Cochran v. Keller, 352 S.E.2d 458

Cochran v. Keller

352 S.E.2d 458

N.C. Ct. App.

1987

Check Treatment

EAGLES, Judge.

Defendant assigns error to the trial court granting plaintiffs’ motion for a directed verdict on the basis that “as a matter of law, the language of [the] easement is not ambiguous and that [the] easement is appurtenant to the lands of Plaintiffs.” Defendant contends that the easement is not appurtenant to the lands of *210the plaintiffs but appurtenant to the lands of James C. Boozer and that the trial court should have directed a verdict in defendant’s favor on this issue. Alternatively, defendant argues that the language of the easement is ambiguous and that the trial court erred in not submitting the issue to the jury. We agree that the language creating the easement is ambiguous and the trial court erred in directing a verdict for plaintiffs on this issue.

A trial court may grant a directed verdict in favor of the party with the burden of proof when the credibility of that party’s evidence is manifest as a matter of law. Bank v. Burnette, 297 N.C. 524, 256 S.E. 2d 388 (1979). This means that the evidence must so clearly establish the facts in issue such that no reasonable inferences to the contrary can be drawn. Id. In Burnette the court listed three recurrent situations where credibility is manifest.

(1) Where non-movant establishes proponent’s case by admitting the truth of the basic facts upon which the claim of proponent rests.

(2) Where the controlling evidence is documentary and non-movant does not deny the authenticity or correctness of the documents.

(3) Where there are only latent doubts as to the credibility of oral testimony and the opposing party has “failed to point to specific areas of impeachment and contradictions.”

Id. at 537-38, 256 S.E. 2d at 396.

Here the controlling evidence is documentary, consisting of deeds in plaintiffs’ and defendant’s chains of title. The disputed easement was created by express grant from Fred C. Hunter and wife to Carl McCrary in 1963. It is not disputed that the deed creates an appurtenant easement. An appurtenant easement is one created for the purpose of benefiting particular land. P. Hetrick, Webster’s Real Estate Law in North Carolina Section 306 (rev. ed. 1981). It requires two tracts of land owned by two different persons. The dominant tract is the tract benefited by the easement. The servient tract is the tract burdened by the easement for the benefit of the dominant tract. Id. An appurtenant easement is attached to and passes with the dominant tract. The easement cannot exist separate from the dominant tract and *211as a result cannot be conveyed separate from land to which it is appurtenant. Id. An appurtenant easement created by express grant must be described with reasonable certainty including a description of the dominant and servient tracts to be benefited and burdened. Id. at section 311.

An easement deed is a contract. Lovin v. Crisp, 36 N.C. App. 185, 243 S.E. 2d 406 (1978). When such contracts are plain and unambiguous their construction is a matter of law for the courts. Id. Here the easement deed is not plain and unambiguous. Tract #1 describes a right-of-way 40 feet in width for the purpose of ingress and egress to the property purchased by Carl McCrary from the Breese heirs. It has been stipulated by the parties that only Parcel 14 (now owned by James C. Boozer) was purchased by Carl McCrary from the Breese heirs. While this description in and of itself is not ambiguous, the metes and bounds description does not describe a tract of land attached to or contiguous to Parcel 14. It describes a 40 foot wide tract of land extending from Caldwell Street along the southern boundary of Parcel 7 to Parcel 15. At the time of the easement deed Carl McCrary did own Parcel 15 but he did not acquire it from the Breese heirs. Parcel 15 was purchased from the stockholders of Purity Products Co.

To further complicate matters, Tract #2 describes “a right of way 22 feet in width for the purpose of ingress and egress to the property of the grantee [Carl McCrary]” (emphasis added) which could include either Parcel 14 or Parcel 15 or both. However, the metes and bounds description provides for a 22 foot wide strip of land, intersecting and overlapping one end of Tract #1 and extending the length of the boundary between Parcels 15 and 7 to Parcel 14.

An instrument creating an easement should describe with reasonable certainty the easement created and the dominant and servient tracts to be benefited and burdened. Hensley v. Ramsey, 283 N.C. 714, 199 S.E. 2d 1 (1973). The description in the 1963 deed is sufficiently certain to permit location of the easement itself and identification of the servient tract (Parcel 7). However, there exists a latent ambiguity in the description with respect to the identification of the dominant tract. It is not clear from the language of the 1963 easement deed that, as a matter of law, Tract #1 was created to benefit Parcel 15 owned by the plaintiffs. *212It is not clear whether the parties to the conveyance intended to create one easement or two, or whether they intended to benefit all of the lands then owned by the grantee Carl McCrary or just Parcel 14. A latent ambiguity “will not be held to be void for uncertainty but parol evidence will be admitted to fit the description to the thing intended.” Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E. 2d 484, 485 (1942). From the evidence presented at trial there exists a genuine issue of fact as to which property the parties to the deed intended to benefit. A genuine issue of fact must be tried by a jury unless the right is waived. Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971). The question of intent is one for the jury and in order to ascertain that intent it is necessary to look at the subject matter involved, the situation of the parties at the time of the conveyance and the purpose sought to be accomplished. Shingleton v. State, 260 N.C. 451, 133 S.E. 2d 183 (1963). See Communities, Inc. v. Powers, Inc., 49 N.C. App. 656, 272 S.E. 2d 399 (1980).

The credibility of plaintiffs’ evidence is not manifest as a matter of law. While the controlling evidence is documentary and the authenticity of these documents is not disputed, they do not clearly establish that the easement was created to benefit plaintiffs’ property. Disputed factual issues remain to be resolved by a jury. Accordingly, we hold that the trial court erred in directing a verdict on this issue in plaintiffs’ favor.

Defendant assigns error to the trial court granting a directed verdict in favor of plaintiffs on the issue of adverse possession. At this point we cannot decide the issue raised by this assignment of error. The propriety of the trial court’s ruling on the adverse possession issue depends upon how the question of which tract of land is the dominant tract is resolved. We have reviewed defendant’s remaining assignments of error and find no prejudicial error.

Reversed and remanded for a new trial.

Judges Arnold and Johnson concur.