Century Communications, Inc. v. Housing Authority of City of Wilson, 368PA84

• Decision Date: 27 February 1985
• Docket Number: No. 368PA84,368PA84
• Citation: 313 N.C. 143,326 S.E.2d 261
• Parties: CENTURY COMMUNICATIONS, INC. v. The HOUSING AUTHORITY OF the CITY OF WILSON, and Site, Inc.
• Court: North Carolina Supreme Court

Page 261

326 S.E.2d 261

313 N.C. 143

CENTURY COMMUNICATIONS, INC. v. The HOUSING AUTHORITY OF the CITY OF WILSON, and Site, Inc.

No. 368PA84.

Supreme Court of North Carolina.

Feb. 27, 1985.

Kimzey, Smith, McMillan & Roten by James M. Kimzey, Raleigh, for plaintiff-appellee.

Manning, Fulton & Skinner by Howard E. Manning, Jr. and Charles E. Nichols, Jr., Raleigh, for defendant-appellant.

MARTIN, Justice.

Prior to 1962 D.W. Woodard and his wife, Romaine C. Woodard, owned a tract of land (hereinafter "Woodard tract") located outside the city of Wilson. On 1 October 1962 the Woodards leased a portion of this tract to the Wilson Radio Company, Inc. On 22 December 1971 two new leases were executed between the successors of the Woodards' interest and Wilson Radio Company. These leases pertained to two adjoining parcels of land within the Woodard tract upon which were located two radio towers and buildings containing radio transmission facilities. These leases were assigned to Century Communications, Inc. ("Century"), plaintiff herein, on 1 January 1976. The leases and assignments were duly recorded. Plaintiff uses the facilities located on the land which is the subject of these leases for thepurpose of operating two radio stations.

In April 1980 defendant, The Housing Authority of the City of Wilson ("Housing Authority"), purchased from the Woodards' successors in interest that part of the Woodard tract not leased to Century. The Housing Authority then proceeded to build a housing project on the land it thus acquired.

The dispute in the instant case centers upon underground wires emanating from the two radio transmission towers which are located on that part of the Woodard tract leased to plaintiff. Some of these wires extend beyond the boundaries of the land leased by Century into the land purchased in 1980 by the Housing Authority. By virtue of the following paragraph in one of the aforementioned 1971 leases, plaintiff claims that by constructing buildings over the wires, defendant inversely condemned a property interest plaintiff held therein:

6. The Lessors agree not to interfere with,--either by cultivation or otherwise--, wires of the present Radio ground system of Station WVOT, radiating approximately 250 feet from the center of the two Radio Towers.

Plaintiff sued defendant for inverse condemnation of private property, and summary judgment "as to the issue of liability" was entered for plaintiff upon the trial court's finding that "there is no genuine issue to [sic] any material fact relating to the liability of the Housing Authority of the City of Wilson for the taking of private property for public use without just compensation." Defendant appealed this order to the Court of Appeals, which ruled that the physical presence of buildings over the wires is per se a taking because plaintiff cannot now reach the wires under the buildings. Upon rehearing the Court of Appeals amended its initial opinion by adding that "the plaintiff should be allowed to prove any damage it may properly show which was caused by the placing of buildings over the wires. We affirm our previous opinion in all other respects."

The issue before this Court is whether partial summary judgment was properly entered for plaintiff. Summary judgment is appropriate only if the pleadings and other materials before the trial judge show that there is no genuine issue of material fact and that any party is entitled to a judgment as a matter of law. E.g., Connor Co. v. Spanish Inns, 294 N.C. 661, 242 S.E.2d 785 (1978); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). We have determined that it was error for the trial court to have entered summary judgment, and we therefore reverse the decision of the Court of Appeals.

Plaintiff claims that paragraph six of the lease created an easement appurtenant for the benefit of Wilson Radio Company. The lessors also owned land adjoining the leased premises, and it is into this adjoining land that the radio wires extend. Defendant purchased this adjoining land in 1980. Plaintiff argues that the purported easement granted by the 1971 lease runs with the land, so that defendant, who purchased that part of the Woodard tract adjacent to the land leased by the radio station, is bound thereby. See, e.g., Waldrop v. Brevard, 233 N.C. 26, 62 S.E.2d 512 (1950). When defendant constructed buildings over the radio wires, plaintiff argues, defendant in effect inversely condemned property rights plaintiff held by virtue of the grant of the easement.

