In their first assignment of error, defendants contend the trial court erred in concluding plaintiffs are entitled to make full
In asserting that plaintiffs have no right to make use of the property within Pat’s Place Lane, defendants rely upon
Rollinwood Homeowners Association v. Jarman, Inc.,
We do not consider
Rollinwood
to be dispositive of the present case. In
Rollinwood
the owners of the servient tenement attempted to make a use of the easement which was clearly contrary to the express purpose of the easement. In the present case, defendants
contend that Ms. Malloy intended for them to be the
only ones
to use the easement for ingress and regress since the easement was the sole access to their property and the grant was “exclusive.” In determining what uses the servient tenement may make of the land within the easement the court should look to the words of the deed or instrument creating the easement.
Hine v. Blumenthal,
Ms. Malloy conveyed Lot 3 to the Bolins burdened with this easement. She elected not to retain the fee simple title to this fifteen feet of property or to convey it in fee simple to the Michaels. To have done so would have established her intent to give defendants an “exclusive” right to Pat’s Place Lane. However, to now exclude the servient tenement owner from using the property within the easement would indeed produce an “unusual” result. Absent explicit language to the contrary, the owner of land subject to an easement has the right to continue to use his land in any manner and for any purpose which is not inconsistent with the reasonable use and enjoyment of the easement.
Chesson v. Jordan,
Defendants next contend the trial court erred in ordering them to remove the fence which they had constructed to keep plaintiffs from using the easement. We note that an easement holder may not increase his use so as to increase the servitude or increase the burden upon the servient tenement. P. Hetrick,
Webster’s Real Estate Law in North Carolina
Sec. 328 (rev. ed. 1981). If the easement holder makes an unwarranted use of the land in excess of the easement rights held, such use will constitute an excessive use and may be enjoined.
Hales v. Atlantic Coast Line Railroad Co.,
As previously discussed, plaintiffs have the right to use their property within the easement consistent with the purpose for which the easement was created. However, by erecting the fence defendants have prevented plaintiffs from using Pat’s Place Lane for egress and regress to Lot 3. Accordingly, the trial court properly entered
Affirmed.
