estate Law in North Carolina, § 309; 25 Am.Jur.2d, Easements, § 4. See also Powell on Real Property, § 417. Customarily, at least, the grant of a profit a prendre does not preclude the grantor from exercising a like right upon the land or granting such right to others also.

The grant of a profit a prendre is to be distinguished from a conveyance of a present estate in such material in its natural state upon the land, such as a timber deed or a deed to unmined minerals. For example, the grant of a right to enter upon the grantor's land and cut and remove firewood therefrom for the grantee's own use would be a grant of a profit a prendre and would convey no present title to standing trees, whereas a deed to all the trees of a specified type and size upon a described tract of land would convey to the grantee the present title to such standing timber.

The intent of the parties, as disclosed by the conveyance, when read in the light of surrounding circumstances known to the parties, determines whether the conveyance is a grant of a profit a prendre or a grant of a present estate in the designated portion of the grantor's land, assuming the sufficiency of the deed otherwise. Annot., 66 A.L.R.2d 978, 984. Unquestionably, the owner of land may, by a conveyance otherwise valid, convey a present estate in unmined minerals, retaining in himself the title to the other parts of his land, or may convey a present estate in such other parts of the land and retain in himself the title to the unmined minerals therein. Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117; Hoilman v. Johnson, 164 N.C. 268, 80 S.E. 249; Outlaw v. Gray, 163 N.C. 325, 79 S.E. 676. Similarly, he may make a present conveyance, or reservation, of standing timber. Westmoreland v. Lowe, 225 N.C. 553, 35 S.E.2d 613. As is said in 54 Am.Jur.2d, Mines and Minerals, § 103, the owner of land 'can divide his estate horizontally as well as vertically, so that title to the surface vests in one person and title to the minerals in another.' As illustrated by conveyances of growing timber, this is not due to any peculiar quality in mineral substances. We perceive no basis for distinguishing in this respect between minerals and growing timber on the one hand and other identifiable substances constituting parts of the land of the grantor.

Sand and gravel are no less capable of identification and separation from other portions of the land than are many mineral ores in their natural state in the earth. As the Court of Appeals noted in its opinion, commercial gravel was said not to be a 'mineral' in Lillington Stone Co. v. Maxwell, 203 N.C. 151, 165 S.E. 351, the question for decision being the right of the plaintiff to a refund of taxes paid on gasoline used in excavating gravel under a statute permitting such refund if the gasoline was used in the operation of 'mining machinery.' In 54 Am.Jur.2d, Mines and Minerals, § 8, it is said, 'Generally, on the ground that they do not possess exceptional qualities or value, but are only part of the soil itself, sand, gravel and clay are not considered minerals, although there is some contrary authority.' The circumstance that these substances are not included within the term 'minerals,' as used in statutes regulating commercial mining or relating to taxation, does not preclude these substances from being the subject of a conveyance while embedded in the earth. Sand and gravel are included in the definition of 'minerals' in the Mining Act of 1971. G.S. § 74--49(6).

In Outlaw v. Gray, supra, the owner of land conveyed to the grantee, his heirs and assigns, 'the right of entering in and upon the lands hereinafter described for the purpose of searching for all marl deposits and fossil substance, and for taking and removing thereform said marl and fossil substance which he may find embedded in the earth of the said lands, and for mining and quarrying operations for that purpose to any extent he may deem advisable, but not to hold possession of any part of the said lands for any other purpose whatsoever.' This Court said: 'It must be admitted that the deed is sufficient in form to convey a fee in the land itself, had that been the subject of conveyance. That being so, it is sufficient to convey a fee in the mineral deposits described in it.'

We are unable to distinguish Outlaw v. Gray, supra, from the case before us except that in that case the land, upon which the rights in question were to be exercised, was specifically described. Consequently, we conclude that the deed from Bryan to the defendant and wife was not intended to reserve a profit a prendre to Bryan but was intended to reserve in Bryan the fee simple estate in the sand and gravel upon a tract of 35 acres to be selected by Bryan within the larger tract conveyed. Had the reservation related to the entire tract conveyed to the defendant and wife, we think it unquestionable that the reservation would have been sufficient to retain in Bryan a transferable fee simple estate in the sand and gravel upon the land.

We turn, therefore, to the sufficiency of the description in the reservation of the land to which it relates. In Cathey v. Lumber Company, 151 N.C. 592, 66 S.E. 580, this Court, speaking through Justice Brown, said:

'It is self-evident that a certain part of a whole cannot be set apart unless the part can be in some way identified. Therefore, where a grantor undertakes to convey a part of a tract of land, his conveyance must itself furnish the means by which the...