Higdon v. Davis, 54PA85
| Decision Date | 10 December 1985 |
| Docket Number | No. 54PA85,54PA85 |
| Parties | William L. HIGDON and wife, Jane A. Higdon v. Kenneth Larry DAVIS and wife, Jency L. Davis. |
| Court | North Carolina Supreme Court |
Coward, Dillard, Cabler, Sossomon & Hicks by Orville D. Coward, Jr. and Monty C. Beck, Franklin, for plaintiffs-appellants.
Jones, Key, Melvin & Patton by R.S. Jones, Jr. and Chester Marvin Jones, Franklin, for defendants-appellees.
Plaintiffs instituted this action on 29 July 1980 to quiet title to certain real property located in Franklin, Macon County, North Carolina, specifically requesting that the defendants' claim to an easement across the property be determined and claiming a right of re-entry. By answer, the original defendants (hereinafter referred to as defendants) alleged ownership of the easement by record title, by prescriptive easement acquired by twenty (20) years' adverse use, and by prescriptive easement acquired by seven (7) years' adverse use under color of title.
On 13 May 1985 this Court allowed defendants' motion to substitute as parties defendant Jackson T. Roper and wife, Jewell R. Roper to whom defendants' property was conveyed on 27 March 1985.
By deed dated 5 January 1976, the defendants acquired title to a tract of land adjoining the plaintiffs' property. Both the plaintiffs' property and the defendants' property border city streets in the town of Franklin. The defendants' deed also conveyed a twelve-foot right-of-way, adequately described, across the plaintiffs' property. No reference is made in the deed to any previous conveyances of an easement or right-of-way, and no conditions or references to conditions are included. The grantors specifically excluded the right-of-way from the warranty of title. A few months before institution of this action, the defendants constructed an asphalt driveway over the right-of-way.
Allegations of the complaint admitted in the answer and evidence offered at trial established the following chain of events:
On 14 June 1948, Hallie C. Cozad, widow, Mildred C. Brown and husband, C.S. Brown, Jr. and Margaret C. Wall and husband, John O. Wall, plaintiffs' predecessors in title to the servient tract, conveyed to R.D. Rogers, defendants' predecessor in title to the dominant tract, a twelve-foot right-of-way across the land that now belongs to the plaintiffs for the purpose of providing a driveway to Rogers' adjoining property.
The deed establishing the right-of-way recited that it was given "for and in consideration of the sum of One Dollar to them in hand paid, and other valuable consideration, receipt of which is hereby acknowledged, ..." The deed further provided:
This right of way is given to the party of the second part for the purpose of constructing a graveled driveway to the property of party of the second part, and the parties of the first part reserve unto themselves, their heirs and assigns, the right in common with party of the second part, to use said right of way for ingress and egress to their property or to the Co-Jo Filling Station Property.
The consideration for which this right of way deed is made is that party of the second part, his heirs and assigns, shall always maintain an all weather drive over said right of way and should they fail to do so this deed shall be null and void and the rights hereby conveyed shall revert to parties of the first part, their heirs and assigns.
The right-of-way deed was not proved and recorded until 10 June 1959.
On 21 July 1948, just over one month after execution of the right-of-way deed R.D. Rogers and wife conveyed to W.G. Hall and wife a tract of land which included the dominant tract, along with the twelve-foot right-of-way. This deed (hereinafter referred to as the Rogers to Hall deed) specifically described the right-of-way and stated that it was "the right of way described in a deed from Hallie C. Cozad, widow, et al., to R.D. Rogers, dated June 14, 1948, and this deed is made subject to the conditions contained in said right of way deed." [Note that at this time the deed from Cozad, et al. to Rogers had not been recorded.]
On 20 August 1962, Hallie C. Cozad, widow, Mildred C. Brown and husband, C.S. Brown, Jr., and Margaret C. Wall and husband, John O. Wall, recorded an instrument which referred to the right-of-way deed dated 14 June 1948 (recorded 10 June 1959) and which contained the following:
WHEREAS, said right of way was conveyed to R.D. Rogers for the purpose of constructing a graveled driveway to his property, and the sole consideration for the conveyance of said right of way was that R.D. Rogers, his heirs and assigns, would construct and maintain an all weather drive over said right of way, and upon their failure to do so said deed and the title conveyed thereby became null and void and the rights conveyed reverted to the grantors in said deed, their heirs and assigns; and
WHEREAS, said driveway was never constructed and therefore said deed is now null and void and the rights thereby conveyed have reverted to the undersigned.
