Swaim v. Simpson

Court of Appeals of North Carolina

Swaim v. Simpson

463 S.E.2d 785, 120 N.C. App. 863, 1995 N.C. App. LEXIS 941

CourtCourt of Appeals of North Carolina

DecidedNovember 21, 1995

DocketCOA94-1205

StatusPublished

Cited by20 cases

This text of 463 S.E.2d 785 (Swaim v. Simpson) 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

Swaim v. Simpson, 463 S.E.2d 785, 120 N.C. App. 863, 1995 N.C. App. LEXIS 941 (N.C. Ct. App. 1995).

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Opinions

ARNOLD, Chief Judge.

Defendants argue that the trial court erred by increasing the extent and scope of the easement. They maintain that “[n]o language [864]*864exists in any of the deeds of record which suggest that the scope of easement was anything other than an access easement to and from the state road.” Conversely, plaintiff argues that the grantors clearly “intended to provide the owners . . . with an easement sufficient to maintain a residence, which would logically include access and utilities.”

The purpose of an easement “should be set forth precisely.” I Patrick K. Hetrick & James B. McLaughlin, Jr., Webster’s Real Estate Law in North Carolina § 15-9 (4th ed. 1994). When the scope and extent of an easement is in debate, the following rules apply:

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.

Id. at § 15-21; see also Williams v. Abernethy, 102 N.C. App. 462, 464-65, 402 S.E.2d 438, 440 (1991) (stating that “[wjhen an easement is created by an express conveyance and the conveyance is ‘perfectly precise’ as to the extent of the easement, the terms of the conveyance control”).

Here, plaintiff was granted an express easement over Lot Six. The grant states that “[a]lso conveyed herewith is an easement of right of way for ingress and egress to the above described tract to N. C. S. R. #1146, and which easement is more fully described in that conveyance recorded in Book 233, page 210 ... on April 30, 1982.” The easement, in Book 233, page 210, is described as “providing access of ingress and egress to and from” plaintiffs lots.

Generally, “once an easement has been established, the easement holder must not change the use for which the easement was created so as to increase the burden of the servient tract.” Webster’s, supra, § 15-21 (italics omitted). In construing the easement to provide for the location, installation, and maintenance of facilities for domestic utilities, the trial court increased the use of the easement and the burden on the servient estate. Had the grantors intended a greater use, such [865]*865use should have been specified. See Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962) (stating that “[w]hen 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”). Because the deed identified the easement as one for ingress and egress, the trial court erred in expanding its use.

The trial court’s order is reversed and this case is remanded for entry of summary judgment for defendants.

Reversed and remanded.

Judge MARTIN, Mark D., concurs. Judge JOHNSON dissents with a separate opinion.

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ARNOLD, Chief Judge.

Defendants argue that the trial court erred by increasing the extent and scope of the easement. They maintain that “[n]o language [864]*864exists in any of the deeds of record which suggest that the scope of easement was anything other than an access easement to and from the state road.” Conversely, plaintiff argues that the grantors clearly “intended to provide the owners . . . with an easement sufficient to maintain a residence, which would logically include access and utilities.”

The purpose of an easement “should be set forth precisely.” I Patrick K. Hetrick & James B. McLaughlin, Jr., Webster’s Real Estate Law in North Carolina § 15-9 (4th ed. 1994). When the scope and extent of an easement is in debate, the following rules apply:

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.

Id. at § 15-21; see also Williams v. Abernethy, 102 N.C. App. 462, 464-65, 402 S.E.2d 438, 440 (1991) (stating that “[wjhen an easement is created by an express conveyance and the conveyance is ‘perfectly precise’ as to the extent of the easement, the terms of the conveyance control”).

Here, plaintiff was granted an express easement over Lot Six. The grant states that “[a]lso conveyed herewith is an easement of right of way for ingress and egress to the above described tract to N. C. S. R. #1146, and which easement is more fully described in that conveyance recorded in Book 233, page 210 ... on April 30, 1982.” The easement, in Book 233, page 210, is described as “providing access of ingress and egress to and from” plaintiffs lots.

Generally, “once an easement has been established, the easement holder must not change the use for which the easement was created so as to increase the burden of the servient tract.” Webster’s, supra, § 15-21 (italics omitted). In construing the easement to provide for the location, installation, and maintenance of facilities for domestic utilities, the trial court increased the use of the easement and the burden on the servient estate. Had the grantors intended a greater use, such [865]*865use should have been specified. See Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962) (stating that “[w]hen 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”). Because the deed identified the easement as one for ingress and egress, the trial court erred in expanding its use.

The trial court’s order is reversed and this case is remanded for entry of summary judgment for defendants.

Reversed and remanded.

Judge MARTIN, Mark D., concurs. Judge JOHNSON dissents with a separate opinion.

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463 S.E.2d 785, 120 N.C. App. 863, 1995 N.C. App. LEXIS 941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swaim-v-simpson-ncctapp-1995.

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