Shear v. Stevens Bldg. Co.

• Decision Date: 04 August 1992
• Docket Number: No. 9110SC666,9110SC666
• Citation: 107 N.C.App. 154,418 S.E.2d 841
• Parties: Theodore H. SHEAR and Francine Durso, Tenants by Entirety; Kevin and Elizabeth Piacenza, Tenants by Entirety, Albert and Christine Benshoff, Tenants by Entirety; and Timothy and Karen Hughes, Tenants by Entirety, Plaintiffs, v. STEVENS BUILDING COMPANY, a N.C. Corporation, Stevens Building Company, a N.C. General Partnership, Helen S. Denning, Ina S. Carter, Geneva S. Massengill, Donald A. Stevens, Octavia S. Rivenbark, Norma S. Wilson, Katherine S. Ward, William E. Stevens, Jerry H. Stevens, and Helen G. Stevens, Defendants.
• Court: North Carolina Court of Appeals

Page 841

418 S.E.2d 841

107 N.C.App. 154

Theodore H. SHEAR and Francine Durso, Tenants by Entirety Kevin and Elizabeth Piacenza, Tenants by Entirety, Albert and Christine Benshoff, Tenants by Entirety; and Timothy and Karen Hughes, Tenants by Entirety, Plaintiffs, v. STEVENS BUILDING COMPANY, a N.C. Corporation, Stevens Building Company, a N.C. General Partnership, Helen S Denning, Ina S. Carter, Geneva S. Massengill, Donald A Stevens, Octavia S. Rivenbark, Norma S. Wilson, Katherine S. Ward, William E. Stevens, Jerry H. Stevens, and Helen G Stevens, Defendants.

No. 9110SC666.

Court of Appeals of North Carolina.

Aug. 4, 1992.

Poyner & Spruill by H. Glenn Dunn and Timothy P. Sullivan, Raleigh, for plaintiffs-appellees and cross-appellants.

Smith, Debnam, Hibbert & Pahl by John W. Narron and Vickie Winn Martin, Raleigh, for defendants-appellants and cross-appellees.

WELLS, Judge.

Through their various assignments of error, plaintiffs and defendants argue that the trial court erred in declaring that Cardinal Hills landowners have an appurtenant easement to the lake, that the parties equally share the cost of maintaining the lake and that defendants may develop a portion of the undeveloped property surrounding the lake. We hold that an appurtenant easement by implied dedication was created to the lake and surrounding undeveloped property for the benefit of Cardinal Hills landowners.

Plaintiffs and defendants first assign error to the trial court's findings of fact and conclusions of law regarding the creation of an appurtenant easement to the lake. Plaintiffs contend the trial court erred in finding that representations and actions by defendants' predecessors only created an easement to the lake. Plaintiffs also assign error to the trial court's conclusion of law stating that an easement was created only to the lake. They contend the evidence shows the creation of an easement to the lake as well as the surrounding undeveloped property. Defendants, however, contend the trial court's findings and conclusions that an easement was created to the lake are not supported by the evidence.

It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts. Chemical Realty Corp. v. Home Fed'l Savings & Loan, 84 N.C.App. 27, 351 S.E.2d 786 (1987). Findings of fact by the trial court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support those findings. Hunt v. Hunt, 85 N.C.App. 484, 355 S.E.2d 519 (1987). A trial court's conclusions of law, however, are reviewable de novo. Wright v. Auto Sales, Inc., 72 N.C.App. 449, 325 S.E.2d 493 (1985).

In the present case, the trial court made the following findings of fact relative to the creation of an easement to the lake:

4. In 1956, a Cardinal Hills subdivision plat map was recorded by the Stevens Corporation in the Wake County Registry in Book of Maps 1956 at page 75. A revised plat map was recorded in Book of Maps 1957 at page 47. Both maps depict at the same location within the subdivision a lake identified as "White Oak Lake" which is surrounded by an unsubdivided open area. The maps also depict another open area labeled "playground" adjacent to the Lake and surrounding undeveloped area. All deeds to lots in Cardinal Hills in evidence, including Plaintiffs' deeds, refer to the revised plat map recorded in the Wake County Registry Book of Maps 1957 at [p]age 47.

