Thompson v. Umberger

• Decision Date: 08 April 1942
• Docket Number: 377.
• Citation: 19 S.E.2d 484,221 N.C. 178
• Parties: THOMPSON v. UMBERGER et al.
• Court: North Carolina Supreme Court

19 S.E.2d 484

221 N.C. 178

THOMPSON v. UMBERGER et al.

No. 377.

Supreme Court of North Carolina

April 8, 1942

Civil action to locate and establish two alleyways over and across lands of defendants.

Lucy A Brown et al. owned a certain tract of land in south Kannapolis, Cabarrus County, being a part of Bergerberg known as Midway. On February 11, 1936, they conveyed a part thereof fronting 20.4 feet on the highway to A. Ray Kennerly. The lot conveyed consisted of parts of lots Nos. 3 and 4 as shown on the map of the subdivision. Kennerly conveyed said lots to plaintiff who now owns the same.

The deed to Kennerly contains the following: "The above tract of land is sold subject to an agreement by the parties of the first part to the party of the second part that there is to be reserved a 10-foot alleyway from the front of a certain tract of land containing 240 feet, which tract of land is shown on the map. The said alleyway is to run to the back of said property and the owners are to have an alleyway running across the entire properties at the back."

The defendants severally have acquired title to and now own the remaining lots in said subdivision known as Midway.

The plaintiff, alleging that the original grantors did not establish and lay out or locate the alleyways referred to in the Kennerly deed, institutes this action for a decree of the court locating, establishing and laying out by metes and bounds said ways across the lands of defendants. In so doing he pleads the provision in the Kennerly deed as the basis of his action.

The defendants demurred for that the complaint does not state facts sufficient to constitute a cause of action in that no easement or right of way is granted through, over or across the lands of the defendants.

When the cause came on to be heard in the court below the demurrer was sustained and plaintiff appealed.

E Johnston Irvin, of Concord, for plaintiff-appellant.

Hartsell & Hartsell, of Concord, for defendants-appellees.

BARNHILL Justice.

Is an alleyway reserved in the deed from Brown to Kennerly with sufficient definiteness to invoke the aid of a court of equity in locating and establishing the same? The answer is determinative.

An alleyway is in the nature of an easement. It constitutes an interest in land. It may be created by either of nine different methods. Mordecai Law Lectures, Vol. 1, pp. 464-471. One of these is by deed or reservation contained in a deed --the method here adopted.

The existence of the reservation depends upon the construction of the language in the deed. Plaintiff's case must be made out upon the terms of that instrument, and that which is uncertain cannot be made certain or its terms added to or altered by evidence aliunde.

When the easement--here a passageway--is created by deed, either by express grant or by reservation, the description thereof must not be so uncertain, vague and indefinite as to prevent identification with reasonable certainty. Gruber, Inc., v. Eubank, 197 N.C. 280, 148 S.E. 246, and cases cited.

If the description is so vague and indefinite that effect cannot be given the instrument without writing new material language into it, then it is void and ineffectual either as a grant or as a reservation. Annotation 68 A.L.R. 15 (citing numerous N. C. cases).

The description must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. Hodges v. Stewart, 218 N.C. 290, 10 S.E. 2d 723, and cases cited.

If an ambiguity in the description be latent and not patent, it will not be held to be void for uncertainty but parol evidence will be admitted to fit the description to the thing intended. Speed v. Perry, 167 N.C. 122, 83 S.E. 176. The purpose of parol evidence, however, is to fit the description to the property--not to create a description. There must be language in the deed sufficient to serve as a pointer or a guide to the ascertainment of the location of the land. The expression of the intention of the parties to the deed must appear thereon. Parol evidence is resorted to merely to bring to light this intention-- but never to create...