Gibbs v. Wright , 17 N.C. App. 495 ( 1973 )

195 S.E.2d 40 (1973) 17 N.C. App. 495

Robert A. GIBBS and wife, Mary Frances Gibbs
v.
Herman WRIGHT and wife, Myrtle Wright.

No. 7228SC486.

Court of Appeals of North Carolina.

March 14, 1973.

M. John DuBose, Asheville, for plaintiffs appellants.

Bruce A. Elmore, John C. Cheesborough and George W. Moore, Asheville, for defendants appellees.

PARKER, Judge.

Appellants assign error to the trial court's conclusion that the right granted in the deed from the Dovalls to Powers to get water from the spring was an easement appurtenant to the land conveyed. They contend that on the contrary the right in question was in gross and amounted to no more than a personal license limited to the original grantee. We do not agree.

"Whether an easement in a given case is appurtenant or in gross depends mainly on the nature of the right and the intention of the parties creating it. If the easement is in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant and not an easement in gross. Easements in gross are not favored by the courts, however, and an easement will never be presumed as personal when it may fairly be construed as appurtenant to some other estate. If doubt exists as to its real nature, an easement is presumed to be appurtenant, and not in gross." 25 Am. Jur.2d, Easements and Licenses, § 13, p. 427.

In the present case in our opinion the trial court correctly held that the right granted to get water by conveying the same from the spring constituted an easement appurtenant to the land conveyed to Powers. The fact that the words "heirs and assigns" were omitted after the words "party of the second part" in the sentence in which the right was granted does not control interpretation. G.S. § 39-1; Shingleton v. State, 260 N.C. 451, 133 S.E.2d 183. While the grant does not use the word "appurtenant," neither does it use the term "in gross." More significantly, it does not qualify the grantee's rights by the use of such terms as "personally" or "in person." Nothing indicates that the right to get water from the spring had any value apart from its exercise in connection with the use and occupancy of the one-acre tract conveyed. It is more reasonable to presume that the parties intended the right to be appurtenant to the land conveyed, for which purpose it had obvious value, than to presume they intended it to be personal to the grantee apart from her status as owner of the land conveyed, for which purpose it had no apparent value.

Appellants' assignments of error directed to findings of fact numbers 4 and 5 are also without merit. While, as appellants point out, these "findings of fact" were not included in the agreed statement of facts and while they are actually more in the nature of conclusions of law than strictly factual findings, correctly considered as conclusions of law, they are supported by the agreed statement of facts, and it is immaterial that they were incorrectly included under the heading of "findings of fact" in the judgment.

Appellants' assignment of error directed to the trial court's failure to include in its judgment as a finding of fact any finding with respect to the matters set forth in paragraph 4 of the agreed statement of facts is also without merit. Defendants' rights were derived from the written and recorded deeds in their chain of title, and their rights were neither enlarged nor diminished by the oral agreements entered into by predecessors in title to the present parties.

Finally, appellants contend that the right granted "to get water by conveying the same from a spring above the tract, with no controlling privileges," is so vague and indefinite as to make the attempted grant void for uncertainty. We find this contention also without merit. We note that the parties themselves have had no difficulty in locating the "spring above the tract"; in their agreed statement of facts they locate it as being on plaintiffs' property and as being the spring "which is near the Western margin of Powers Road and is about 150 feet South of the common line" between the parties.

The initial grant of the right "to get water by conveying the same from a spring above the tract" was general in its terms. "Where the grant or reservation of an easement is general in its terms, use of the easement includes those uses which are incidental or necessary to the reasonable and proper enjoyment of the easement, but is limited to those that burden the servient estate as little as possible." 25 Am.Jur.2d, Easements and Licenses, § 74, p. 480. In our opinion, the addition of the words, "with no controlling privileges," to a grant otherwise general in its terms merely manifested the intention of the parties that the grantee was not given the exclusive control and use of the waters from the spring, but that the rights granted were to be exercised in such manner as would not unreasonably interfere with the continuing right of the owners of the land upon which the spring was located also to obtain and use waters from the spring.

We hold that the trial court was correct in its judgment that defendants "be allowed to continue to obtain water from the spring" located on the property of plaintiffs, "and that they be allowed to obtain and use the water from said spring in any reasonable manner." While it may be implied, for the sake of clarity the judgment appealed from should be modified to make clear that defendants' rights are nonexclusive of plaintiffs' continuing rights also to make reasonable use of the spring. As so modified, the judgment appealed from is affirmed.

Remanded for judgment.

VAUGHN and GRAHAM, JJ., concur.