Stonecreek Sewer Ass'n v. Morgan Developer

635 S.E.2d 485, 179 N.C. App. 721, 2006 N.C. App. LEXIS 2131
CourtCourt of Appeals of North Carolina
DecidedOctober 17, 2006
DocketNo. COA06-311.
StatusPublished
Cited by2 cases

This text of 635 S.E.2d 485 (Stonecreek Sewer Ass'n v. Morgan Developer) 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
Stonecreek Sewer Ass'n v. Morgan Developer, 635 S.E.2d 485, 179 N.C. App. 721, 2006 N.C. App. LEXIS 2131 (N.C. Ct. App. 2006).

Opinion

TYSON, Judge.

Harvey H. and Doris W. Moore (the "Moores") appeal from order entered holding Stonecreek Sewer Association, Mitchell K. and Sherri Woody, George W. and Sharon Gould, Danny Dewitt and Linda Darlene Burnett, David Richard and Julie Fore Kindley, Teresa E. Whitmire, Christopher T. Mall, Perry R. and Gail E. Scott (collectively, "plaintiffs"), property owners for lots 1, 3, 5, 7, 9, 11, and 13, own a non-exclusive easement on the Moores's property. We affirm.

I. Background

On 10 May 1989, the Moores conveyed an express easement to Gary D. Morgan Developer, Inc. ("Morgan") for "constructing, maintaining, repairing, replacing, expanding and otherwise dealing with a sewage treatment plant[.]" The deed contained the following language:

It is understood that [Morgan], its successors in interest and assigns, shall not provide sewage services using the easement and right of way tract and sewer line easement specified in this instrument other than to Lots 1, 3, 5, 7, 9, 11, 13, & 15 of Stone Creek Subdivision as shown on the plat recorded in Plat Slide 536, Henderson County Registry.

It is expressly acknowledged, confirmed and agreed by [the Moores], their heirs and assigns, and [Morgan] herein, its successors in interest, assigns and future Grantees, that [Morgan], its successors in interest and assigns, plans to construct a sewage treatment facility on the above described easement and right of way tract. As a part of the consideration for this conveyance, [the Moores] hereby convey *487[sic], and [Morgan] hereby accepts this deed SUBJECT to the restriction, which shall run with the said tract of land, that said tract of land as described herein shall be used and possessed by [Morgan], its successors, assigns and future Grantees, only for the purpose of location and operation of said "sewage treatment plant or facility" as previously referred to herein. That in the event [Morgan], its successors, assigns or future Grantees, cease to use said tract of land for the location and operation of said "sewage treatment plant or facility" as referred to and defined herein, then, in that event, the easement and right of way for the use and possession of said tract of land and the sewer line easement, together with all easements and improvements hereon, shall automatically revert to [the Moores], their heirs and assigns, immediately; and [the Moores], their heirs and assigns, shall have the immediate right to re-enter said premises and to possess the same.

(Emphasis supplied).

On 11 May 1989, Morgan conveyed an easement ("the Agreement") to Stone Creek Subdivision Lot Owners three and five to use the sewage treatment facility. On 12 May 1989, Henderson County Health Department (the "Health Department") granted Morgan a septic tank system improvements permit to "install system per Lapsley plans." On 2 January 1990, the Health Department approved Morgan's septic tank installation because it was "installed close enough to the plans by William G. Lapsley & Associates to be acceptable."

On or about 13 April 2000, a leak occurred in the force main leading to the septic drain field causing water to back up in the sewage treatment system. The Moores and Morgan prevented plaintiffs from entering the property to repair the leak. On 17 April 2000, plaintiffs filed a complaint and petition for declaratory judgment against the Moores and Morgan. Later that day, the trial court granted an ex parte temporary restraining order that prohibited the Moores and Morgan from harming, assaulting, or interfering with plaintiffs entering the septic drainfield to inspect and repair the sanitary sewage system. On 15 September 2001, plaintiffs voluntarily dismissed their complaint.

On 10 September 2002, the Health Department sent a letter to plaintiffs stating, "[t]he septic system was found to be malfunctioning (sewage on the ground surface) and in poor state of disrepair." The Health Department required plaintiffs to repair the septic system within thirty days, or it would take legal action.

On 26 September 2002, plaintiffs filed a complaint against and the Moores and Morgan for declaration of an easement, a temporary restraining order, a preliminary injunction, a permanent injunction and punitive damages. On 18 October 2002, the trial court granted an ex parte temporary restraining order that prohibited the Moores and Morgan from harming, assaulting, or interfering with plaintiffs inspecting and repairing the sanitary sewage system to correct the current malfunction. On 14 October 2002, the trial court entered a consent order. The parties agreed, without prejudice to any of the parties, that plaintiffs may enter the Moores's property to inspect and repair the septic systems. On 26 March 2003, the Health Department issued an operating permit to plaintiffs to mow the septic tank drain field.

On 21 February 2005, the parties stipulated to the trial court the issues in this action are:

(1) [w]hat rights (if any) do the Plaintiffs, their successors in title, now have relative to the said 2.03 acre tract by virtue of the non-exclusive right of way and easement created by that instrument recorded in Deed Book 737 at Page 481, Henderson County Registry; and (2) [w]hat rights (if any) do Defendants Moore, their successors in title, now have relative to the said 2.03 [sic] acre tract.

The parties agreed for the trial court to determine these issues, and waived their right to a jury trial.

On 31 July 2005, the trial court ordered: (1) plaintiffs own a non-exclusive easement in the 2.03 [sic] acre tract owned by defendants; (2) plaintiffs shall continue to operate, maintain, repair and replace, if necessary, the *488waste water treatment system, plant or facility on said property; (3) plaintiffs have the right to mow that portion of the 2.03 [sic] acre tract; and (4) defendants may make reasonable use of the 2.03 [sic] acre tract, provided such use shall not unreasonably interfere with plaintiffs' ability to operate the waste water treatment system, plant or facility located thereon. The Moores appeal.

II. Issues

The Moores argue: (1) the evidence fails to support the findings of fact; (2) the findings of fact fail to support the conclusions of law; (3) the findings of fact and conclusions of law fail to support the judgment; (4) plaintiffs do not own an easement encumbering their property for use of a septic drain field; and (5) any easement created was extinguished and title reverted to them.

III. Standard of Review

"The standard of review on appeal from a non-jury trial is `whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.'" East Market Street Square, Inc. v. Tycorp Pizza IV, Inc., ___ N.C.App. ___, ___, 625 S.E.2d 191, 196 (2006) (quoting Shear v. Stevens Building Co., 107 N.C.App. 154, 160,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Edwards v. Hill
703 S.E.2d 452 (Court of Appeals of North Carolina, 2010)
Newcomb v. County of Carteret
701 S.E.2d 325 (Court of Appeals of North Carolina, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
635 S.E.2d 485, 179 N.C. App. 721, 2006 N.C. App. LEXIS 2131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stonecreek-sewer-assn-v-morgan-developer-ncctapp-2006.