Dees v. COLONIAL PIPELINE COMPANY ( 1966 )

146 S.E.2d 50 (1966) 266 N.C. 323

Ralph DEES, Jr.
v.
COLONIAL PIPELINE COMPANY.

No. 688.

Supreme Court of North Carolina.

January 14, 1966.

Hoyle, Boone, Dees & Johnson, Greensboro, for plaintiff appellant.

Wharton, Ivey & Wharton, Greensboro, Ervin, Horack, Snepp & McCartha, Charlotte, for defendant appellee.

DENNY, Chief Justice.

Plaintiff assigns as error finding of fact No. 3, to the effect that the instrument involved, in pertinent part, grants to the defendant an easement of right of way for pipeline purposes as more fully set out therein, on, over, and through said land, upon an initial consideration of $10.00, and further provides that upon the making of an additional payment of $316.00 within four months from date thereof said easement shall become indefeasible, the easement otherwise to cease and terminate at the end of such four months' period.

The appellant argues and contends the agreement, called a "Right of Way Easement Option," at most contemplates the conveyance of an easement in futuro and not in praesenti upon compliance with its terms. We do not concur in plaintiff's contentions.

In 17A Am.Jur., Easements, § 27, page 637, it is said:

"An easement may be created by agreement or covenant. An easement or a right in the nature of an easement may be created by words of covenant as well as by words of grant. A covenant or agreement may operate as a grant of an easement if it is necessary to give it that effect in order to carry out the manifest intention of the parties. If the owner of land enters into a covenant concerning the land or its use and thereby subjects it, or his remaining property, to an easement, the covenant is construed the same as an express grant and by the same rules in accomplishing the intention of the parties," citing, among numerous other cases, Waldrop v. Town of Brevard, 233 N.C. 26, 62 S.E.2d 512.

The agreement involved herein, upon the initial payment of $10.00, granted a defeasible easement which was to become indefeasible upon the making of an additional payment of $316.00 on or before the expiration of four months from the execution thereof. The agreement simply created an option on the part of the defendant to determine whether or not it would pay the additional consideration in order to get an indefeasible easement. It is conceded that the additional consideration was paid within the time required by the agreement and that the agreement was executed under seal, duly acknowledged, and registered in the office of the Register of Deeds of Guilford County, North Carolina, on 21 January 1963, several months prior to the time the plaintiff acquired title to the property.

"No particular words are necessary to constitute a grant, and any words which clearly show the intention to give an easement, which is by law grantable, are sufficient to effect that purpose, provided the language is certain and definite in its terms." 28 C.J.S. Easements § 24, page 677; Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541.

The agreement involved herein is not an ordinary option involving the purchase and sale of real estate, requiring the execution of a deed in the event the option is exercised. The instrument involved herein granted a determinable easement upon the initial payment of $10.00, and became an absolute and indefeasible grant upon the payment of the additional consideration required within the time specified therein.

Determinable easements are well recognized, as in Wallace v. Bellany, 199 N.C. 759, 155 S.E. 856, where an easement was granted, to terminate upon the construction of certain streets which would provide for ingress and egress to and from the property conveyed in lieu of the way granted in the easement. Likewise, in McDowell v. Blue Ridge & A. R. Co., 144 N.C. 721, 57 S.E. 520, an easement for the construction of a railroad was granted on condition the road was constructed in five years; this was held to be a valid easement, subject to terminate if the condition was not met. Also, in Hall v. Turner, 110 N.C. 292, 14 S.E. 791, the easement was to continue so long as grantee maintained a mill at a certain location.

In our opinion, the findings of fact by the court below are supported by competent evidence and the facts are sufficient to support the conclusions of law and the judgment entered below.

A careful review of all the appellant's assignments of error leads us to the conclusion they are without merit and are, therefore, overruled. The judgment entered below is

Affirmed.