Stephens v. Dortch, COA00-1430-2, Filed: February 5, 2002 demonstrates some of the difficulties in relying on NCGS Sec. 136-96 in order to remove an encumbrance to land in the form of an existing dedication that limits the owner’s use of the property.

In 1930, an easement was created by an agreement among owners of various lots in the Club Acres subdivision. The owners of a portion of lots 28 and 30 dedicated, to the public, the owners of lots 6, 25, 26, 29, 31 and the owners of the balance of lots 28 and 30, a strip of land on the westerly edge of lot 28 to be used as a roadway. The easement was described in the agreement as beginning at the common point of lots 6, 28 and 30 and extending "to a stake in the Northerly edge of Belvedere Avenue as now laid out."

In 1993, the defendants acquired the westerly portion of lot 28 over which the easement passes and knew of it at the time of purchase. In 1996, the defendants filed a declaration of withdrawal in which they purported to extinguish the easement over lot 28. The plaintiffs own a portion of lots 6 and 28 and claim that the easement is their only means of access to nearby Belvedere Avenue. In 1999, the plaintiffs filed the action seeking a determination that the purported withdrawal was void, so that they would be entitled to use the easement. The defendants counterclaimed, seeking an order determining that the plaintiffs are not entitled to use any portion of defendants' property as a means of access.

In August of 2000, the trial court entered partial summary judgment in favor of plaintiffs. The trial court ruled that the withdrawal of dedication was effective as to members of the general public. The trial court also concluded that the plaintiffs have an easement appurtenant for ingress and egress to their property, and that the easement is only available to and enforceable by the landowners of lots 6, 25, and 28. The trial court further concluded the easement extends from the common corner of all three lots to Belvedere Avenue as laid out at the time the agreement was entered. The court found that there was an issue of material fact as to whether Belvedere Avenue is in now the same location as it was when the agreement was entered.

At the bench trial on the remaining issue of the easement's location, the trial court determined that the easement fell short of reaching Belvedere Avenue by thirty feet. The trial court determined, however, that Belvedere Avenue exists today in the same location as it existed in 1930, and that the call to "a stake in the Northerly edge of Belvedere Avenue as now laid out" was a call to a monument that governs over the distance stated in the agreement. The trial court concluded the easement extends to Belvedere Avenue as it exists today, and provides plaintiffs a means of ingress and egress. The defendants appealed, arguing that the trial court erred by concluding that the withdrawal did not terminate the easement and that they have a right to ingress and egress from their property to Belvedere Avenue by means of the easement.

In their first argument, the defendants contended that the trial court's conclusion that the withdrawal did not terminate the plaintiffs' easement is inconsistent with the express language of N.C. Gen. Stat. Sec. 136-96. This statute creates a presumption of abandonment of any street dedication that has not been opened and used within fifteen years from the dedication. The statute states that upon the registration of a withdrawal of dedication, "no person shall have any right, or cause of action thereafter, to enforce any public or private easement therein." The Court of Appeals disagreed with the defendants’ contention that this language terminates any rights plaintiffs had in the easement area.

The trial court found that plaintiffs' easement is appurtenant to the lots that they own. The Court of Appeals noted the evidence in the record supported the trial court's determination. The court cites Brown v. Weaver-Rogers Assoc., 131 N.C. App. 120, 505 S.E.2d 322 (1998), for the doctrine that "a grant of an easement is reasonably interpreted to be an easement appurtenant where the grant includes such language as 'his heirs and assigns.'" "Likewise, the agreement at issue here states the easement was dedicated to the grantees, ‘their heirs and assigns.’ As in Brown, the agreement in this case does not include the term ‘in gross,’ nor does it contain language such as ‘personally,’ ‘in person,’ or any other language suggesting the grantors intended to limit the easement rights to the named grantees. A reasonable interpretation of the agreement supports the trial court’s finding that the easement is appurtenant to plaintiffs’ land."