In its answer defendant denies that paragraph six of the lease creates an easement. Upon examining this paragraph we find it so ambiguous that we are unable to hold as a matter of law that it does or does not create an easement. Generally, whether language in a written instrument creates an easement is to be determined by ascertaining the intention of the parties as gathered from the language of the instrument. See Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541 (1953). However, if the language is uncertain or ambiguous, the court may consider all the surrounding circumstances, including those existing when the document was drawn, those existing during the term of the instrument (if, as in the present lease, the instrument is limited in time), and the construction which the parties have placed on the language, so that the intention of the parties may be ascertained and given effect. See Builders Supplies Co. v. Gainey, 282 N.C. 261, 267, 192 S.E.2d 449, 453 (1972) (intent of parties as disclosed by the conveyance, when read in the light of surrounding circumstances known to the parties, determines whether the conveyance is an easement or a profit a prendre); Sergi v. Carew, 18 N.J.Super. 307, 87 A.2d 56 (1952) (factual surroundings as well as language of instrument taken into account in determining whether language created easement or estate in fee simple); Dee v. King, 77 Vt. 230, 238, 59 A. 839, 841-42 (1905) (language in deed which could have created either a personal covenant or an easement appurtenant "cannot be said to be unequivocal. We therefore look at the surrounding circumstances existing when the deed containing it was made, the situation of the parties, and the subject-matter of the instrument, and in the light thereof the clause should be construed according to the intent of the parties."); Callan v. Hause, 91 Minn. 270, 272, 97 N.W. 973, 974 (1904) ("The meaning of a reservation in a contract, when the language is indefinite, must be determined in every case by the particular facts--such as the character of the conveyance, the nature and situation of the property conveyed and of the property excepted, and the purpose of the exception."). See generally 25 Am.Jur.2d Easements § 23 (1966 & Supp.1984). As the Supreme Court of California stated:

Although extrinsic evidence is not permitted in order to add to, detract from, or vary the terms of an integrated written agreement, extrinsic evidence is admissible in order to explain what those terms are. (Masterson v. Sine (1968) 68 [Cal.2d] 223, 226-227, 65 Cal.Rptr. 545, 436 P.2d 561; Nofziger v. Holman (1964) 61 Cal.2d 526, 528, 39 Cal.Rptr. 384, 393 P.2d 696; see Laux v. Freed, supra [ (1960) ], 53 Cal.2d 512, 522, 527, 2 Cal.Rptr. 265, 348 P.2d 873 (Traynor, J., concurring); Code Civ.Proc. §§ 1856, 1860; Civ.Code, § 1647; Rest., Contracts, §§ 230, coms. a, b, 235, cls. (a), (d), coms. a, f, 238, cl. (a), com. a, 242, com. a; 3 Corbin on Contracts (1960) §§ 535, 536, pp. 17-21, 27-30; 9 Wigmore, Evidence (3d ed. 1940) §§ 2461-2463, 2470 et seq.; Witkin, Cal.Evidence (2d ed. 1966) § 730, p. 675; Corbin, The Interpretation of Words and the Parol Evidence Rule (1965) 50 Cornell L.Q. 161, 164, 189-190; Farnsworth, "Meaning" in the Law of Contracts (1967) 76 Yale L.J. 939, 957-965; Holmes, The Theory of Legal Interpretation (1899) 12 Harv.L.Rev. 417.) Therefore, extrinsic evidence as to the circumstances under which a written instrument was made has been held to be admissible in ascertaining the parties' expressed intentions, subject to the limitation that extrinsic evidence is not admissible in order to give the terms of a written instrument a meaning of which they are not reasonably susceptible. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839; Nofziger v. Holman, supra; Coast Bank v. Minderhout (1964) 61 Cal.2d 311, 315, 38 Cal.Rptr. 505, 392 P.2d 265; Imbach v. Schultz (1962) 58 Cal.2d 858, 860, 27 Cal.Rptr. 160, 377 P.2d 272; see Estate of Rule (1944) 25 Cal.2d 1, 20-22, 152 P.2d 1003, 155 A.L.R. 1319 (Traynor, J., dissenting).)

Continental Baking Co. v. Katz, 68 Cal.2d 512, 521-22, 67 Cal.Rptr. 761, 767, 439 P.2d 889, 895 (1968) (en banc). Cf. Richard Paul, Inc. v. Union Improvement Co., 33 Del.Ch. 113, 91 A.2d 49 (1952) (court looked to extrinsic evidence to determine scope of easement granted in a lease); Burroughs v. Milligan, 199 Md. 78, 85 A.2d 775 (1952) (extrinsic evidence considered to determine scope of reservation of easement creating right-of-way). It is noteworthy that this Court has expressly approved the use of extrinsic evidence in cases where written instruments creating easements contain latent ambiguities with respect to the physical location of the easements. E.g., Allen v. Duvall, 311 N.C. 245, 316 S.E.2d 267 (1984); Oliver v. Ernul, 277 N.C. 591, 178 S.E.2d 393 (1971).

In the instant case the language of paragraph six is so uncertain and...