Adams v. Severt , 40 N.C. App. 247 ( 1979 )

252 S.E.2d 276 (1979) 40 N.C. App. 247

Labon Franklin ADAMS and wife, Mary Ann Adams
v.
Odell SEVERT and wife, Annie Mae Severt, Howard Wyatt, Jr. and wife, Mae Wyatt.

No. 7823DC137.

Court of Appeals of North Carolina.

March 6, 1979.

Franklin Smith, Elkin, for plaintiffs-appellants.

George G. Cunningham, Wilkesboro, for defendants-appellees Howard Wyatt, Jr. and wife, Mae Wyatt.

ERWIN, Judge.

The only question presented for our determination on this record is: "Whether the trial court committed error in granting the defendants Wyatt's motion for summary judgment upon the evidence presented by the defendants Wyatt?"

R. G. Adams and wife conveyed two adjoining parcels of land, one to John Adams and wife and the other to Odell Severt and wife. These two parcels apparently blocked off the remaining lands of R. G. Adams from a local road, and each of these deeds reserved a right-of-way across the land conveyed which was stated on the deeds as follows: "[A] right of way in perpetuity for a roadway to connect with the County road across the above lands, for the use and benefit of the remaining lands of the grantors." The trial court concluded "that the Plaintiff's [sic] own pleadings and affidavits failed to show that an easement by prescription could have been acquired."

A roadway is an easement constituting an interest in land, and in order to create such easement by deed or reservation contained in a deed, the description thereof must be sufficiently certain to permit the identification and location of the easement with reasonable certainty. Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484 (1942), and Gruber v. Eubank, 197 N.C. 280, 148 S.E. 246 (1929).

We hold that the language used in the deeds in question is too ambiguous and uncertain to create a roadway across the property in question. The identity of such interest in the land would of necessity rest in conjecture and speculation, which the law does not allow.

Plaintiffs rely on Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973), and Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541 (1953), for upholding the description in their deeds. These cases are distinguishable. In Hensley, Id. 283 N.C. at 719, 199 S.E.2d at 4, the deed explicitly stated, "including a right-of-way to a road across said Duncan's lot along said Lankford's Line." Thus, an extrinsic object was specifically referred to in the deed.

In Borders v. Yarbrough, supra, a common sewerage line ran to the disposal in the street, and this condition existed before the parties acquired their respective lots. Our Supreme Court held that under these circumstances, the way was sufficiently located. Here the location of the easement is not so certain. The deed gives no beginning point and furnishes no means by which the location of the proposed way may be ascertained. See Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484 (1942). The ambiguity is a patent one. Hence, the attempted conveyance or reservation is void for uncertainty. Thompson v. Umberger, supra.

Plaintiffs also allege that the trial court erred in allowing summary judgment as to their claim of title by prescription. We do not agree. A party asserting an easement by prescription has the burden of proving all the elements essential to its acquisition including that his use of the easement was continuous and uninterrupted for twenty years. Nicholas v. Furniture Co., 248 N.C. 462, 103 S.E.2d 837 (1958), and Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153 (1937). Plaintiffs' evidence, viewed in the light most favorable to them, shows possession for only eighteen years.

Finally, plaintiffs raise a question of adverse possession under color of title. See G.S. 1-38. This claim is also without merit. Color of title is that which gives the semblance or appearance of title, but is not title in fact—that which on its face, professes to pass title, but fails to do so because of a want of title in the person from whom it comes or the employment of an ineffective means of conveyance. Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973). Plaintiffs' attempted reservation of an easement did not constitute "color of title." Plaintiffs' reservation of an easement by deed was ineffective, because the description was insufficient to identify and locate it. Thompson v. Umberger, supra. In Katz v. Daughtrey, 198 N.C. 393, 394, 151 S.E. 879, 880 (1930), Chief Justice Stacy stated:

"If the land intended to be conveyed cannot be identified from the description contained in the deed, it follows as a necessary corollary that as the deed is, for this reason, inoperative, it is equally inoperative as color of title. If the land cannot be identified for one purpose, how can it be for another? Campbell v. Miller, 165 N.C., 51, 80 S.E., 974; Barker v. R. R., 125 N.C., 596, 34 S.E., 701; Dickens v. Barnes, 79 N.C., 490; Hinchey v. Nichols, 72 N.C., 66; Capps v. Holt, 58 N.C., 153.

A deed which conveys no title, because the land intended to be conveyed thereby is incapable of identification from the description contained therein, would necessarily be inoperative as color of title. Fincannon v. Sudderth, 144 N.C., 587, 57 S.E., 337."

We conclude from the record before us that there is no genuine issue as to any material fact and that defendants are entitled to a judgment as a matter of law. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

The summary judgment was properly allowed for defendants.

Affirmed.

PARKER and ROBERT M. MARTIN, JJ., concur.