Beechridge Development Co. v. Dahners

511 S.E.2d 18, 132 N.C. App. 181, 1999 N.C. App. LEXIS 85
CourtCourt of Appeals of North Carolina
DecidedFebruary 2, 1999
DocketNo. COA98-348
StatusPublished
Cited by2 cases

This text of 511 S.E.2d 18 (Beechridge Development Co. v. Dahners) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beechridge Development Co. v. Dahners, 511 S.E.2d 18, 132 N.C. App. 181, 1999 N.C. App. LEXIS 85 (N.C. Ct. App. 1999).

Opinions

LEWIS, Judge.

Plaintiff acquired an undeveloped tract south of the Morgan Creek Hills subdivision in Chapel Hill and wished to use the “public easement” on a portion of the Morgan Creek Hills property for the installation of a sanitary sewer line to service the development of this tract. This “public easement” was denominated as such in a plat [182]*182recorded on 7 October 1966 in the Orange County Registry, titled “Final Plat Section One of Morgan Creek Hills Subdivision.” The easement was one of two running along the outer edges of the subdivision that were labeled on the plat, the other being a “sanitary sewer easement” on the northern portion of the property.

Plaintiff filed an amended complaint for declaratory judgment on 9 January 1997, seeking “a declaration by the [trial court] that the ‘Public Easement’ shown on the plat recorded at Plat Book 15, Page 119, Orange County Registry is an offer of dedication of an easement for public use which OWASA [(Orange Water and Sewer Authority)] might accept pursuant to its statutory authority.” On 3 September 1997, the trial court ordered the case placed on the trial calendar for the term commencing 20 October 1997. Plaintiff filed a motion for summary judgment on 4 September, with a notice of hearing on the motion set for 20 October. On 20 October, the trial court conducted a non-jury trial with the parties’ consent and made findings of fact and conclusions of law in favor of plaintiff. From this judgment, defendants Dahners, Kitson, Sherman, and Burrill appeal.

Among appellants’ six arguments, we need address only those regarding the trial court’s use of the evidence to determine the scope of the “public easement” on the plat. In making its findings of fact, the trial court relied on the public records in evidence to find that: the preliminary plat submitted to the Town showed a thirty-foot wide storm and sanitary sewer easement which is the subject of this proceeding; the Chapel Hill Board of Aldermen approved the preliminary plat at its meeting of 12 September 1966 with the stipulation that the easement in question also be designated as a public right-of-way; the town manager erroneously notified the developer of the Morgan Creek Hills subdivision that the preliminary plat had been approved with conditions including a requirement that the “[e]asements shown on the plan as storm and sanitary sewer easements should be shown as public easements in accordance with the preliminary plan [sic]”; and, because of this error, the plat that was recorded by the developer described the easement at issue as a public easement and not a storm and sanitary sewer easement with public right-of-way, as the Board of Aldermen actually required. With only the town’s records available as evidence at trial and no testimony from the grantor other than the printed plat, the trial court then concluded that “Morgan Creek Hills [sic] Land Company intended the recording of the Plat to be an offer of dedication of the Easement described on the Plat as a public easement for acceptance as a sanitary sewer easement.” At no point in its [183]*183judgment, however, did the trial court determine whether the term “public easement” was ambiguous. To use extrinsic evidence to determine the grantor’s intent without first determining whether this intent could be ascertained from within the four corners of the plat constitutes reversible error, as will be set out below.

Appellants argue that in determining the purpose and extent of an easement, the trial court should be guided by the method provided in our case law:

First, the scope of an express easement is controlled by the terms of the conveyance if the conveyance is precise as to this issue. Second, if the conveyance speaks to the scope of the easement in less than precise terms (i.e., it is ambiguous), the scope may be determined by reference to the attendant circumstances, the situation of the parties, and by the acts of the parties in the use of the easement immediately following the grant. Third, if the conveyance is silent as to the scope of the easement, extrinsic evidence is inadmissible as to the scope or extent of the easement. However, in this latter situation, a reasonable use is implied.

Swaim v. Simpson, 120 N.C. App. 863, 864, 463 S.E.2d 785, 786-87 (1995) (quoting I Patrick K. Hetrick & James B. McLaughlin, Jr., Webster’s Real Estate Law in North Carolina, § 15-21 (4th ed. 1994)), aff’d per curiam, 343 N.C. 298, 469 S.E.2d 553 (1996). We agree with appellants and their assertion that the trial court did not properly follow these steps.

In this action, the trial court proceeded to the second step of the analysis above and considered attendant circumstances without first determining if the conveyance itself, the plat, was precise in its terms. “When the language ... 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.” Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962). Here, the language of the final plat clearly and unambiguously indicated that the Morgan Creek Land Company wished to create a “sanitary sewer easement” on the northern portion of the subdivision and a “public easement” on the southern side of the property. Had the developer’s chosen terms been “less than precise,” the court could have considered attendant circumstances, as well as the manner in which the easement has been used since the time of its dedication. Swaim, 120 N.C. App. at 864, 463 S.E.2d at 786. Even then, it would seem difficult to ascertain the grantor’s intent in creating the [184]*184“public easement” by examining only the town’s requests to the grantor and ignoring the plain language of what the grantor provided and the town approved in return. The plat and the dedication therein were recorded in 1966 and apparently have since been unchallenged until now.

Plaintiff cited no cases or statutes and presented no evidence at trial or on appeal to indicate that, from a legal perspective, the phrase “public easement” is so ambiguous as to require judicial interpretation. Plaintiff did not argue that a private developer’s use of a public easement to service an adjacent subdivision is an appropriate public use of such an easement. At no point during the trial or appeal did plaintiff present a theory under N.C. Gen. Stat. § 136-96 (1993) that it has a right to at least part of the easement as the owner of adjacent land because the easement was not “actually opened and used by the public within 15 years from and after the dedication,” and was created by a corporation which is no longer in existence. Essentially, its only argument was that an error occurred behind the scenes, and that an examination of evidence other than the plat itself will explain why this public easement is in fact a sanitary sewer easement.

Plaintiff cites this Court’s decision in Sampson v. City of Greensboro, 35 N.C. App. 148, 240 S.E.2d 502 (1978), to support the notion that this “public easement” should be converted into a sanitary sewer easement.

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Related

Fisher v. Virginia Electric and Power Co.
243 F. Supp. 2d 538 (E.D. Virginia, 2003)
Beechridge Development Co. v. Dahners
516 S.E.2d 592 (Supreme Court of North Carolina, 1999)

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Bluebook (online)
511 S.E.2d 18, 132 N.C. App. 181, 1999 N.C. App. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beechridge-development-co-v-dahners-ncctapp-1999.