Johnson v. Skyline Telephone Membership Corp. , 89 N.C. App. 132 ( 1988 )

365 S.E.2d 164 (1988)

Myrtle K. JOHNSON
v.
SKYLINE TELEPHONE MEMBERSHIP CORPORATION; W.B. Tribble; Wilma Blevins; H.B. Quesenberry and wife, Mrs. H.B. Quesenberry; Harry W. Tribble; Charles Delano Osborne and wife, Brenda Osborne; Lester Parker, Jr. and wife, Mildred K. Parker; David M. Baird and wife, Juanita M. Baird; Lois P. Dent; David J. Little and wife, Jeanette T. Little; George A. Reeves and wife, Gertrude A. Reeves; T.G. Reeves; Zella Lorraine Miller; Norman Brown and wife, Zola F. Brown; James Miller and wife, Dorothy L. Miller; Fred Rash; Lavern E. Waton; Richard K. Ashley and wife, Phyllis R. Ashley; and R.W. Blevins and wife, Opal Blevins.

No. 8723DC876.

Court of Appeals of North Carolina.

March 1, 1988.

McElwee, McElwee, Cannon & Warden by William H. McElwee, III, North Wilkesboro, for plaintiff-appellee.

John T. Kilby, West Jefferson, for defendants-appellants.

EAGLES, Judge.

The sole issue here on appeal is whether the heirs of A.B. McNeill had the power to grant an express easement over the subdivision's streets to plaintiff. Defendants argue that, by subdividing the property, recording the subdivision plat, and selling all of the lots in the subdivision, A.B. McNeill relinquished all of his interest in the streets, dedicating them to the purchasers. Further, defendants contend that, since A.B. McNeill retained no interest in the streets, his heirs had no interest to convey to plaintiff. We disagree.

It is well established that an owner who subdivides his property and records a plat showing the existence of streets and roads within the subdivision impliedly grants to purchasers of lots in the subdivision the right to use these streets and roads. Whichard v. Oliver, 56 N.C.App. 219, 287 S.E.2d 461 (1982). Our case law often refers to a lot purchaser's right to use the streets as having been "dedicated" to him by the owner. See Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13 (1940); Bryan v. Sanford, 244 N.C. 30, 92 S.E.2d 420 (1956). Since a "dedication" is made to the public, not just a part of the public, the right is more properly called an easement. Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964); see also Finance Corp. v. Langston, 24 N.C.App. 706, 212 S.E.2d 176, cert. denied, 287 N.C. 258, 214 S.E.2d 429 (1975); 3 Powell on Real Property, section 409 (1987). Regardless of how it is denominated, the right of lot purchasers to use these streets may not be extinguished, altered, or diminished except by agreement or estoppel. Realty Co. v. Hobbs, supra.

It does not follow from defendants' right, as purchasers of the lots in the subdivision, to use the streets shown on the recorded plat, that their easement is exclusive or that A.B. McNeill was divested of all interest in the streets. The grantor of an easement retains fee title to the soil, subject to the burdens which the easement imposes. Hine v. Blumenthal, 239 N.C. 537, 80 S.E.2d 458 (1954). Consequently, the fee holder may use the land or convey additional easements over it so long as the use or conveyance does not interfere with the original easement. See Light Co. v. Bowman, 229 N.C. 682, 51 S.E.2d 191 (1949). See also 25 Am.Jur.2d, "Easements and License," section 89 (1966); 26 C.J.S., "Dedication," section 53 (1956). The record here does not establish that defendants own fee title to the streets in the subdivision or that their right to use them is exclusive. Accordingly, the conveyance of an additional easement to plaintiff is valid; plaintiff has an express easement over the subdivision's streets.

Defendants argue that their right to use the streets will be diminished due to greatly increased traffic and the possibility that plaintiff or her heirs will use them in a manner which is repugnant to their rights. By virtue of defendants' easement, plaintiff acquired the use of the streets only to the extent that the use does not diminish defendants' rights. No facts were presented to the trial court showing the nature of plaintiff's use. The trial court properly concluded that the mere use of the streets by plaintiff as a means of ingress and egress to her 11.8 acre tract of land did not diminish or interfere with defendants' rights. The question of what use or uses may diminish those rights is not before us.

Affirmed.

WELLS and GREENE, JJ., concur.