The court then embarks upon a short discussion of the characteristics of an appurtenant easement. Citing, Yount v. Lowe, 288 N.C. 90, 97, 215 S.E.2d 563, 567 (1975) and Frost v. Robinson, 76 N.C. App. 399, 400, 333 S.E.2d 319, 320 (1985) the Court of Appeals notes that an appurtenant easement is conveyed and runs with the land. It is not personal to the owner and may not be conveyed separately. Once the Court characterizes the disputed right as an easement appurtenant to the plaintiffs’ lots, it should be unnecessary to devote much attention to a discussion of the law of dedication.

The withdrawal argument might have been simply disposed of with a simple statement to the effect that NCGS Sec. 136-96 only applies to offers of dedication and does not apply to an express easement. Nevertheless, the Court chose to address the defendants arguments in detail. They cited Butler Drive Property Owners Assn. v. Edwards, 109 N.C. App. 580, 427 S.E.2d 879 (1993), for proposition that lot owners rights with respect to dedicated access are distinguished from those of the general public. The court went on to point out that "our Supreme Court has specifically held that N.C. Gen. Stat. § 136-96 ‘has no application and a street may not be withdrawn from dedication, over objection of one owning a lot or lots within the subdivision, if the street 'be necessary to afford convenient ingress or egress to' such lot or lots.’ Janicki v. Lorek, 255 N.C. 53, 59, 120 S.E.2d 413, 418 (1961) (citations omitted)." By reasonable inference of the language in Janicki this Court opined that when it is "established that a lot in a subdivision abuts the street sought to be withdrawn, it will be conclusively presumed that the street is 'necessary to afford convenient ingress or egress' to or from the lot, and, in the absence of consent by the lot owner to the withdrawal, G.S. § 136-96 has no application and the dedication may not be withdrawn irrespective of lapse of time or whether or not the street has been opened and used."

In the next issue, defendants argue that the evidence shows the easement falls short of Belvedere Avenue by thirty feet and therefore, the trial court erred in concluding the easement extends to Belvedere Avenue as it exists today. The trial court in the non-jury trial found facts necessary to determine the exact location of the easement. The discussion of this issue should be pertinent to many property description issues faced by practitioners every day.

The trial court's pertinent findings of fact are quoted from the opinion as follows:
3. The description of the area set aside in the Easement Agreement . . . called for a beginning point at the common boundary of Blocks 6, 28 and 30 of Club Acres and ran from the beginning point to a stake in Highland Road. The description then extended from the stake in Highland Road two courses and distances "to a stake in the northerly edge of Belvedere Avenue as now laid out."

4. When plotted upon the ground, the Easement Area . . . does not extend from the common boundary of Blocks 6, 28, and 30 of Club Acres to the northern margin of Belvedere Avenue as it exists today; the Easement Area falls approximately 30 feet short of Belvedere Avenue.

5. Belvedere Avenue was dedicated prior to November 20, 1930, by a map of Midwood Subdivision dated 1914 and recorded in Book 230 at pages 96 and 97, Mecklenburg County Registry and a Map of St. Andrews Place dated August 1926 recorded in Map Book 3 at page 343, Mecklenburg County Registry.

6. The description to Lots 1 and 2 of Midwood contained in a deed dated May 30, 1930 and recorded in Book 777 at page 417, Mecklenburg County Registry calls for "an iron stake in the northerly margin of Belvedere Avenue, said point being the southeastern corner of Lot No. 1 as shown on the Map of Midwood . . . ."

7. The eastern boundary of Lot No. 1 of Midwood is the western boundary of the defendant's [sic] property and includes the western boundary of the Easement Area.

8. The Court cannot determine if Belvedere Avenue was actually constructed or paved in November of 1930, but based upon the other exhibits and testimony presented, Belvedere Avenue existed as a specifically dedicated right-of-way that had been staked in November of 1930 and it is still in the same location today.

The Court of Appeals ruled that these findings were conclusive on appeal, as being supported by competent evidence. Findings numbered three and four were undisputed. The trial court's finding that Belvedere Avenue was dedicated prior to the agreement was supported by the 1914 map of the neighboring subdivision. There was adequate evidence to support all the findings if not necessarily uncontroverted evidence. The Court extensively discussed these findings and the evidence that they found to be sufficient.

