BEASLEY, Judge.
Roger P. Edwards, Jr. and Amanda M. Edwards (Plaintiffs) appeal from the trial court's order denying their claim for trespass and ruling that Terrence G. Hill and Linda
The parties to this action own adjacent properties, both conveyed out of a larger tract, in Cleveland County, North Carolina. Plaintiffs' property consists of 20 acres located on the west side of Carpenters Grove Church Road,
The common tract from which the parties' parcels were conveyed was acquired by Native Land Homesites, LLC (NLH), which was owned by Eugene Grigg and Lewis Harrelson. NLH purchased approximately 61 acres to subdivide the parcel and convey several lots therefrom. The first conveyance was a 20 acre parcel granted to Brian Gaddy, Plaintiffs' predecessor in title, on 21 April 2003, by deed recorded in Deed Book 1370, Page 725 in Cleveland County (the "Primary Deed"). The deed was also made subject to an "existing Right-of-Way and Easement (45 feet in width) which crosses the most northwesterly portion of [the 20 acre tract]" and to the above-referenced 60 foot easement. Additionally, NLH "reserve[d] unto itself, its successors and assigns, the right to the use of the aforesaid [rights-of-way]."
Plaintiffs acquired Gaddy's 20 acre tract through two separate conveyances. On 6 October 2003, Gaddy deeded to Plaintiffs a 10 acre tract carved out of the southern half of his parcel (the "southernmost 10 acre tract"). Gaddy included in the conveyance a 45 foot easement along the northern and western boundaries of his upper parcel, allowing Plaintiffs' to cross his property "for ingress, egress and regress" between the 60 foot easement off of Carpenters Grove Church Road and the southernmost 10 acre tract. The second 10 acre conveyance was made by deed dated 23 September 2004, whereby Gaddy sold to Plaintiffs the remainder of his original parcel (the northernmost 10 acre tract). This deed was made "subject to ... [t]hat certain 45-foot easement and right-of-way... running along the westerly and northerly side as shown on the survey referenced [in the Primary Deed]."
Defendants acquired their property from NLH by deed on 14 June 2005, which conveyed the 18.39 acre tract "together with a non-exclusive perpetual Right-of-Way and Easement (45 feet in width) which runs in a generally northeasterly direction to Carpenter's Grove Church Road as described in [several deeds listed therein]." The course of the soil road that Defendants use to access their residence from the 60 foot easement to
On 24 July 2007, Plaintiffs filed a complaint for compensatory damages and an injunction based on allegations that Defendants committed trespass and damage to personal property. A bench trial was held on 19 March 2009, and after taking the matter under consideration, the trial court ruled that Defendants did not commit trespass across Plaintiffs' property or damage Plaintiffs' personal property. The trial court further decreed that Defendants have a 45-foot wide right-of-way and easement over the centerline of the existing soil road, including the contested portion from L1 to L6. Plaintiffs appeal.
We review a judgment entered after a non-jury trial to determine "whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment." Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (2002) (internal quotation marks and citation omitted). Additionally, the findings of fact are like jury verdicts in that they are conclusive on appeal if there is evidence to support them. Stonecreek Sewer Ass'n v. Gary D. Morgan Developer, Inc., 179 N.C. App. 721, 725, 635 S.E.2d 485, 488 (2006). We review the record evidence to conduct our review pursuant to this standard.
NLH expressly reserved a 45 foot easement for itself, its successors, and assigns in its first conveyance to Gaddy. "An express easement in a deed, as in the instant case, is, of course, a contract." Williams v. Skinner, 93 N.C. App. 665, 671, 379 S.E.2d 59, 63 (1989); see also Brown v. Weaver-Rogers Assoc., 131 N.C. App. 120, 122, 505 S.E.2d 322, 324 (1998) ("Deeds of easement are construed according to the rules for construction of contracts so as to ascertain the intention of the parties as gathered from the entire instrument at the time it was made."). Like the specificity required for contract terms, "an express easement must be sufficiently certain to permit the identification and location of the easement with reasonable certainty." Wiggins v. Short, 122 N.C. App. 322, 327, 469 S.E.2d 571, 575 (1996) (internal quotation marks and citation omitted).
Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984) (internal citations omitted). A survey referenced in a deed becomes a part thereof and need not be recorded. Kaperonis v. Highway Commission, 260 N.C. 587, 133 S.E.2d 464 (1963).
An ambiguity in the grant or reservation of an easement does not necessarily make the conveyance void and ineffectual. Indeed, "[i]f the description of an easement is `in a state of absolute uncertainty, and refer[s] to nothing extrinsic by which it might possibly be identified with certainty,' the agreement is patently ambiguous and therefore unenforceable." King v. King, 146 N.C. App. 442, 445, 552 S.E.2d 262, 264-65 (2001) (quoting Lane v. Coe, 262 N.C. 8, 13, 136 S.E.2d 269, 273 (1964)). However, "[a] description is latently ambiguous if it is insufficient
The determination that an ambiguity is latent opens the door for a party seeking establishment of an easement to "`offer evidence, parol and other, with reference to such extrinsic matter tending to identify the property,' and the other party `may offer such evidence with reference thereto tending to show impossibility of identification.'" King, 146 N.C.App. at 445, 552 S.E.2d at 265 (quoting Lane, 262 N.C. at 13, 136 S.E.2d at 273).
Century Communications v. Housing Authority of City of Wilson, 313 N.C. 143, 146-47, 326 S.E.2d 261, 264 (1985) (internal citations omitted). Moreover, where doubt arises as to the parties' true intentions, "the court should construe the deed of easement with `reason and common sense' and adopt the interpretation which produces the usual and just result." Brown, 131 N.C.App. at 122, 505 S.E.2d at 324 (quoting Hundley v. Michael, 105 N.C. App. 432, 435, 413 S.E.2d 296, 298 (1992)); see also Allen, 311 N.C. at 251, 316 S.E.2d at 271 ("The law endeavors to give effect to the intention of the parties, whenever [it] can be done consistently with rational construction.").
While construction of a plain and unambiguous contract is a question of law for the courts, Cochran v. Keller, 84 N.C. App. 205, 211, 352 S.E.2d 458, 462 (1987), here, the easement deed from NLH to Defendants (the "Defendants' Deed") is not plain and unambiguous. Specifically, NLH conveyed to Defendants 18.39 acres
Thus, although the Defendants' Deed leaves the parties' agreement as to the location of the 45 foot easement undisclosed, the easement description does expressly incorporate the description thereof provided in these four deeds. Accordingly, the Defendants' Deed does point to extrinsic evidence by which identification of the easement might possibly be made, and we treat the surveys referenced therein as having become part of the respective deeds.
One extrinsic document referenced therein is the Primary Deed in this action, appearing in Deed Book 1370 at Page 725, which made the conveyance to Gaddy subject to the rights of others to use the existing 45 foot easement crossing the northwesterly portion of the 20 acre parcel. The Primary Deed also indicated that the property was "more particularly described in accordance with an unrecorded plat and survey made thereof by T. Scott Bankhead, Registered Surveyor, dated April 07, 2003." NLH also reserved for itself, as Grantor, and its successors and assigns "the right to the use of the portion of the Right-of-Way and Easement (45 feet in width) which crosses the northwesterly boundary line" of the 20 acre parcel (the "Reserved Easement") as shown upon the 7 April 2003 survey. This survey depicts a
Eugene Grigg was qualified as an expert and testified at trial that the proposed right of way arose in connection with discussions between NLH and Bob Blaire regarding the latter's purchase of 10 acres west of the parcel that later became Defendants'. Although the deal fell through, the 7 April 2003 survey indeed identifies the area reached by the "Proposed 45' Easement" as "10 Acre Tract to be Deeded to Bob Blaire." Mr. Grigg continued that the purpose of that easement was to give Blaire a right of way from the 45' easement that crossed the 20 acre parcel up to the 10 acres he planned to buy. He said that easement had "nothing to do" with the Primary Deed or Defendants' easement, nor did it limit Defendants' rights to use the soil road from L6 to L1. Mr. Grigg further explained that the 7 April 2003 survey should have reflected the existing 45' right of way by continuing the dashes to illustrate that the easement extended to the point at which the soil road begins to run wholly within the boundary lines of the 18.39 acre parcel. He stated: "So even though Mr. Bankhead did not dot that off on—down there, that should have been dotted off and it should have been shown a right of way all the way up to L1." In fact, the legal description of the Primary Deed defines part of the western boundary of the 20 acre parcel going from a "new line" therein identified "to a point located in the centerline of an existing Right-of-Way and Easement (45 feet in width)." The description provides that "the following calls and distances" run "thence with the centerline of said Right-of-Way and Easement." The call for that point located in the center of the existing 45' right of way is marked as L1 on the survey, and the calls and distances listed in the deed as running with the existing easement are referred to as L1 through L23. Thus, the Primary Deed describes this existing right of way separately from the paragraph in which NLH reserves a 45' easement, and the former is unidentified on the survey referenced therein. Whether the easement at issue stops at L5/L6 or at L1, both alternatives could be said to "cross[ ] the northwesterly boundary line of the [20 acre] tract of property," as the Reserved Easement describes, leaving the precise identification of Defendants' right of way ambiguous. However, we may turn to the other extrinsic evidence, parol and other, referred to in the deeds.
