Allen v. Duvall

316 S.E.2d 267, 311 N.C. 245, 1984 N.C. LEXIS 1720

Opinion

MARTIN, Justice.

We granted discretionary review in this case to consider the single question: Was the language quoted above in the 7 October 1914 deed to W. S. McCracken, predecessor in title to defendants, sufficient as a matter of law to create by express reservation the appurtenant easements claimed by plaintiffs?

We hold that it was sufficient and reverse the decision of the Court of Appeals and remand this case for reinstatement of the judgment of the trial court.

The Court of Appeals based its opinion upon the premise that this Court’s opinion in Borders v. Yarbrough, 237 N.C. 540, 75 S.E. 2d 541 (1953), was overruled by Oliver v. Ernul, 277 N.C. 591, 178 S.E. 2d 393 (1971). In so doing, the Court of Appeals erred. Oliver did not overrule Borders, either expressly or by implication.

In Oliver the paperwriting in question failed to create an easement because the description was uncertain in itself and was not capable of being reduced to certainty as it did not refer to anything extrinsic. The grantees in Oliver attempted to create an easement for a road, and although a road existed prior to the attempted grant, no reference to it was made in the paper. The description being vague and indefinite, it was patently ambiguous and void for uncertainty.

On the other hand, the description in Borders, while indefinite, expressly referred to a preexisting sewer line (for which the easement was created) across the land of the servient estate. The description in Borders, therefore, was capable of being rendered to a certainty by a recurrence to something extrinsic (the preexisting sewer line) to which it referred. Oliver v. Ernul, supra

Oliver and Borders are not inconsistent, and we reaffirm the holdings in both opinions. Further, since Oliver, 1971, this Court has relied upon and cited with approval Borders v. Yarbrough, supra, in Yount v. Lowe, 288 N.C. 90, 215 S.E. 2d 563 (1975); Hensley v. Ramsey, 283 N.C. 714, 199 S.E. 2d 1 (1973); and Builders Supplies Co. v. Gainey, 282 N.C. 261, 192 S.E. 2d 449 (1972). The Court of Appeals itself has cited and relied upon Borders in Hanes v. Kennon, 46 N.C. App. 597, 265 S.E. 2d 488 (1980); Adams v. Severt, 40 N.C. App. 247, 252 S.E. 2d 276 (1979); Prentice v. Roberts, 32 N.C. App. 379, 232 S.E. 2d 286, disc. rev. denied, 292 N.C. 730 (1977), all after Oliver was filed in 1971.

We hold that the result in this appeal is controlled by Borders v. Yarbrough, supra

“With reference to the manner of grant, the rule is that in describing an easement, all that is required is a description which identifies the land that is the subject of the easement and expresses the intention of the parties. No set form or particular words are necessary to grant an easement. As a general rule, any words clearly showing the intention to grant an easement which is by law grantable are sufficient. In easements, as in deeds generally, the intention of the parties is determined by a fair interpretation of the grant.” 17 Am. Jur., Easements, Sec. 25.

It is stated in 110 A.L.R., Annotation . . . “where the grant of an easement of way does not definitely locate it, it has been consistently held that a reasonable and convenient way for all parties is thereby implied, in view of all the circumstances” . . . “It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant.”

237 N.C. at 542, 75 S.E. 2d at 543.

When an easement is created by deed, either by express grant or by reservation, the description thereof “must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. . . . 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. ” Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E. 2d 484, 485 (1942) (and cases cited therein) (emphasis ours). See Oliver v. Ernul, supra, 277 N.C. 591, 178 S.E. 2d 393.

It is to be stressed that an alleged grant or reservation of an easement will be void and ineffectual 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. Thompson v. Umberger, supra.

In the case at bar, the language of reservation in the 1914 deed was clearly sufficient to create the two easements in question:

[A] right of way for a road for wagons and all purposes, beginning at G. L. Allen’s line and running up on East side of creek over this land; also a right of way for road to be kept open from the above road out to the Beaverdam Road near Alston’s Chapel, or schoolhouse.

The requisite intent to reserve the two rights-of-way is plain and unmistakable. The reservation of the easement refers to “a road for wagons and all purposes” and to “a right of way for a road to be kept open from the above road out to the Beaverdam Road.” The evidence showed that these two roads were being used across the property in question at the time of the reservation.

Plaintiffs introduced surveys, photographs, and maps enabling the trier of fact to conclude that recognizable roadways exist and follow identifiable courses and distances. To establish the existence of the road prior to the 1914 reservation, the plaintiffs produced the testimony of four witnesses between the ages of seventy-six and eighty-four. Having grown up on or near the land in question, these men identified plaintiffs’ exhibits above as the same roads referred to in the 1914 deed.

[Referring to a map of the first right-of-way.]

Q. Did you ever drive on the road?

A. Oh yes, I used to deliver groceries up there at that house. ... I drove on that road ever since 1913. I’ve been up and down it ever since 1913. I’ve driven a horse and wagon and buggy and Ford automobile and a Rio truck. I’ve been up there in everything about you can move on.

[The second right-of-way.]

Now I’m going to hand you what’s been marked Plaintiffs’ Exhibits 28 and 29 and ask you if that is a picture of the road that led to Austins’ Chapel.

A. Yes, that’s where they crossed the creek and went up. Yes, used to carry water out of that spring to the schoolhouse to school there. That road is different from the one to Mr. Allen’s tract of land, it runs up to the left around the barn and up by the spring. . . .

Everybody used the road going to the left, Dawson Chapel Road at that time, was a main road up through there. . . . It was open for wagons, buggies and anything. The kids would come to school using that road. The road going to Mr. Allen’s property I’d say, it’s 12, 15 feet. Two cars could pass on it. You’d have to pull off if you met anybody.

Had to use Alston’s Chapel Road, use to be the only road there was, had to go that way to get to Beaverdam. I passed people on the road into the Allen property, they would sometimes be walking, in a buggy, and a T Model Ford, or some of them had automobiles.

The law endeavors to give effect to the intention of the parties, whenever that can be done consistently with rational construction. 2 Thompson, Real Property § 332 (1980). When the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land—never to create description. Thompson v. Umberger, supra, 221 N.C. 178, 19 S.E. 2d 484; Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E. 2d 889 (1939). When, as here, the ambiguity in the description is not patent but latent— referring to something extrinsic by which identification might be made—the reservation will not be held to be void for uncertainty. Oliver v. Emul, supra, 277 N.C. 591, 178 S.E. 2d 393; Thompson v. Umberger, supra. 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. Borders v. Yarbrough, supra, 237 N.C. 540, 75 S.E. 2d 541.

The decision of the Court of Appeals is reversed, and the case is remanded to that court for further remand to the Superior Court, Haywood County, for reinstatement of the judgment rendered therein.

Reversed and remanded.

Justice MITCHELL did not participate in the consideration or decision of this case.