Bumgarner v. Reneau

• Decision Date: 18 February 1992
• Docket Number: No. 9130SC116,9130SC116
• Citation: 105 N.C.App. 362,413 S.E.2d 565
• Parties: Earl BUMGARNER and wife, Eula Bumgarner v. Hobart RENEAU and wife Reva Reneau, Formerly Reva Arnold.
• Court: North Carolina Court of Appeals

Page 565

413 S.E.2d 565

105 N.C.App. 362

Earl BUMGARNER and wife, Eula Bumgarner v. Hobart RENEAU and wife Reva Reneau, Formerly Reva Arnold.

No. 9130SC116.

Court of Appeals of North Carolina.

Feb. 18, 1992.

Van Winkle, Buck, Wall, Starnes and Davis, P.A. by Michelle Rippon, Asheville, for plaintiff-appellants.

Russell & Dickson by Russell L. McLean, III, Waynesville, and Long, Parker, Hunt, Payne & Warren, P.A. by Robert B. Long, Jr., Asheville, for defendant-appellees.

GREENE, Judge.

Plaintiffs appeal from a judgment entered 28 August 1990, which judgment was based on a jury verdict finding that plaintiffs had failed to establish a prescriptive easement over defendants' property.

Plaintiffs instituted this action seeking to permanently enjoin defendants from interfering with plaintiffs' use of a paved road leading from plaintiffs' property across defendants' property to U.S. Highway 441 in Jackson County. In their initial complaint, plaintiffs make the following pertinent allegations: that they have used the road without interruption and without permission for 32 years, and that such use has been open and notorious; that defendants' deed to an eight-acre tract of land excepts and reserves the road to the general public; and that defendants erected metal posts along the road, "significantly reducing and limiting the easement area from its previous width [of 12 feet] to a dangerously narrow corridor ..." which became impassable to fire trucks, ambulances, and plaintiffs' farm equipment. Plaintiffs' prayer for relief requested, among other things, a mandatory injunction requiring defendants to remove all obstructions placed on the road and a permanent injunction restraining and enjoining defendants from interfering with plaintiffs' right-of-way. Although the record does not indicate the trial court's ruling on the request for the injunctions, it appears that at some point after the filing of the complaint the posts were removed. Plaintiffs filed an amended complaint in which they added to their initial prayer for relief a request that judgment be entered (1) declaring the right-of-way a public road, and (2) granting plaintiffs a prescriptive easement over the right-of-way.

At trial, the evidence established that plaintiffs' predecessor in title, William Rogers, prior to selling the property to plaintiffs, reached an agreement with nearby landowners for a right-of-way which would provide a means of ingress and egress from his property to Highway 441. A portion of the road, which was built in 1949, passes through what is now defendants' property. Defendants' predecessor in title, Howard Reagan, who in 1949 owned the eight-acre tract on which the road is now located, testified that he gave William Rogers permission to build the road and that the road was 12 feet wide. Howard Reagan conveyed the property to the Jordans in 1955. In 1960, the Jordans conveyed the property to the Halls. The Jordan-Hall deed includes the following clause:

Excepting and reserving from this conveyance unto ... the general public, the existing roadway as same is now located together with the right to maintain same; said roadway to be used as a means of ingress, egress and regress to the property above described and other properties belonging to members of the general public, and said right of way to be and remain perpetually open for the aforesaid purposes but in the event said right of way shall ever cease to be used for road purposes, then and in that event same shall revert to and become the property of the owner of the adjoining lands over which same passes.

Finally in 1964, the Halls conveyed the property to defendant Reva Arnold (now Reneau) and her husband at the time, Lester Arnold. The Hall-Arnold deed contains, word for word, the above-referenced clause.

The evidence established that, between 1949 and 1989, plaintiffs and others used the road as a means of accessing their property. In 1989, defendants erected the posts along the road for the purpose of curtailing construction vehicles which were using the road to reach a nearby subdivision. The width between the posts ranged from approximately 10 feet at some points to nearly 12 feet at others. After erecting the posts, defendants constructed a by-pass road for use by plaintiffs for plaintiffs' farm equipment. There is conflicting evidence as to the adequacy of the by-pass road.

