71 N.C. App. 743 | N.C. Ct. App. | 1984
Defendant appeals from the trial judge’s grant of plaintiffs’ motion for summary judgment, ordering him to proceed with the purchase of two tracts of land from plaintiffs. Plaintiffs’ motion came at the end of all the evidence, and would have been more appropriately framed as a motion for directed verdict. Because the two motions are functionally similar, see Williams v. Carolina Power & Light Co., 296 N.C. 400, 404, 250 S.E. 2d 255, 258 (1979); Dendy v. Watkins, 288 N.C. 447, 452, 219 S.E. 2d 214, 217 (1975),
The defendant testified that he desired to purchase the property at-issue in this case in order to build warehouses on it, subdivide the land, and then sell or lease the warehouses. He testified also that the plaintiffs’ real estate agent represented to him that this would be possible, and that there would be no problems with easements. Plaintiff said that he requested plaintiffs’ real estate agent to draft a provision in the binder, making the sale contingent on his having access to Rhyne Road over the present right of way across the Livingston Coating Company’s property. The “present right of way” was an easement of ingress and egress apparently granted by the Livingston Company in 1976 to the plaintiffs and to the Davant Realty Company, which owned adjacent property.
Under the subdivision ordinance in effect in Mecklenburg County at the time of the negotiations and attempted transaction, the defendant could not have subdivided the property in dispute unless each subdivided lot had frontage on a public road. Defendant discovered at some point, apparently after he signed the binder, that the easement across the Livingston Company’s property was a private easement, not open to the general public. When he discovered this, he decided not to go through with the closing. Defendant’s testimony indicates that Mr. Black, the plaintiffs’ real estate agent, came back to defendant’s office after the binder was signed, and attempted to work out the easement problems. Mr. Black has testified in an affidavit that he made no representation to defendant about possible uses of the land.
We note that had defendant gone through with the purchase he would have received a sixty foot strip of land connecting the main tract of twenty-six acres with North Carolina Highway 27. It was then possible that he might have had another outlet to a public road, although this may have been restricted by the railroad and the thirty foot private easement, which crossed the strip before it reached the highway. What matters, though, is that defendant’s primary concern in entering the contract for sale of land, as evidenced by his insistence on the contingency clause, was the easement across the Livingston Company’s land to Rhyne Road. The fact that there might have been another right of way may go to the questions of whether defendant had reason to be concerned about access, and accordingly of whether his testimony about his objectives and*Mr. Black’s representations to him is credible, but it does not compel us to rule as a matter of law that there was no mutual mistake as to the potential uses of the easement.
We observe finally that our doubts about the propriety of the directed verdict are heightened by the lack of any document in the record specifically describing the conditions of the Livingston Company’s easement. The grant of easement dated 24 August 1976 (Defendant’s Exhibit 2), is a grant from the plaintiffs to the Davant Realty Company of a right of way across plaintiffs’ land, most of which is the subject of this suit. The grant mentions the Livingston easement “of ingress and egress,” which ensures ac
We see no need to reach the other issues raised by the defendant.
Reversed and remanded.