The easement description in Defendants' Deed also references Deed Book 1931, Page 1653 ("Plaintiffs' First Deed"). The 45 foot easement described in Plaintiffs' First Deed actually defines an easement granted by Gaddy to Plaintiffs when they purchased the southernmost 10 acre tract (the "Gaddy Easement"). Plaintiffs' First Deed provides that the Gaddy Easement consists of "the 45 foot strip lying east and south of the western and northern boundaries of Grantor's adjacent property (that portion acquired by Grantor by deed recorded in Book 1370 at page 725 which is not being conveyed in this transaction)" and then describes the path of the easement with calls and distances. This separate and distinct easement, however, was extinguished by the doctrine of merger when Plaintiffs purchased the northernmost 10 acre tract from Gaddy, as there is no evidence of a pre-existing easement lying wholly within the 20 acre parcel at that location. See Tower Development Partners v. Zell, 120 N.C. App. 136, 143, 461 S.E.2d 17, 22 (1995) ("It is axiomatic in property law that one may not have an easement in his or her own land.... Ordinarily the doctrine of merger would apply and extinguish the easement[.]"). Thus, the Gaddy Easement is not at issue. Plaintiffs' First Deed also references a survey by Bankhead dated 14 August 2003 as more particularly depicting the 10 acre tract and the 45 foot and above-described 60 foot easements. While Plaintiffs' First Deed makes no mention of the 45 foot easement reserved by NLH in its earlier 20 acre conveyance to Gaddy, the 14 August 2003 survey depicts both an "Existing 45' Easement/Righ[t]
The third extrinsic document referred to in the easement description of Defendants' Deed is a second deed from NLH to Gaddy (the "Second NLH-Gaddy Deed") recorded at Deed Book 1387, Page 954, which predated Gaddy's first conveyance to Plaintiffs and conveyed a 10 acre parcel situated west of Gaddy's original 20 acre tract and north of what would become Defendants' property. The Second NLH-Gaddy Deed was made subject to the rights of others to use the existing 45 foot easement crossing "the most southeasterly portion" of the subject premises as shown on a survey by Bankhead dated 6 August 2003. In this deed, NLH also reserved for itself, its successors, and assigns the right to use the portion of the 45 foot easement over the "southeasterly boundary line" of Gaddy's new 10 acre tract and referenced the 7 April 2003 survey for the description thereof.
Finally, Defendants' Deed also references Deed Book 1412 at Page 709, where a deed dated 19 April 2004 from NLH to Ruth M. Riegler (the "Riegler Deed") is recorded. The Riegler Deed conveyed a 13 acre parcel situated to the west of Defendants' tract and the property Gaddy acquired through the Second NLH-Gaddy Deed. The Riegler parcel consists of the 10 acres that were the subject of negotiations between NLH and Blaire and an additional 3 acres and is described in the Riegler Deed through reference to a survey by Bankhead dated 19 March 2004. The "Proposed 45' Easement" appearing on the 7 April 2003 from the unmarked point between L5 and L6 to the 10 acre tract to be deeded to Blaire is located in the same place as a "New 45' Easement— R/W" on the 19 March 2004 survey. The Riegler survey also draws the "Existing 45' Easement" over the "centerline of [the] existing soil road," with reference to the Primary Deed and the Second NLH-Gaddy Deed. Interestingly, the 19 March 2004 survey depicts this existing easement as extending past the point identified by L5/L6 on the other surveys. In fact, the dashes marking this easement across the existing soil road continue to the point where L1 would be had those calls and distances been reproduced on the Riegler survey.
