Heritage Communities of North Carolina, Inc. v. Powers, Inc., 8015SC310
| Decision Date | 02 December 1980 |
| Docket Number | No. 8015SC310,8015SC310 |
| Court | North Carolina Court of Appeals |
| Parties | HERITAGE COMMUNITIES OF NORTH CAROLINA, INC. v. POWERS, INC. and Jon S. Harder. |
Graham & Cheshire by Lucius M. Cheshire and D. Michael Parker, Hillsborough, for plaintiff-appellant.
Powe, Porter & Alphin by N. A. Ciompi, Durham, for defendants-appellees.
The first question to be determined in this appeal is whether the easement granted by Valley Forge to Brandywine was destroyed through operation of the doctrine of merger when the dominant estate (first tract) was reconveyed to Valley Forge, as contended by the defendants.
Merger occurs
when the owner of one of the estates, dominant or servient, acquires the other, because an owner of land cannot have an easement in his own estate in fee, for the plain and obvious reason that in having ... the full and unlimited right and power to make any and every possible use of the land ... all subordinate and inferior derivative rights are necessarily merged and lost in the higher right.
Patrick v. Insurance Co., 176 N.C. 660, 670, 97 S.E. 657, 661 (1918); 28 C.J.S. Easements § 57(a), at 720-21 (1941). For the doctrine to operate there must be no intermediate estates of other parties in the property that would interfere with the owner's unlimited right and power to make any and every possible use of the land. See Trust Co. v. Watkins, 215 N.C. 292, 297, 1 S.E.2d 853, 857 (1939); 28 C.J.S. Easements § 57(b), at 721 (1941).
The evidence shows that the re-conveyance from Brandywine to Valley Forge of the first tract and its appurtenant easement was made subject to a pre-existing deed of trust. There is no evidence in the record to show that this deed of trust was cancelled prior to the date of the conveyance of the second tract from Valley Forge to the defendants.
Plaintiff argues that: (1) the interest of the trustee under a deed of trust is sufficient to prevent the operation of the doctrine of merger, and, (2) summary judgment based on the merger doctrine is improper when the evidence shows that at the time of acquisition, the property was subject to an outstanding deed of trust.
Under North Carolina law the estate of a trustee in a deed of trust is a determinable fee. Simms v. Hawkins, 1 N.C.App. 168, 170, 160 S.E.2d 514, 515 (1968); Webster, Real Estate Law in North Carolina § 229, at 272 (1971); see also Elmore v. Austin, 232 N.C. 13, 21, 59 S.E.2d 205, 211 (1950); 59 C.J.S. Mortgages § 367, at 524 (1949).
We hold, therefore, that an outstanding deed of trust, conveying the dominant estate and that estate's appurtenant easement over the servient estate, creates such an intermediate estate as will defeat application of the doctrine of merger when the legal owner of the servient estate acquires the equitable interest in the dominant estate and its appurtenant easement.
The doctrine of merger will not be applied where to do so would be detrimental to the rights of the holder of an intervening estate. 31 C.J.S. Estates § 124, at 225-26 (1964).
Another issue to be resolved in this case arises upon the evidence before the trial court. Although the deed conveying the second tract from Valley Forge to defendants contained no express reservation of the disputed easement, the metes and bounds description in the deed was followed by a reference to a recorded plat of the property. It is settled law that a map or plat referred to in a deed becomes a part of the deed as if it were written therein. Kaperonis v. Highway Commission, 260 N.C. 587, 598, 133 S.E.2d 464, 471-72 (1963). The effect of such reference to a plat is to incorporate it into the deed as part of the description of the land conveyed. The plat referred to in the subject deed depicts the disputed easement by lines and distances, the area being labeled "Private 60' RWY". This constitutes some evidence that the grantor may have intended to reserve a private right of way of sixty feet as depicted on the plat.
It thus appears that the language in the deed leaves a question or doubt as to the intent of the parties regarding the reservation of the disputed easement. In order to ascertain that intent, it is proper to consider the situation of the parties and the situation dealt with at the time of the conveyance. See Reed v. Elmore, 246 N.C. 221, 224, 98 S.E.2d 360, 362 (1957), and cases cited therein.
Prior to the execution of the deed from Valley Forge to defendants, the parties entered into an agreement to sell and purchase certain properties, including the...
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