Allen v. Duvall , 63 N.C. App. 342 ( 1983 )

304 S.E.2d 789 (1983)

W.R. ALLEN and wife, Annette Allen
v.
Roy Lee DUVALL, Melba Jean Duvall, and Charlie Byrd Duvall.

No. 8230SC786.

Court of Appeals of North Carolina.

July 19, 1983.

Erwin, Winner & Smathers by Patrick U. Smathers, Asheville, for plaintiffs-appellees.

Redmond, Stevens, Loftin and Currie by Thomas R. West, Asheville, for defendants-appellants.

WEBB, Judge.

This appeal brings to the Court an action for slander of title. Slander of title actions are rare in this state. Our research has revealed only three cases in which it is mentioned. See Texas Co. v. Holton, 223 N.C. 497, 27 S.E.2d 293 (1943); Cardon v. McConnell, 120 N.C. 461, 27 S.E. 109 (1897) and McElwee v. Blackwell, 94 N.C. 261 (1886). Slander of title is recognized as a part of the common law. See 50 Am.Jur.2d, Libel and Slander, § 541 at page 1060 and 53 C.J.S., Libel and Slander, § 269 at page 391. We believe it is a part of the law of this state. The elements of slander of title are (1) the uttering of slanderous words in regard to the title of someone's property, (2) the falsity of the words, (3) malice and (4) special damages.

In this case the defendants argue the Superior Court was in error because the plaintiffs did not prove the words of Roy Lee Duvall were false, that he uttered them with malice, or that the plaintiffs suffered any damage. The falsity of Mr. Duvall's words depends on the validity of the title to the plaintiffs' easements across the property of the defendants. The defendants argue that the description in the deed of their predecessor in title is too vague to create an easement. We believe that pursuant to Oliver v. Ernul, 277 N.C. 591, 178 S.E.2d 393 (1971), we must hold that the deed to the defendants' predecessor in title did not reserve an easement. In that case the grantor purported to give an easement described as follows:

"We, the undersigned, do hereby give, grant, bargain and convey a 20-foot rightaway for public use for now and forevermore—

Described as follows:

In Morehead Township, in the Mansfield Section, lying between A and E.C. Railway on the North Hwy 70 on the South. The Mike Ebron Subdivision Running a Souherly direction Bounded on the East by George Huntley line and on the West, by Fred Ernul, Garfield Oliver and M.L. Mansfield line."

Our Supreme Court held this was not a sufficient description because the description contained "no beginning and no ending." As we read Oliver there can be little left to inference for a description of an easement to be good. As Justice Sharp (later Chief Justice) pointed out in her concurrence, it could have been inferred from the description in Oliver that the beginning was Highway 70 on the south and A and E.C. Railroad on the north, but the majority would not make this inference.

Were it not for Oliver, we believe the description in this case might be held to create an easement pursuant to Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541 (1953). We believe that case holds that if an easement is reserved and a specific part of the servient, property is used for the easement with the acquiescence of the parties, this makes the description good. That is what the evidence shows in this case. The difficulty with following Borders, however, is that the evidence also showed this in Oliver. The Supreme Court in Oliver cited Borders but did not discuss it. Apparently they gave no credence to the principle that an otherwise vague description can be made good by the use and acquiescence of the parties. We believe Borders was overruled by Oliver. We believe pursuant toOliver that the description in the 1914 deed in the present case is too vague to allow identification with reasonable certainty.

We believe there may have been sufficient evidence for the court to find that the easements had been established by prescription. See Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981) and Dulin v. Faires, 266 N.C. 257, 145 S.E.2d 873 (1966) for the proof necessary to support an easement by prescription. The court did not make any findings of fact as to prescription, however. We also believe the evidence may support findings of fact that easements by way of necessity had been established. See Oliver, supra, and Dorman v. Ranch, Inc., 6 N.C.App. 497, 170 S.E.2d 509 (1969) for the proof necessary to establish an easement by way of necessity. The court did not make any findings of fact as to an easement by way of necessity. We hold that there must be a new trial since the court did not make sufficient findings of fact on the evidence as to an easement by prescription or by necessity.

In light of the fact that there must be a new trial, we shall discuss some of the defendants' assignments of error, as the questions they raise may recur. The defendants argue it was error not to find the plaintiffs had abandoned the easement. An abandonment requires an intention to relinquish a right in property and the external acts necessary to effectuate that intent. See Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173 (1942). There was evidence that the plaintiffs had not maintained the roads for several years prior to the commencement of the action. We do not believe this evidence required the court to find the plaintiffs had abandoned the easement. So long as there was no one living on the plaintiffs' land, there was no need for the plaintiffs to maintain the road. It was still a valuable adjunct to the plaintiffs' property, however, and the fact that they did not maintain the roads need not be construed as evidence they intended to abandon the right to use them.

The defendants also contend there was not sufficient evidence of malice to establish a claim for slander of title. In order to succeed in an action for slander of title, the plaintiffs must prove that the defendant uttered the false words maliciously, that is, there was no probable cause for the defendant's belief. If the defendant's assertion was made in good faith, no action will lie. See Cardon v. McConnell, supra. In this case the evidence showed that the deed to the defendants referred to an easement across their property. There was evidence that a right of way had been used across the property for many years which was known to the defendant Roy Lee Duvall. This is evidence from which the court could find there was not probable cause for Roy Lee Duvall to believe the right of way did not exist. The fact, as we have held, that the reservation in the deed did not create an easement is evidence that Mr. Duvall acted in good faith as is other evidence introduced by Mr. Duvall. This element of the case may be determined at the next trial.

The defendants also argue that it was error for the court to find as a fact that the plaintiffs had made a contract to sell the property to Mr. Mehaffey. They contend that the best evidence rule was violated in that the original written contract was not offered into evidence. We do not believe the best evidence rule applies. There was no evidence that there was a written contract between the plaintiffs and Mr. Mehaffey. See State v. Miday, 263 N.C. 747, 140 S.E.2d 325 (1965). The fact that Mr. Mehaffey might be able to plead the statute of frauds if the plaintiffs had sued him does not affect the plaintiffs' claim against the defendants. See Childress v. Abeles, 240 N.C. 667, 84 S.E.2d 176 (1954).

The defendants assign error to the amount of damages. We believe that the evidence which showed Mr. Mehaffey had agreed to pay $25,000 for the property but would pay only $12,000 pending the plaintiffs' assuring him of a good title to the property is evidence from which the court could conclude the plaintiffs lost the use of $13,000. There was testimony that the interest rate on certificates of deposit was 13% at the time Mr. Mehaffey refused to pay the full purchase price. The court calculated the damages for the loss of the use of the money at 13% of $13,000 annualized from the date Mr. Mehaffey refused to pay. In this we find no error.

The court also awarded damages for the expenses the plaintiffs incurred in having the easement surveyed. The plaintiffs' evidence showed this was necessary to prepare for the action for slander of title. We do not believe the expenses of preparing for an action in court is such a natural and probable result of the action of Roy Lee Duvall that it was properly considered as a part of the damages.

The plaintiffs have cross-assigned error to the court's failure to include their attorney fees as part of the damages. We believe the court was correct in refusing to do so. The plaintiffs argue that as a direct result of the slander of their title, they had to retain attorneys. If this were a proper element of damages, it should be included in every case in which a person retains an attorney as a result of some damage done to him. We believe the court was correct in not including legal fees as a part of the damages.

For the reasons stated in this opinion, we hold there must be a new trial.

New trial.

ARNOLD and BRASWELL, JJ., concur.