Wiggins v. Short

• Decision Date: 07 May 1996
• Docket Number: No. COA95-518,COA95-518
• Citation: 122 N.C.App. 322,469 S.E.2d 571
• Parties: Emmett H. WIGGINS, Plaintiff, v. Patsy Ann L. SHORT, Mary L. Lowell, Charlotte Amanda L. Munger, Mark Brickhouse, and Evelyn B. Lowell, Trustee for the Albania Trust, Defendants
• Court: North Carolina Court of Appeals

Page 571

469 S.E.2d 571

122 N.C.App. 322

Emmett H. WIGGINS, Plaintiff, v. Patsy Ann L. SHORT, Mary L. Lowell, Charlotte Amanda L Munger, Mark Brickhouse, and Evelyn B. Lowell Trustee for the Albania Trust, Defendants

No. COA95-518.

Court of Appeals of North Carolina.

May 7, 1996.

Moseley, Elliott & Sholar, L.L.P. by Bradley A. Elliott and Terry M. Sholar, Roanoke Rapids, for plaintiff appellant.

Max S. Busby, P.A. by Max S. Busby, Edenton, for defendant appellee.

SMITH, Judge.

Plaintiff appeals from judgment entered by the trial court denying a mandatory injunction for removal of a gate and fence from a section of roadway over which plaintiff claimed a right-of-way. After careful review of the record, we affirm.

The record reveals that in 1940, M.G. Brown Company, Inc., conveyed a certain portion of its property in Chowan County, North Carolina to Pattie C. Brown (the 1940 conveyance). The conveying instrument also conveyed to grantee, Pattie Brown, three rights-of-way across M.G. Brown Company property.

In 1946, Pattie C. Brown conveyed a part of the property conveyed to her through the 1940 conveyance, to E.H. Wiggins, appellant (the 1946 conveyance). The 1946 conveyance to E.H. Wiggins did not expressly provide any access easements or other rights-of-way, but did contain a typical habendum clause referencing all "privileges and appurtenances."

When appellant Wiggins initially bought the land, "it was in poor condition" and "high water [from the adjoining creek] would just cover it." After purchasing the land, Mr. Wiggins filled in much of the property and began using it to store heavy equipment, such as bulldozers. He eventually moved a lighthouse from the Roanoke River to his property and began living there off and on. He now lives in a mobile home on the property.

At the time he purchased the land from Pattie C. Brown, Wiggins had two means of access. He could get to his property by water or by Eden Street Road Extended, which crossed a wooden bridge. The bridge apparently crossed Pembroke Creek, although there is some evidence in the record that the bridge crossed Filbert Creek. We are simply unable to discern the location of the bridge from the record. At trial, Mr Wiggins testified that, except for those two means of access, he "couldn't get [to his property] until later they changed the road up there and put Dickerson [sic ] Street in...." There is now a path Mr. Wiggins calls "Shore Drive," which runs from Dickinson Street across appellee's property (the Pattie C. Brown tract) to Mr. Wiggins' home. From the record we have been unable to discern exactly where this path crosses appellees' property.

At some time, although it is unclear when, the bridge crossing the creek became unusable and was eventually torn down. Thus, the Eden Street Extended entrance to appellant's property was no longer available. Apparently, it was then that appellant began accessing his property by the "Shore Drive" entrance.

In the summer of 1989, appellees began having security problems with the house located on their property. Patsy Lowell Short, Pattie C. Brown's granddaughter and part owner of the Pattie C. Brown tract, testified that someone broke into the house and removed selected items in a "kind of sampling run." As a result, appellees decided to erect a gate and fence around portions of the house. Appellees installed a gate across "Shore Drive," the path leading to Mr. Wiggins' home. Going towards Mr. Wiggins' property, the gate could be opened from a vehicle with the proper device (possibly electronic) or it could be opened from his home. Coming from his property, the gate was controlled by an underground sensing device which opened and closed the gate automatically. Appellees never attempted to keep Wiggins from using "Shore Drive." In fact, they made repeated efforts to show him how the gate worked and to give him the necessary device which would have allowed him to open the gate from his vehicle.

On 27 February 1991, Mr. Wiggins filed a complaint against appellees, requesting compensatory and punitive damages, and an order requiring defendants to remove the gate across "Shore Drive" immediately and permanently. The parties waived jury trial. The trial court concluded that the evidence was insufficient to establish that the path appellant calls "Shore Drive" is a public road. The court also concluded that Mr. Wiggins had not presented sufficient evidence to show that he had an easement over and across the path. Thus, the trial court entered judgment in favor of defendants, denying plaintiff's request that the gate erected across the path be removed.