The trial court also admitted as exhibits the surveys incorporated into the general property description sections of the parties' respective deeds. Although Defendants' Deed was made after the Riegler Deed, the survey referenced in the boundary description of Defendants' parcel was initially prepared on 21 October 2003. While it does not depict the continuation of the easement along the soil road past L5/L6, it does show an existing iron rebar at the southwestern end of L1. This survey was revised on 27 May 2004 to illustrate that the existing soil road, which connected the subdivision to the 60' easement and Carpenters Grove Church Road, continued past L5/L6 to the rebar at L1 before crossing into and proceeding wholly within Defendants' parcel. Plaintiff's deed from Gaddy for the northernmost 10 acre tract also makes the conveyance subject to "[t]hat certain 45-foot easement and right-of-way for ingress, egress and regress running along the westerly and northerly side as shown on the survey ... dated April 7, 2003." This deed references no other extrinsic document in the easement description and thus raises the same questions regarding the potential inaccuracies of the 7 April 2003 survey and the ambiguities presented by the Primary Deed, which was relied upon in the preparation of that survey.
While the above-described extrinsic documents reveal some inconsistencies between the relevant deeds and the surveys they reference, additional evidence before the trial court tended to remove any latent ambiguity that lingered after consulting the parties' deeds. For the following reasons, we conclude that the deeds, together with parol evidence emanating from both extrinsic documents and the circumstances surrounding the conveyances, created a material issue of fact regarding the parties' intentions which was appropriate for resolution by the trial court.
Our Supreme Court has held
Runyon v. Paley, 331 N.C. 293, 305, 416 S.E.2d 177, 186 (1992). While the parties' intent must ordinarily be ascertained from the deed or instrument, "when the language used in the instrument is ambiguous, the court, in determining the parties' intention, must look to the language of the instrument, the nature of the restriction, the situation of the parties, and the circumstances surrounding their transaction."
The trial court made twenty findings of fact, including:
The trial court also found that Plaintiffs' objected to Defendants' use of that portion of the easement from L6 to L1 but that Defendants used the L6 to L1 portion of the road to put in a driveway, build their house, and travel to and from their property.
Initially, it is clear that NLH intended to reserve for itself, its successors, and its assigns an easement 45' in width across an existing right of way that traversed the northwestern boundary of the 20 acre tract it first conveyed from its larger parcel. We acknowledge Plaintiffs' argument regarding finding of fact 15 that the Primary Deed's reference to the calls running with the centerline of the existing right of way in the metes and bounds description of the tract being conveyed to Gaddy "does not by itself convey that property or object." However, the fact that the right of way so described follows an existing road that appears on the survey referenced therein, where there is testimony from Mr. Grigg that the surveyor erred in failing to depict the portion of the Reserved Easement from L6 to L1 as intended by the grantor NLH, the question is not one of construction, which would render the ambiguity patent, but of identification, raising a latent ambiguity as to the length of the 45' easement in question. Moreover, attorney Mark Lackey was qualified as an expert in real estate law and testified at trial that the Primary Deed "does create an ambiguity about where—how—how far the right of way goes when it refers specifically to the center line of a right of way that there are no dashed lines to on the plat."