NOW, THEREFORE, the undersigned hereby declare under oath that said driveway was never constructed and they hereby declare said deed null and void, and hereby withdraw any and all rights thereby conveyed.
Although the trial judge excluded this instrument from evidence at trial, its execution and filing were admitted by the defendants in their answer.
Thereafter, the dominant tract was conveyed as follows:
1. 19 August 1965. W.G. Hall and wife Avia Hall, to Marshall McElroy. The deed description is:
the land described in a deed from R.D. Rogers and wife Ellen Rogers to W.G. Hall and wife Avia Hall, dated July 21, 1948 and recorded in the office of Register of Deeds for Macon County, North Carolina, in Deed Book V-5, page 248, ...
with the exception of a portion previously conveyed to another grantee. The deed makes no specific conveyance of an easement or right-of-way, although the fee is conveyed along with "all privileges and appurtenances thereunto belonging." Therefore, to identify the property conveyed, one must examine the Rogers to Hall deed.
2. 8 September 1965. Marshall McElroy and wife, Freddie H. McElroy to L.C. Higdon and wife, Frances Higdon. The description is the same as in the Hall to McElroy deed and makes reference to that deed.
3. 10 February 1971. L.C. Higdon, widower, to Emerson G. Crawford and wife, Marjorie H. Crawford (hereinafter referred to as the Higdon to Crawford deed). The description is identical to the two previous deeds and makes specific reference to them.
4. 5 January 1976. Emerson G. Crawford and wife, Marjorie H. Crawford to the defendants.
Upon motion of the plaintiffs, the trial judge appointed a court surveyor to "survey and map the contentions of the parties," as there was disagreement regarding the location of the easement granted in 1948.
The matter came on for trial before Judge Preston Cornelius and a jury at the 1 August 1983 session of Macon County Superior Court.
The plaintiffs tendered certain issues which were rejected by the court. Among them were the following:
1. Does the description in the right of way deed dated June 14, 1948, describe the green area, G-H-I-J-G, or the red area, C-E-F-D-C?
4. Did Hallie C. Cozad, Mildred C. Brown and husband, C.S. Brown, Jr., and Margaret C. Wall and husband, John O. Wall, Grantors in the right of way deed dated June 14, 1948, receive any consideration for it?
The plaintiffs did not request an issue as to whether the defendants had acquired title by adverse use for seven (7) years under color of title. Further, the plaintiffs objected to the submission of that issue tendered by the defendants, both on the ground that the evidence failed to support the issue and on the ground that North Carolina does not allow acquisition of an easement by seven (7) years' adverse use under color of title.
The defendants proposed the following issues which were submitted to the jury and answered as indicated:
1. Did the Defendants and their predecessors in title fail to construct within a reasonable time a driveway, and thereafter, fail to always maintain the same in an all-weather condition, as contemplated in the easement deed from Hallie C. Cozad and others to R.D. Rogers dated June 14, 1948?
Answer: Yes.
2. Have Defendants and their predecessors in title acquired an easement over the land of the Plaintiffs by adverse use of the road shown on the Court map in the green lines for a period of twenty years before this action was filed on July 29, 1980?
Answer: No.
3. Did Defendants and their predecessors in title acquire an easement over the land of the Plaintiffs by adverse use of the road shown on the Court map in the green lines for a period of seven (7) years under the easement deed from R.D. Rogers and wife to W.G. Hall and wife? [Emphasis added.]
Answer: Yes.
Based upon the jury's verdict, the trial judge entered judgment declaring the defendants to be the owners of the easement shown on the court map and delineated by green lines.
On appeal, the Court of Appeals, in a unanimous opinion, affirmed the judgment except as to the part locating the easement within the green lines on the court map. Finding error in the trial court's refusal to submit plaintiffs' issue number one, the Court of Appeals remanded for a new trial on the location of the easement. The Court of Appeals also affirmed the trial court's failure to submit an issue (plaintiffs' proposed issue 4) regarding whether the Cozad, et al. to Rogers deed was a deed of gift.
Because we conclude that the defendants are not possessed of an easement across the plaintiffs' land, the location of the right-of-way is immaterial, and remand for trial of plaintiffs' proposed issue number one is unnecessary.
We agree with the Court of Appeals that the trial judge properly rejected plaintiffs' issue number four, relating to the absence of consideration for the 14 June 1948 right-of-way deed....
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