Piedmont Natural Gas Co. v. Day
| Decision Date | 28 January 1959 |
| Docket Number | No. 739,739 |
| Citation | 249 N.C. 482,106 S.E.2d 678 |
| Court | North Carolina Supreme Court |
| Parties | PIEDMONT NATURAL GAS COMPANY, INC. v. Carlton K. Day and wife, Etta C. Day. |
W. R. Dalton, Jr., Burlington, for defendants, appellants.
Sanders & Holt, Burlington, for plaintiff, appellee.
The assignments of error involve the validity of the plaintiff's easement. The defendants contend it is invalid (1) for failure to locate the line upon which it was to be built; (2) for failure of the grantors to acknowledge its execution before a proper officer; and (3) for failure of the plaintiff to comply with the "supplementary agreement" to construct its lines along the power company's right of way.
The easement here involved is not open to the objection the line along which the pipes were to be laid is not defined in the grant. The instrument itself gives the grantee the right to select line. The plaintiff made the selection, constructed the line, paid the damages to the crops, timber and fences, and took from the grantors a full receipt for the payment. This occurred long before the defendants acquired title from the original grantors. Both the defendants' contract to purchase and their deed specifically state the land is free and clear of all encumbrances, "except those certain easements heretofore granted to Duke Power Company, Southern Bell Telephone and Telegraph Company, and Piedmont Natural Gas Company."
"It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant." Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541, 543. The defendants' contention the grant is void for uncertainty of description cannot be sustained.
The defendants' contention the easement was not properly acknowledged also must fail. The notary public certified to the appearance of Mr. & Mrs. Amick before him and the due acknowledgment by both. Mr. Richardson witnessed the signatures of the grantors. The principal objection was that neither of the men was introduced as a notary public. Mr. Amick was not certain. The notary was positive that his official position was known. The Amicks admitted their signatures, the receipt of the consideration, and the receipt of the payment for damages to crops, timber, and fences. The deed from the Amicks to the defendants refers to the easement grant. The certificate of the officer is not attacked for fraud, but upon the ground that Mrs. Amick did not know the officer was acting as a notary public. The evidence is insufficient to impeach a solemn record. The certificate of acknowledgement must be attacked by direct action and not collaterally. Lee v. Rhodes, 230 N.C. 190, 52 S.E.2d 674; Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12; Best v. Utley, 189 N.C. 356, 127 S.E. 337; Ware v. Nesbit, 94 N.C. 664; Wright v. Player, 72 N.C. 94; Woodbourne v. Gorrell, 66 N.C. 82.
The defendants' claim...
To continue reading
Request your trial
-
Fidelity Bank v. Garner, 8020SC591
...add to, or contradict the contents of the note. Therefore, there was not a violation of the parol evidence rule. See Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678 (1959). In his second assignment of error defendant asserts that the court erroneously allowed into evidence the following testim......
-
Yount v. Lowe
...notice of the perpetual right and easement owned by Elmer Lowe. Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973); Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678 (1959); Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541 (1953); Bender v. Tel. Co., 201 N.C. 355, 160 S.E. 352 In rendering an......
-
Builders Supplies Co. of Goldsboro, N. C., Inc. v. Gainey, 42
...the exact location of which within the larger tract conveyed to the defendant could be fixed by Bryan within the rule of Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678, and Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541. This Court denied certiorari. Builders Supplies Co. v. Gainey, 278 N.......
-
Feldman v. Transcontinental Gas Pipe Line Corp., No. 7021SC297
...the right to select the route. Petitioners' contention the grant is void for vagueness cannot be sustained. Piedmont Natural Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678. The right to lay the additional lines created a presently vested interest and subjected the lands described in the agree......