. . . . .

6. Newspaper advertisements in the summer of 1956 by Connell Realty and Mortgage Company, the exclusive sales agent for Cardinal Hills at the time, and by the Stevens Corporation at various times in 1960 and 1961, used the presence of White Oak Lake to induce the sale of new homes in Cardinal Hills.

7. At various times during this period, Allen T. Stevens, William C. Upchurch, an agent of the Stevens Corporation, and Pete Frazier, an agent of Connell Realty and Mortgage Company, made oral representations to purchasers of lots in Cardinal Hills, prior to closing, that White Oak Lake would remain for the use and enjoyment of residents of Cardinal Hills.

8. The developer, Stevens Corporation, and its agents engaged in an overall pattern of marketing which held out White Oak Lake as an amenity to be used and enjoyed by all Cardinal Hills landowners.

9. The aforesaid representations made by Allen Stevens and agents of the Stevens Corporation that White Oak Lake was to be for the use and enjoyment of landowners in Cardinal Hills helped induce the initial purchase of various lots in Cardinal Hills.

Our review of the record in this case reveals that there is competent evidence to support these findings of fact. We are therefore bound by these findings to the extent they are supported by the evidence presented at trial. However, finding of fact number 4 states that the plat map recorded and used by the Stevens Corporation clearly depicts the lake as well as the surrounding undeveloped and unsubdivided property. Further, this finding states that all deeds to lots sold in Cardinal Hills, including those held by plaintiffs, reference this plat map. We believe this finding alone is sufficient to establish an easement to the lake and the undeveloped property as depicted on the plat map.

An appurtenant easement is an easement created for the purpose of benefitting particular land. This easement attaches to, passes with and is an incident of ownership of the particular land. Gibbs v. Wright, 17 N.C.App. 495, 195 S.E.2d 40 (1973). It is well settled in this jurisdiction that an easement may be created by dedication. This dedication may be either a formal or informal transfer and may be either implied or express. Spaugh v. Charlotte, 239 N.C. 149, 79 S.E.2d 748 (1954).

In Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964) our Supreme Court set out the applicable rules for the establishment of an appurtenant easement by the use of a plat map:

Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks, and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use, and this right is not subject to revocation except by agreement. Steadman v. Pinetops, 251 N.C. 509, 112 S.E.2d 102; Conrad v. Land Company, 126 N.C. 776, 36 S.E. 282. It is said that such streets and parks are dedicated to the use of lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. Jackson v. Gastonia, 246 N.C. 404, 98 S.E.2d 444. It is a right in the nature of an easement appurtenant. Whether it be called an easement or a dedication, the right of the lot owners to the use of the streets, parks and playgrounds may not be extinguished, altered or diminished except by agreement or estoppel. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Todd v. White, 246 N.C. 59, 97 S.E.2d 439. This is true because the existence of the right was an inducement to and a part of the consideration for the purchase of the lots. Hughes v. Clark, 134 N.C. 457, 47 S.E. 462; Conrad v. Land Co., supra. Thus, a street, park or playground may not be reduced in size or put to any use which conflicts with the purpose for which it was dedicated. Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Conrad v. Land Co., supra.

See also, Hinson v. Smith, 89 N.C.App. 127, 365 S.E.2d 166, disc. review denied, 323 N.C. 365, 373 S.E.2d 545 (1988).

The record reveals that the Stevens Corporation recorded a plat map with the Wake County Register of Deeds Office in the mid-1950's. This map sets out all of the subdivided lots for sale in the Cardinal Hills development. The map also depicts streets, a playground, the lake and the undeveloped property surrounding the lake. The record further reveals that the deeds held by original purchasers of homes in Cardinal Hills reference this recorded plat map. Further, the deeds held by plaintiffs reference this map.

The contents of this map, and the Stevens Corporation's selling and conveying in reference to this map, alone creates an easement to the lake and the surrounding property. We note further, however,...