Harris v. Greco

318 S.E.2d 335, 69 N.C. App. 739, 1984 N.C. App. LEXIS 3590
CourtCourt of Appeals of North Carolina
DecidedAugust 7, 1984
Docket8321DC885
StatusPublished
Cited by5 cases

This text of 318 S.E.2d 335 (Harris v. Greco) 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
Harris v. Greco, 318 S.E.2d 335, 69 N.C. App. 739, 1984 N.C. App. LEXIS 3590 (N.C. Ct. App. 1984).

Opinion

ARNOLD, Judge.

In the judgment describing defendant’s easement, the trial court made the following findings of fact:

VIII. George Phillips, a Winston-Salem attorney, was the Executor of an estate which owned plaintiffs’ and defendant’s above described tracts of land (with the exception of the 10 acre tract of land owned by the defendant). George Phillips, as Executor, was a common grantor to plaintiffs and defendant of the above described two tracts of land. George Phillips testified that a roadway or pathway for vehicles existed prior to the land being severed and that said roadway or pathway extended from Balsom Road north over the property of the plaintiffs and continued north through the property of defendant. George Phillips further testified that the said pathway or roadway was the only feasible method of traversing the property in a vehicle and that he had used the said roadway or pathway every time he had gone across the property. He further testified that it was the intent in drafting the deeds in question (which he drafted) that the defendant have a 30-foot easement from her property in a southerly direction to Balsom Road across the property of the plaintiffs and that the easement would not terminate until there was a dedication of a public street from Balsom Road all the way to defendant’s 7.1 acre tract of land. He further testified that it was the intention of the parties at the time of the drafting of the deeds that defendant’s 30-foot easement would be at the location of the roadway or pathway.
IX. Defendant testified that in October, 1980, she placed one truckload of gravel on the land of the plaintiffs over what she testified to be the old pathway or roadway. The gravel which defendant placed on the property of the plaintiffs extended from the above mentioned dedicated street (Bashavia Drive) to defendant’s 7.1 acre tract in a straight line. George Phillips testified that the gravel placed by the defendant was *743 approximately along the old roadway or pathway. Defendant also testified that a roadway extends from the southern boundary of her 7.1 acre tract of land in a northerly direction and in a straight line to two gate posts located in the northern property line of defendant’s 7.1 acre tract and in the southern property line of defendant’s 10 acre tract and that the roadway had existed for years. Defendant testified that the gravel which she placed across the property of the plaintiffs is in an approximate straight line from the above described roadway extending across defendant’s 7.1 acre tract to the public street dedicated by the plaintiffs and that the distance of the gravel is approximately 200 to 300 feet. Defendant testified that she felt that she had no choice as to the location of her easement and as to the placing of the gravel.
X. Plaintiff, Clifford M. Harris, testified that approximately two weeks after defendant placed the gravel across the land of the plaintiffs, he placed a “no trespass” sign in the middle of the path. Defendant immediately removed the “no trespass” sign. Plaintiffs made no further objection to the gravel roadway of the defendant until the filing of this lawsuit on November 13, 1981, except for a suggestion of an alternative route to be used by the defendant. All of the parties testified that defendant has continued to travel across the gravel roadway since the placing of the gravel on the roadway. Defendant testified that the pathway along which the defendant laid the gravel is the shortest route from her property to the dedicated road (Bashavia Drive), is located on a high point of land, and is the most convenient and direct route to the road. There was evidence by plaintiffs and defendant that the land to the west of the gravel road slopes downward to the property of the defendant, but there was conflicting evidence as to the degree of the slope and whether there were any trees or obstacles in that area. The plaintiffs suggested an alternative route to the defendant which route would have been an L shaped road proceeding west from the northern point of Bashavia Drive (the dedicated street) to approximately the western boundary line of the plaintiffs’ property and then in a northerly direction to the defendant’s property. Defendant and her son testified *744 that the alternate route was not feasible, would involve a great expense, was a much longer route, and that the gravel had already been placed and the road was already being used.
XI. Defendant testified that at no time did the plaintiffs offer any specific easement to her other than on one occasion in 1980 suggesting to her an alternative route.
XIII. The defendant is entitled to a 30-foot wide easement from defendant’s southern boundary line (of her 7.1 acres tract) across the above described 30.1 acre tract of the plaintiffs) to Balsom Road as hereinafter more particularly described in the Judgment, and defendant is entitled to said easement until there is a dedication of a public street all the way from Balsom Road to defendant’s above described 7.1 acre tract.

Plaintiffs have assigned error to findings of fact XI and XIII and to bracketed portions of these remaining findings of fact on grounds that they are not supported by the evidence. We agree that there is no evidence in the record to support the last sentences in findings of fact VIII and X. However, since the remaining findings of fact are supported by ample evidence, and, in turn, support defendant’s entitlement to the particularly described easement, plaintiffs were not prejudiced.

Plaintiffs next argue that it was error for the trial court to enter the judgment entitling defendant to the described easement, because the facts do not support an express easement, an implied easment from prior use or an implied easement by necessity. We agree that the easement described in the parties’ deeds is not express, because it is not “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 does not furnish any means by which the location of the proposed easement may be ascertained.

There also appears to be insufficient evidence to support an implied easement from prior use, also referred to as quasi-easement. One of the requirements of this easement is that before the dominant and servient tracts of land were separated, the use giv *745 ing rise to the easement shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent. See Dorman v. Ranch, Inc., 6 N.C. App. 497, 170 S.E. 2d 509 (1969), and Glenn, Implied Easements in the North Carolina Courts: An Essay on the Meaning of “Necessary, ” 58 N.C. L. Rev. 223 (1980). The evidence in the case on appeal does not meet this requirement. It, instead, establishes an implied easement by necessity beginning on plaintiffs’ property where Bashavia Drive intersects Balsom and running northward across plaintiffs’ tract along the gravel road to the southern boundary of defendant’s land.

An easement by necessity is implied on proof of two elements:

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Cite This Page — Counsel Stack

Bluebook (online)
318 S.E.2d 335, 69 N.C. App. 739, 1984 N.C. App. LEXIS 3590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-greco-ncctapp-1984.