Mason v. Andersen, 7615SC952

• Decision Date: 06 July 1977
• Docket Number: No. 7615SC952,7615SC952
• Citation: 33 N.C.App. 568,235 S.E.2d 880
• Parties: Vincent E. MASON, and wife, Carolyn K. Mason v. Robert L. ANDERSEN, and wife Mary S. Andersen and Lake Forest Association, Inc.
• Court: North Carolina Court of Appeals

Page 880

235 S.E.2d 880

33 N.C.App. 568

Vincent E. MASON, and wife, Carolyn K. Mason v. Robert L. ANDERSEN, and wife Mary S. Andersen and Lake Forest Association, Inc.

No. 7615SC952.

Court of Appeals of North Carolina.

July 6, 1977.

Midgette, Page & Higgins by Keith D. Lembo, Chapel Hill, for defendants-appellees.

ARNOLD, Judge.

The question presented by this appeal is whether the language in the Masons' deed, "This deed is delivered and accepted subject to those restrictions which are recorded in Book 174, at page 256, Orange County Registry," purports to convey an easement to plaintiffs. Plaintiffs argue that an easement is conveyed and that defendants have broken their covenant of seisin because they failed to convey the full estate described in the deed. We disagree with plaintiffs and affirm summary judgment for defendants.

G.S. 1A-1, Rule 56(c) provides:

". . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. . . ."

The indisputable facts raise a question of law in the case at bar, i. e., whether the deed conveys an easement. Since there are no disputes as to material facts summary judgment is the proper procedure to reach final judgment.

A deed is to be construed by the court, and the meaning of its terms is a question of law, not of fact. Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603 (1950), reh. den. 233 N.C. 617, 65 S.E.2d 144 (1951). When the language used has a clear legal meaning there is not even room for construction; the only question is that of determining the applicable law. Strickland v. Jackson, 259 N.C. 81, 130 S.E.2d 22 (1963). In the present case the language used in the deed does not purport to convey from the Andersens to the Masons an easement entitling the landowner to use Lake Forest. The deed states only that it is ". . . delivered and accepted subject to those restrictions which are recorded in Book 174, at Page 256, Orange County Registry (emphasis added)." A "restriction" as the word is used here is not any kind of "easement". "An easement is a right to make some use of land owned by another without taking a part thereof." Builders Supplies Co. v. Gainey, 282 N.C. 261, 266, 192 S.E.2d 449 (1972). The land benefitted is known as dominant land; that burdened is servient. Thus, while an easement might be a restriction on the servient land, it is in no sense a restriction on the dominant land. In the present case, the land sold by the Andersens to the Masons was ". . . subject to those restrictions . . . (emphasis added)." In other words, by the terms used in the deed it was the servient land. Yet, manifestly, if the Masons had received as part of their estate in the land the privilege of using Lake Forest, their land would have been benefitted not burdened; it would have been dominant, not servient. Thus, as a matter of law, the privilege to use Lake Forest was in no sense a "restricti...