Builders Supplies Company of Goldsboro, NC v. Gainey ( 1972 )

189 S.E.2d 657 (1972) 14 N.C. App. 678

BUILDERS SUPPLIES COMPANY OF GOLDSBORO, NORTH CAROLINA, Inc.
v.
Norwood A. GAINEY.

No. 728SC150.

Court of Appeals of North Carolina.

June 28, 1972. Certiorari Granted August 1, 1972.

Smith & Everett, by James N. Smith, Goldsboro, for plaintiff appellant.

Taylor, Allen, Warren & Kerr, by John H. Kerr, III, Goldsboro, for defendant appellee.

Certiorari Granted by Supreme Court August 1, 1972.

MORRIS, Judge.

When this case was first presented for review on appeal, we simply labeled the interest involved as an "easement" for purposes of that decision. However, determination of this appeal requires, we think, a re-examination of the interest reserved in the 1952 deed. While commercial gravel belongs to the mineral kingdom in that it is inorganic and formed by nature alone, it is not regarded as a mineral under the mining laws of North Carolina. Lillington Stone Co. v. Maxwell, 203 N.C. 151, 165 S.E. 351 (1932). (But see G.S. § 74-49(6), effective 11 June 1971.) Generally sand and gravel are considered part of the soil and not minerals which possess exceptional qualities or value. 54 Am.Jur.2d, Mines and Minerals, § 8, p. 193. Thus when discussing the interest in sand and gravel reserved herein, we cannot—as appellant contends we must—apply as authority the case law dealing with mineral rights, which recognizes severance of the legal estate in the minerals from that of the legal estate in the surface, and establishes that one cannot abandon such rights by mere nonuse. Hoilman v. Johnson, 164 N.C. 268, 80 S.E. 249 (1913); see 5 Strong, N.C. Index 2d, Mines and Minerals, § 1, p. 519.

"A right that is closely akin to the easement is the profit a prendre, which is a right created in its owner to take a part of the soil or the products of the soil from the land of another person." Webster, Real Estate Law in North Carolina, § 309, p. 372. Black's Law Dictionary, 4th Ed., defines profits a prendre as:

". . . A right exercised by one man in the soil of another, accompanied with participation in the profits of the soil thereof. A right to take part of the soil or produce of the land. . . . The term includes the right to take soil, gravel, minerals, and the like from another's land . . . Profits a prendre differ from easements, in that the former are rights of profit, and the latter are mere rights of convenience without profit.. . ." (Citations omitted.)

See also 28 C.J.S. Easements § 3f, p. 631; 25 Am.Jur.2d, Easements and Licenses, § 4, p. 419; 54 Am.Jur.2d, Mines and Minerals, § 120, p. 303; 1 Thompson on Real Property, §§ 135-140, pp. 508-529 (1964). "Profits a prendre are closely analogous to easements in most respects and the principles applicable to one are generally applicable for the other." Webster, supra, at p. 374. For example, under the provision of the Restatement of the Law of Property, § 399, p. 2343, the term "easement" includes "profits"; and as is the case with easements, profits a prendre may be held "appurtenant" to other land or may exist "in gross" meaning they may be held independently of any ownership in other land and that it does not pass with the transfer of any land. If a profit a prendre is "in gross", it may be used for the benefit of the individual owner and does not have to be used solely for the benefit of the dominant estate as would be the case were it "appurtenant". 1 Thompson on Real Property, § 136, pp. 516-517.

The leading authority in North Carolina dealing with profits a prendre is Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L.R. 1527 (1922), wherein the owner conveyed land but reserved for himself, his heirs and assigns the right to hunt on the uncleared and uncultivated portions and to protect the game thereon against trespass of persons except the grantee, his executors, administrators, and assigns. There our Supreme Court said:

"Profit a prendre is created by grant; it cannot be created by parol. If enjoyed by reason of holding certain other estate, it is regarded in the light of easement appurtenant to an estate; whereas, if it belongs to an individual (as in this case), distinct from any ownership of other lands, it takes the character of an estate in the land itself, rather than that of an easement therein." 183 N.C. at p. 275, 111 S.E. at p. 367.

We conclude that in the case at bar the personal right to go on the land to remove sand and gravel was not exclusively for the enjoyment of a dominant estate; was distinct from any ownership of other lands; and was, therefore, a profit a prendre in gross.

The present reservation was merely the right to go on the land and remove sand and gravel as opposed to the right to sell sand and gravel in place, the critical distinction being that the substances must be severed from the ground before title to the substance passes. See 1 Thompson on Real Property, § 136, p. 519. The reservation here does not convey an interest in or right to the sand and gravel in place which under mining law would create a severable and independent legal estate in the land. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182 (1938). Instead, the profit a prendre merely reserves the privilege of entering ["right of ingress, egress and regress over any part of said land"] to remove the sand and gravel, and no right exists in the material until it is severed.

Appellant assigns as error the submission to the jury of appellee's equitable affirmative defense of laches. We think the issue was properly submitted. The facts in the case sub judice are similar to the facts in Mathews Slate Co. v. Advance Industrial Supply Co., 185 A.D. 74, 172 N.Y.S. 830 (1918). There a profit a prendre was reserved by the grantor in the accumulating waste slate of a quarry which was conveyed to the grantee. No one removed the waste slate for 33 years and there was little use for it until a new process of roof-surfacing was discovered. The Court held the evidence of nonuse accompanied by other circumstances showing an intention to abandon was sufficient to prevent the grantor from exercising the rights reserved in the conveyance. See also Council v. Sanderlin, supra; "Servitudes-Appurtenant or In Gross" 29 Yale Law Journal 218 (1919); compare Gerhard v. Stephens, 68 Cal. 2d 864, 69 Cal. Rptr. 612, 442 P.2d 692 (1968).

Here appellee raised the defense of laches in his pleadings, and there is sufficient evidence to support such a charge in defense of appellant's claim for injunctive relief and damages. 7 Strong, N.C. Index 2d, Trial, § 40, pp. 351-352. Nor do we find error in the court's charge concerning this issue.

". . . The doctrine of laches may be defined generally as a rule of equity by which equitable relief is denied to one who has been guilty of unconscionable delay, as shown by surrounding facts and circumstances, in seeking that relief. `Laches' has been defined as such neglect or omission to assert a right, taken in conjunction with lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a bar in equity.

. . . The idea of laches is embodied also in the words `acquiescence,' `election,' `estoppel,' `abandonment,' and `ratification.'" 27 Am.Jur.2d, Equity, § 152, pp. 687-688; see also 3 Strong, N.C. Index 2d, Equity, § 2, p. 551; Howell v. Alexander, 3 N.C.App. 371, 165 S.E.2d 256 (1969).

We do not find any merit in the appellant's contention that appellee has not been prejudiced when the evidence clearly tends to show that appellee made numerous improvements to the 35-acre tract in the mistaken belief that appellant and its predecessors had abandoned all claim to the profit a prendre; that appellee paid taxes on all 331 acres while appellant has never listed the 35-acre parcel for tax purposes; and that appellee has dug from five to eight feet of topsoil from five acres of the 35-acre tract in order to make removal of the sand possible.

The lapse of approximately 15 years between the time of the execution of the reservation by deed and the time appellant tried to exercise that privilege was sufficient, when coupled with the other facts of this case, to prevent appellant from removing any sand and gravel from appellee's land.

Although we do not discuss the remaining assignments of error, we have considered them and find them to be without merit.

Affirmed.

VAUGHN and GRAHAM, JJ., concur.