Weyerhaeuser Co. v. Carolina Power & Light Co., 166

• Decision Date: 10 October 1962
• Docket Number: No. 166,166
• Citation: 257 N.C. 717,127 S.E.2d 539
• Court: North Carolina Supreme Court
• Parties: WEYERHAEUSER COMPANY, v. CAROLINA POWER & LIGHT COMPANY.

Page 539

127 S.E.2d 539

257 N.C. 717

WEYERHAEUSER COMPANY, v. CAROLINA POWER & LIGHT COMPANY.

No. 166

Supreme Court of North Carolina.

Oct. 10, 1962

Norman, Rodman & Hutchins, Plymouth, for plaintiff.

A. Y. Arledge and Charles F. Rouse, Raleigh, for defendant.

MOORE, Justice.

In 1941 Finley McMillan, for a recited consideration of $1,000, granted to the Tide Water Power Company 'a right-of-way and easement, one hundred (100) feet in width, upon, over and across' a large tract of timber land situate in Pender County, 'for the purpose of constructing, operating and maintaining one electric transmission line * * * the said right-of-way to extend fifty (50) feet on each side of the center line thereof * * *. ' The grant further provides: 'The party of the second part shall have the right to make such changes, alterations and substitutions in said line of structure, from time to time, as to it may seem advisable or expedient. And the right is further granted to the party of the second part, its successors and assigns, to keep said right-of-way and easement clear of all structures and undergrowth for the full width thereof and to cut away and keep clear of said line and wires all trees or other obstructions that might in any way endanger the proper operation of the same, including all trees off the right-of-way which in falling might endanger the line.'

Plaintiff is presently the owner of the land burdened with the easement. Defendant has succeeded to the rights granted to Tide Water Power Company. Defendant has been and now is engaged in cutting from the timber land in question trees standing outside the 100-foot right-of-way 'which in falling might endanger the line.'

Plaintiff 'concedes that the defendant is authorized by the terms of said easement deed to cut' such trees, but 'plaintiff contends that it is entitled to receive payment for the value of the trees so cut and to be cut and has made demand upon the defendant therefor. ' Defendant has refused the demand.

It is stipulated by the parties that the only question for decision is: 'In the exercise of its right to cut trees outside of the 100-foot right-of-way, pursuant to the easement deed * * *, is the defendant liable to the plaintiff for the value of such trees as and when cut?'

The cause came on to be heard before Judge Mintz who answered the stipulated question in the negative and adjudged that plaintiff recover nothing. Plaintiff excepted and appealed.

An easement is an interest in land, and is generally created by deed. Borders v. Yarbrough, 237 N.C. 540, 542, 75 S.E.2d 541. An easement deed, such as the one in the case at bar, is, of course, a contract. The controlling purpose of the court in construing a contract is to ascertain the intention of the parties as of the time the contract was made, and to do this consideration must be given to the purpose to be accomplished, the subject-matter of the contract, and the situation of the parties. DeBruhl v. State Highway & Public Works Commission, 245 N.C. 139, 145, 95 S.E.2d 553. The intention of the parties is to be gathered from the entire instrument and not from detached portions. Westinghouse Electric Supply Co. v. Burgess, 223 N.C. 97, 100, 25 S.E.2d 390. An excerpt from a contract must be interpreted in context with the rest of the agreement. Atlantic Coast Line R. Co. v. Norfolk Southern Ry. Co., 236 N.C. 247, 251, 72 S.E.2d 604. When the language of a contract is clear and unambiguous, effect must be given to its terms, and the court, under the guise of constructions, cannot reject what the parties inserted or insert what the parties elected to omit. Hartford Acc. & Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.F.2d 198. It is the province of the courts to construe and not to make contracts for the parties. Williamson v. Miller, 231 N.C. 722, 727, 58 S.E.2d 743; Green v. Fidelity-Phenix Fire Insurance Co., 233 N.C. 321, 327, 64 S.E.2d 162. The terms of an unambiguous contract are to be taken and understood in their plain, ordinary and popular sense. Bailey v. Life Insurance Co., 222 N.C. 716, 722, 24 S.E.2d 614, 166 A.L.R. 826. A court cannot grant relief from a contract merely because it is a hard one. Durant v. Powell, 215 N.C. 628, 633, 2 S.E.2d 884. Applying these principles in the construction of the contract in the instant case, we conclude that the court below placed the proper interpretation upon its terms and the judgment below should be affirmed.

Plaintiff contends that the contract is divisible, the 'danger tree' clause is only incidental to the primary grant of the right-of-way, and that the parties did not intend that the recited consideration should compensate for cutting trees outside the right-of-way. Plaintiff points out that the main granting clause, following the recital of consideration, deals only with the grant of a 100-foot right-of-way, and that the later clause granting the right to cut 'danger trees' does not use such language as 'in further consideration * * *. ' It is argued that the parties contemplated the payment of damages for cutting trees outside the right-of-way when the cutting is done. We do not agree with plaintiff's interpretation of the contract. Plaintiff stipulates that by virtue of the easement deed defendant 'is authorized to cut the trees standing outside of the * * * right-of-way 'which in falling might endanger the line.' ' There is no contention that the recited consideration is not sufficient to support this right. There is no suggestion that defendant has done or proposes to do anything more than to exercise the right. The easement deed does not vest in defendant title to the felled trees, and there is no contention that it does. The trees are the property of plaintiff and are subject to its disposal. Indeed, plaintiff may anticipate cutting by defendant and fell, remove and dispose of the trees at a time and in a manner which will best serve plaintiff's advantage. In the absence of an express agreement that defendant must pay the value of such trees when cut, we cannot insert such provision in the deed and thereby contract for the parties. Considering the deed as a whole, it appears that the parties intended that there should be no trees, structures or obstructions along the transmission line which would endanger it. Plaintiff does not contend that defendan...