Hanner v. Duke Power Co.

Court of Appeals of North Carolina

Hanner v. Duke Power Co.

239 S.E.2d 594, 34 N.C. App. 737, 1977 N.C. App. LEXIS 1806

CourtCourt of Appeals of North Carolina

DecidedDecember 21, 1977

Docket7721SC130

StatusPublished

Cited by8 cases

This text of 239 S.E.2d 594 (Hanner v. Duke Power Co.) 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

Hanner v. Duke Power Co., 239 S.E.2d 594, 34 N.C. App. 737, 1977 N.C. App. LEXIS 1806 (N.C. Ct. App. 1977).

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Opinion

ARNOLD, Judge.

The sole question presented by plaintiff on this appeal is whether there is a genuine issue of material fact which will preclude summary judgment in favor of defendant. See G.S. 1A-1, Rule 56. Plaintiffs specifically argue that the contract of easement is an ambiguous contract which may be made certain by extrinsic evidence and which must be interpreted by a jury under proper instructions of the law. While plaintiffs’ statement of the law regarding ambiguous contracts is correct, Goodyear v. Goodyear, 257 N.C. 374, 126 S.E. 2d 113 (1962), we do not find that the contract of easement in the present case is ambiguous.

Plaintiffs’ argument that the word “crops” as used within the contract is ambiguous is clearly without merit. The contract specifically gave defendant the right to clear trees from the right-of-way, and plaintiffs’ right to grow “crops” was specifically limited by this provision. By the terms of the contract, defendant *739 did not, by agreeing at various times to allow trees to remain, waive its right as stated in the contract.

Defendant did not deny any fact set forth by plaintiffs. There being no ambiguity in the written contract, and, consequently, no genuine issue of material fact, the rights of the parties became a question of law and summary judgment in favor of defendant was properly granted.

Affirmed.

Judges Morris and Hedrick concur.

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ARNOLD, Judge.

The sole question presented by plaintiff on this appeal is whether there is a genuine issue of material fact which will preclude summary judgment in favor of defendant. See G.S. 1A-1, Rule 56. Plaintiffs specifically argue that the contract of easement is an ambiguous contract which may be made certain by extrinsic evidence and which must be interpreted by a jury under proper instructions of the law. While plaintiffs’ statement of the law regarding ambiguous contracts is correct, Goodyear v. Goodyear, 257 N.C. 374, 126 S.E. 2d 113 (1962), we do not find that the contract of easement in the present case is ambiguous.

Plaintiffs’ argument that the word “crops” as used within the contract is ambiguous is clearly without merit. The contract specifically gave defendant the right to clear trees from the right-of-way, and plaintiffs’ right to grow “crops” was specifically limited by this provision. By the terms of the contract, defendant *739 did not, by agreeing at various times to allow trees to remain, waive its right as stated in the contract.

Defendant did not deny any fact set forth by plaintiffs. There being no ambiguity in the written contract, and, consequently, no genuine issue of material fact, the rights of the parties became a question of law and summary judgment in favor of defendant was properly granted.

Affirmed.

Judges Morris and Hedrick concur.

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Bluebook (online)

239 S.E.2d 594, 34 N.C. App. 737, 1977 N.C. App. LEXIS 1806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanner-v-duke-power-co-ncctapp-1977.

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