Appellant brings forth several assignments of error. First, he argues the trial court erred in concluding that the path he calls "Shore Drive" is not a public road. At trial, Wiggins offered two pieces of evidence as proof that "Shore Drive" was a public road and could not, therefore, be obstructed by appellees pursuant to N.C. Gen.Stat. § 160A-296(a)(2) (1994). First, he introduced a map entitled "Town of Edenton, N.C., Corporate Limits," which shows a road adjoining Dickinson Street labeled "Shore Drive." The map is dated 1979 and is signed by Carlyle C. Webb, a registered land surveyor, who certifies that the mileage statements on the map are correct. Second, Wiggins testified that the town of Edenton has occasionally graded and spread gravel on the road. Ms. Patsy Short testified that the town has a water drainage easement down a portion of the road and this is why the town occasionally grades the road.

The North Carolina Supreme Court has held:

" '[T]here can be in this State no public road or highway unless it be one either established by public authorities in a proceeding regularly instituted before the proper tribunal or one generally used by the public and over which the public authorities have assumed control for the period of twenty years or more; or dedicated to the public by the owner of the soil with the sanction of the authorities and for the maintenance and operation of which they are responsible.' "

Owens v. Elliott, 258 N.C. 314, 317, 128 S.E.2d 583, 586 (1962) (quoting Chesson v. Jordan, 224 N.C. 289, 291, 29 S.E.2d 906, 908 (1944)). In this case, "Shore Drive" has not been established as a public road in a judicial proceeding, nor has the public generally used the road. Town or city maintenance of a roadway may be some evidence of acceptance of the road for public use. See Blowing Rock v. Gregorie, 243 N.C. 364, 368, 90 S.E.2d 898, 901 (1956). However, in this case, the town of Edenton has a water drain easement across the path. This is competent evidence from which the trial judge could conclude that the town maintained the road for its own access, not that of the public generally.

Alternatively, appellant argues that the map of the town evidences a public dedication of the road. However, appellant's argument fails for two reasons. First, from the record, we find no evidence that appellees ever offered or intended to offer the road to the public. Second, simply including the road on the town map is insufficient evidence of the town's intent to accept the road for public use. To accept a road for public use, the proper public authorities must accept the offer in some "recognized legal manner." Owens, 258 N.C. at 317, 128 S.E.2d at 586 (citing Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104 (1931)). There is a dearth of evidence indicating proper acceptance of the path. Thus, the trial court did not err in its conclusion that "Shore Drive" is not a public road.

Next, appellant argues the trial court erred in finding that the facts of this case do not support an express easement, an implied easement from prior use, or an implied easement by necessity. First, Mr. Wiggins argues that Pattie C. Brown was granted an easement to "Shore Drive" through the 1940 conveyance from M.G. Brown Company. He maintains that through that deed, he obtained an express appurtenant easement over "Shore Drive."

The 1946 conveyance from Pattie C. Brown to E.H. Wiggins makes no specific reference to an easement, but does refer to all "privileges and appurtenances" of the transferred land. "Appurtenance" has been defined as " '1: an incidental property right or privilege (as to a right of way, a barn, or an orchard) belonging to a principal right and passing in possession with it 2: a subordinate part, adjunct, or accessory.' " Blackwelder v. Holyoke Mut. Fire Insurance Co., 10 N.C.App. 576, 580, 180 S.E.2d 37, 39 (1971) (quoting Webster's Third New International Dictionary). An easement granted to Pattie C. Brown in the 1940 conveyance may have been transferred with the portion of land conveyed to Wiggins in the 1946 deed, as an "appurtenance," if certain conditions of an express easement had been met.

An express easement must be "sufficiently certain to permit the identification and location of the easement with reasonable certainty." Adams v. Severt, 40 N.C.App. 247, 249, 252 S.E.2d 276, 278 (1979). "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." Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942) (citing Hodges v. Stewart, 218 N.C. 290, 291, 10 S.E.2d 723, 724 (1940)). However, our Supreme Court has stressed that an alleged grant of an easement will be void only "when there is such an uncertainty appearing on the face of the instrument itself that the court--reading the language in the light of all the facts and circumstances referred to in the instrument--is yet unable to derive therefrom the intention of the parties as to what land was to be conveyed." Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984). Where there is no express agreement with respect to the location of an easement, " 'the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor ... sufficiently...