Oliver v. Ernul
Decision Date | 20 January 1971 |
Docket Number | No. 61,61 |
Parties | Garfield OLIVER and Richard A. Sutton v. Fred ERNUL, Luzzie Ernul and Grace Stamps. |
Court | North Carolina Supreme Court |
Thomas S. Bennett, Morehead City, for defendant appellants.
Boshamer & Graham, Morehead City, for plaintiff appellees.
Does Plaintiffs' Exhibit 1, the 'rightaway deed', expressly grant to plaintiffs a twenty-foot right-of-way over the lands of defendant Fred Ernul? If not, are plaintiffs entitled to a way of necessity over said lands? Answers to these questions are determinative of this controversy.
Even if its execution by Fred Ernul is duly proven, the paperwriting designated Plaintiffs' Exhibit 1 is insufficient to expressly grant an easement. While no particular words are necessary for the grant of an easement, the instrument must identify with reasonable certainty the easement created and the dominant and servient tenements. Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541 (1953); Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484 (1942); 2 Thompson on Real Property (Grimes Ed.1961) § 332. Although one might conclude that the intended beneficiaries of the abortive easement are the owners of the Oliver and Mansfield tracts, the location of the '20-foot rightaway' on the ground is vague, indefinite and uncertain. The language of the instrument vaguely describes the intended easement in such manner that nothing can be located on the ground. The description contains no beginning and no ending. When an easement is created by deed, either by express grant or by reservation, Thompson v. Umberger, supra, 221 N.C. 178, 19 S.E.2d 484.
Nor was there a dedication to the perpetual use of the public. Even had the paperwriting been sufficient, there was never an acceptance by duly constituted governmental authority. A dedication without acceptance is merely a revocable offer and 'is not complete until accepted, and neither burdens nor benefits with attendant duties may be imposed on the public unless in some proper way it has consented to assume them.' Owens v. Elliot, 258 N.C. 314, 128 S.E.2d 583 (1962). An acceptance must be made by some competent public authority, and cannot be established by permissive use. Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104 (1931); Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d 906 (1944); 2 Thompson on Real Property, supra, § 372. The record here is devoid of any such acceptance.
The Court of Appeals, relying obliquely upon Hine v. Blumenthal, 239 N.C. 537, 80 S.E.2d 458 (1954), held that, under the circumstances of this case, Plaintiffs' Exhibit 1 created an easement by grant. Hine holds only that where lots are sold with reference to a plat or map, and the grantees rely upon the descriptions therein with respect to designated streets and parks, such grantees acquire from the owner the irrevocable right to use the streets and parks so designated, and no governmental acceptance is necessary. The basis of this right is Estoppel in pais, viz.: it would be fraudulent to allow the owner to resume private control over such streets and parks. See Rives v. Dudley, 56 N.C. 126 (1856); Conrad v. West End Hotel & Land Co., 126 N.C. 776 36 S.E. 282 (1900); Collins v. Asheville Land Co., 128 N.C. 563, 39 S.E. 21 (1901); Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664 (1951); Hine v. Blumenthal, supra. 'The reason for the rule is that the grantor, by making such a conveyance of his property, induces the purchasers to believe that the streets and alleys, squares, courts, and parks will be kept open for their use and benefit; and having acted upon the faith of his implied representations, based upon his conduct in plotting the land and selling accordingly, he is equitably estopped, as well in reference to the public as to his grantees, from denying the existence of the easement thus created.' Green v. Miller, 161 N.C. 24, 76 S.E. 505 (1912). See also 23 Am.Jur.2d, Dedication § 56; Cincinnati v. White, 31 U.S. (6 Pet.) 431, 8 L.Ed. 452 (1832).
The record here discloses no map or plat, nor any sale with reference to any preconceived plan or arrangement. No development plan is referred to in Plaintiffs' Exhibit 1. The simple fact is that Fred Ernul, the owner of a tract of land, sold two land-locked lots from it and the three owners later allegedly executed Plaintiffs' Exhibit 1. This is insufficient to create an easement by dedication, by grant, or by estoppel.
Under the circumstances revealed by the record, our cases establish that plaintiffs have a Way of necessity by operation of law. 2 Thompson on Real Property, supra, § 362; Roper Lumber Co. v. Cedar Works, 158 N.C. 161, 73 S.E. 902 (1912); Pritchard v. Scott, 254 N.C. 277, 118 S.E.2d 890 (1961); Smith v. Moore, 254 N.C. 186, 118 S.E.2d 436 (1961).
2 Thompson on Real Property, supra, § 362; 25 Am.Jur.2d, Easements and Licenses §§ 34--38. Furthermore, to establish the right to use the way of necessity, it is not necessary to show absolute necessity. It is sufficient to show such physical conditions and such use as would reasonably lead one to believe that the grantor intended the grantee should have the right of access. Smith v. Moore, supra, 254 N.C. 186, 118 S.E.2d 436.
Viewed in light of these legal principles, we hold that when Fred Ernul and wife conveyed the two land-locked tracts to M. L. Mansfield, Jr., and wife Edna, and to Garfield Oliver on 4 June 1954, a way of necessity across the lands retained by Fred Ernul was impliedly granted to said grantees--'a reasonable and convenient way for all parties is thereby implied, in view of all the circumstances.' 25 Am.Jur.2d, Easements and Licenses § 64.
With respect to its location on the ground, ...
To continue reading
Request your trial-
Woodring v. Swieter
...intended the grantee should have the right of access.'" Broyhill, 79 N.C.App. at 223, 339 S.E.2d at 35 (quoting Oliver v. Ernul, 277 N.C. 591, 599, 178 S.E.2d 393, 397 (1971)). Additionally, necessity may be established if the easement is "necessary to the beneficial use of the land granted......
-
Drd Enter.s LLC v. Flickema
...the dominant and servient tenements." Dunlap Investors, Ltd. v. Hogan, 133 Ariz. 130, 132, 650 P.2d 432 (1982) [Qquoting Oliver v. Ernul, 277 N.C. 591, 597, 178 S.E.2d 393 (1971)[)]. Hynes v. Lakeland, 451 So.2d 505, 511 ([Fla. Dist. Ct. App.] 1984). Germany v. Murdock, 99 N.M. 679, 681, 66......
-
Abbott v. Abernathy
...the public, the Worthingtons' claim fails, as neither party presented any evidence of acceptance by a public authority. See Oliver, 277 N.C. at 598, 178 S.E.2d at 396. In a "dedication without acceptance is merely a revocable offer" and acceptance "cannot be established by permissive use[,]......
-
Century Communications, Inc. v. Housing Authority of City of Wilson, 368PA84
...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 ambiguous that we are unable to say as a matter of ......