"When the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible
We conclude that each of the trial court's findings of fact are supported by competent evidence. Not only does the 7 April 2003 survey locate the original road on the ground, as described in the Primary Deed, but Mr. Grigg also testified that this survey, relied upon by Bankhead in preparing the subsequent surveys referenced in the extrinsic documents, inaccurately depicted the length of the easement. Thus, the trial court properly resolved this genuine issue of material fact by considering other admissible evidence clarifying the intention of the parties. The testimony introduced at trial showed the following regarding the nature of the land: the existing road was wide enough for vehicular travel; at point L1, it widens at a clearing broad enough for cars to turn around before the road turns into Defendants' property and proceeds entirely within the 18.39 acre parcel; and the steepness, grade, and dense forestry at other potential access points to Defendants' parcel would render construction of an alternate means of ingress and egress extremely difficult. Mr. Grigg described the part of the road that runs into Defendants' property as "be[ing] like a driveway that goes to somebody's house." Several photographs introduced at trial also depict the characteristics of the road and surrounding landscape near the area at which Plaintiffs contend the easement ends at L5/L6. Mr. Grigg also testified that he and his partner, Mr. Harrelson, walked the property three or four times before NLH purchased the 61 acres "to see where the corners were, [and they] walked the existing right of way that went up through the middle of the property." Where Mr. Grigg drafted the deeds from NLH, this is further evidence that he used the phrase "existing right of way" to refer to the soil road already in place. They had the road regraded and a culvert put in, as it was the intent of NLH that "L1 to L6 [would be] used to service, you know, a road that adjoined tracts." Mr. Grigg further provided his interpretation as the drafter of the various deeds that the phrases "most northwesterly portion" and "northwesterly boundary line" of the 20 acre parcel referred to that length of road from the 60' easement to L1. He continued that the northwestern property line is "roughly in the center line of the existing road bed[,] [a]nd so there's supposed to be—what we had intended was 22 and a half feet on each side of that property line." Mr. Grigg indicated that the Riegler survey, which drew the existing 45' easement
We are also guided by precedent set by our Supreme Court in addressing situations affected by similar ambiguities:
Allen, 311 N.C. at 249, 316 S.E.2d at 270 (internal quotation marks and citation omitted). Here, there was evidence that after NLH conveyed the 20 acres to Gaddy, NLH continued to use the L6 to L1 portion of the soil road to show prospective buyers the 18.39 acre tract and Gaddy acquiesced, acknowledging at trial that "it was a good way to come there." See id. at 251, 316 S.E.2d at 271 ("The use of the roads in question by plaintiffs' predecessors in title, acquiesced in by defendants' predecessors in title of the servient estate, sufficiently locates the roads on the ground, which is deemed to be that which was intended by the reservation of the easements."); see also Prentice, 32 N.C.App. at 383, 232 S.E.2d at 288 ("When the grant does describe with reasonable certainty the easement created and the dominant and servient tenements, but does not definitely locate it, the easement is not held void for uncertainty under the statute of frauds, but instead, the grantee is entitled to a reasonable and convenient way located in the manner and within the limits set forth in the grant. The easement may also be located by the practical location by the grantee, acquiesced in by the grantor." (internal quotations omitted)). Indeed, when Defendants met with Mr. Harrelson to look at the 18.39 acre property, they entered the parcel from "the top of the road where it widens out there at point L1" Defendant Terrence Hill testified that he and Mr. Harrelson discussed the easement that spanned Defendants' eastern property line until reaching point L1. Mr. Harrelson pointed out the iron rebar situated at L1, as depicted on the various surveys, and indicated that the significance of that visible marker was that it would enable Defendants to "always find that point [where their 45' easement ends]," further shedding light on the intent of grantor and grantee at the time the easement at issue was conveyed to Defendants.
In light of the above-described deeds, along with the extrinsic documents they reference and in consideration of "the subject matter involved, the situation of the parties at the time of the conveyance and the purpose sought to be accomplished," Cochran, 84 N.C.App. at 212, 352 S.E.2d at 463, parol and other evidence was properly admitted to reveal the parties' intentions regarding the length of the easement. As such, the trial court had at its disposal an abundance of evidence that allowed it to find that NLH intended "to develop the larger tract with reference to the existing road" tracking "the most northwesterly portion of Plaintiffs' boundary [which] meant all the existing road beginning with call L1." Its finding that "[t]he intent of NLH was to extend over the exi[s]ting road 22.5 feet on each side of the center line from call L1 to the existing 60' easement" is also supported by competent evidence. We hold that the findings of fact also support the trial court's conclusions that Defendants have an easement over the centerline of the existing road 45 feet in width as identified by the calls beginning with L1 to the 60 foot easement referenced in the Primary Deed and shown on the 7 April 2003 survey and, thus, did not commit trespass across Plaintiffs' property. We also believe that in endeavoring to give effect to the parties' intentions, the trial court did in fact construe the deeds of easement with reason and common sense to adopt the interpretation that produced the usual and just result. Brown, 131 N.C.App. at 122, 505 S.E.2d at 324.
Affirmed.
Judges GEER and JACKSON concur.