During the direct examination of defendant Reva Reneau, plaintiffs attempted to introduce into evidence a copy of the deed to defendants' property. The trial court sustained defendants' objection to the introduction of the deed, and submitted to the jury only the issue of whether plaintiffs had established a prescriptive right-of-way. The jury found that plaintiffs had failed to establish such a right-of-way. __________

The issues are whether I) a clause in a deed "excepting and reserving" from the conveyance an existing road to "the general public" constitutes an offer of dedication to the general public; and II) an offer of dedication is properly accepted when the general public uses the road for an indefinite period of time and for the purpose for which it was offered for dedication.

Plaintiffs contend that they are entitled to a new trial because the trial judge refused to allow them to introduce into evidence defendants' deed. They contend that the deed is relevant to the issue of whether the disputed road is a public road. Plaintiffs do not contend in this Court that the deed is relevant to the issue of whether plaintiffs had established a right to use the road by prescription.

I

Plaintiffs argue that the "exception and reservation" clause in defendants' deed creates a right-of-way for use by the general public by express reservation, or alternatively, by dedication. " '[A] reservation is a clause in a deed whereby the grantor reserves something arising out of the thing granted not then in esse, or some new thing created or reserved, issuing or coming out of the thing granted and not a part of the thing itself....' " River Birch Assoc. v. City of Raleigh, 326 N.C. 100, 108, 388 S.E.2d 538, 542 (1990) (quoting Central Bank & Trust Co. v. Wyatt, 189 N.C. 107, 109, 126 S.E. 93, 94 (1925)). Dedication is "the intentional appropriation or donation of land, or of an easement or interest therein, by its owner for some proper public use." 23 Am Jur 2d Dedication § 1 (1983). An offer of dedication of land to the use of the public may be either by express language, reservation, or by conduct of the owner manifesting an intent to set aside land for the public, Milliken v. Denney, 141 N.C. 224, 227, 53 S.E. 867, 868 (1906); Town of Sparta v. Hamm, 97 N.C.App. 82, 85, 387 S.E.2d 173, 175, disc. rev. denied, 326 N.C. 366, 389 S.E.2d 819 (1990), as well as by the recording of a plat denoting lots and streets. Town of Blowing Rock v. Gregorie, 243 N.C. 364, 367, 90 S.E.2d 898, 901 (1956).

In the instant case, defendants' grantors expressly "reserved and excepted" for use by the general public a road which was already in existence and in use at the time of the grant. Because, as previously stated, a reservation contemplates a withholding by the grantor from the conveyance some interest which is not then in existence, technically, the clause in defendants' deed is not a reservation. See 6 George W. Thompson, Thompson on Real Property § 3090 (1962). However, "terms such as 'dedication' and 'reservation' [are often used] without regard to their technical meaning," and courts should give effect to the obvious intent of the parties. River Birch, 326 N.C. at 108, 388 S.E.2d at 543; Reynolds v. B.V. Hedrick Gravel & Sand Co., 263 N.C. 609, 613, 139 S.E.2d 888, 891 (1965); see also 23 Am Jur 2d Dedication § 28 (1983) (failure to use the word "dedicate" does not preclude clause in deed from operating as an express dedication if character of conveyance is that of a dedication). Here, it appears without dispute that the intent of the parties, as evidenced by defendants' deed, was to dedicate the road for use by the public as a means of ingress to and egress from the surrounding properties. Accordingly, we conclude that the clause in defendants' deed constitutes an express offer of dedication of the road to the general public.

II

A dedication of a road to the general public is a revocable offer until it is accepted on the part of the public in "some recognized legal manner" and by a proper public authority. Wright v. Town of Lake Waccamaw, 200 N.C. 616, 617, 158 S.E. 99, 100 (1931); Oliver v. Ernul, 277 N.C. 591, 598, 178 S.E.2d 393, 396 (1971). A "proper public authority" is a governing body having jurisdiction over the location of the dedicated property, such as a municipality, an incorporated town, a county, or any public body having the power to exercise eminent domain over the dedicated property. See 23 Am Jur 2d Dedication § 45 (1983). Acceptance in "some recognized legal manner" includes both express and implied acceptance. Id. at § 51. Express acceptance may take the form of, inter alia, a formal ratification, resolution, or order by proper officials, the adoption of an ordinance, a town council's vote of approval, or the signing of a written instrument by proper authorities. Id. Acceptance of an offer of dedication is implied in North Carolina when the dedicated property is used by the general public coupled with control of the road by public authorities for a period of twenty years or more. See Owens v. Elliot, 258 N.C. 314, 317, 128 S.E.2d 583, 586 (1962).

Plaintiffs argue that acceptance of a dedication can also be implied through an application of the...