The trial court concluded that the distance in the description fell short of the street and that the call to "a stake in the Northerly edge of Belvedere Avenue as now laid out" is a call to a monument that controls over the stated distance. The defendants attempted to argue that a stake is not sufficiently permanent to serve as a monument. The opinion points out that trial court found the call was to "a stake ‘in the Northerly edge of Belvedere Avenue’". The trial court found the street to be in the same location today as in 1930. The Court of Appeals stated that "Belvedere Avenue, which has remained the same, may serve as a monument that governs over the distances described in the agreement. "'Where the calls are inconsistent, the general rule is that calls to natural objects control courses and distances. A call to a wall, or to another's line, if known or established, is a call to a monument within the meaning of this rule, as is a call to a highway.'" Highway Comm. v. Gamble, 9 N.C. App. 618, 623-24, 177 S.E.2d 434, 438 (1970) (citation omitted) (emphasis omitted)."

"We further noted in Gamble that our Supreme Court has held that a roadway is "of such permanent character as to become a monument of boundary." Id. at 624, 177 S.E.2d at 438 (citing Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603 (1950), Franklin v. Faulkner, 248 N.C. 656, 104 S.E.2d 841 (1958)). An artificial monument of boundary, such as a roadway, "in case of conflict, is considered the superior call in reference to course and distance, and controls the same when it is properly identified and placed and called for in the deed as a corner of the land." Nelson v. Lineker, 172 N.C. 330, 333, 90 S.E. 251, 252 (1916)."

‘We note that with respect to the location of an easement, "'[t]he law endeavors to give effect to the intention of the parties, whenever it can be done consistently with rational construction.'" Parrish v. Hayworth, 138 N.C. App. 637, 642, 532 S.E.2d 202, 206 (2000) (citation omitted), disc. review denied, 353 N.C. 379, 547 S.E.2d 15 (2001). We agree with the trial court that the agreement intended to provide the owners of the appurtenant lots with convenient ingress and egress for Belvedere Avenue. Having determined the trial court's findings are supported by competent evidence, and its findings support its conclusions of law, we affirm the entry of judgment for plaintiffs."

These statements in the opinion offer support for the view that clear language should not be overcome by technical discrepancies. While we only have the appellate panels’ version of the evidence in the case, it seems likely that there is little doubt as to what was intended by the 1930 agreement. Absent other circumstances such as estoppel, laches, adverse possession and the like, the agreement should be given effect. This is particularly true if to do otherwise would landlock the property benefited by the easement.

In a footnote to the first opinion that was originally released on December 4, 2001, the Court stated as follows:

"Neither party assigns error to the trial court's determination that defendants' Withdrawal of Dedication was effective as to the general public; however, we note that under Janicki, where an appurtenant landowner needing the easement for convenient ingress and egress objects to the withdrawal, as was the case here, N.C. Gen. Stat. § 136-96 "has no application and a street may not be withdrawn from dedication" absent the consent of the landowner. Janicki, 255 N.C. at 59, 120 S.E.2d at 418 (emphasis added)."

It seems that the clear implication of this comment is that the Court would have ruled that the attempt to remove the street from public dedication would have failed also had that issue been raised on appeal. Curiously, a literal reading of the statute would support this outcome. In effect, a city could preserve a previously unaccepted dedication by arguing that it was "'necessary to afford convenient ingress or egress' to or from the lot" if it abutted a lot owned by one who had not joined in the withdrawal. The city could argue that it was done "in the absence of consent by the lot owner to the withdrawal" even though the lot owner never objected and may even be in favor of the withdrawal. Such a construction would negate much of the benefit that the statute provides since it may easily be argued in most instances that any street is "'necessary to afford convenient ingress or egress' to or from" any lot. That this note was removed from the January opinion is welcome. It is usually unsettling for real property practitioners to have our appellate courts offer gratuitous opinions. They are seldom considered in the context of facts outside of the particular case and they tend to increase uncertainty in an area of law where the public generally benefits from greater certainty.