Shear v. Stevens Building Co. , 107 N.C. App. 154 ( 1992 )

418 S.E.2d 841 (1992)

Theodore H. SHEAR and Francine Durso, Tenants by Entirety; Kevin and Elizabeth Piacenza, Tenants by Entirety, Albert and Christine Benshoff, Tenants by Entirety; and Timothy and Karen Hughes, Tenants by Entirety, Plaintiffs,
v.
STEVENS BUILDING COMPANY, a N.C. Corporation, Stevens Building Company, a N.C. General Partnership, Helen S. Denning, Ina S. Carter, Geneva S. Massengill, Donald A. Stevens, Octavia S. Rivenbark, Norma S. Wilson, Katherine S. Ward, William E. Stevens, Jerry H. Stevens, and Helen G. Stevens, Defendants.

No. 9110SC666.

Court of Appeals of North Carolina.

August 4, 1992.

Poyner & Spruill by H. Glenn Dunn and Timothy P. Sullivan, Raleigh, for plaintiffs-appellees and cross-appellants.

Smith, Debnam, Hibbert & Pahl by John W. Narron and Vickie Winn Martin, Raleigh, for defendants-appellants and cross-appellees.

WELLS, Judge.

Through their various assignments of error, plaintiffs and defendants argue that the trial court erred in declaring that Cardinal Hills landowners have an appurtenant easement to the lake, that the parties equally share the cost of maintaining the lake and that defendants may develop a portion of the undeveloped property surrounding the lake. We hold that an appurtenant easement by implied dedication was created to the lake and surrounding undeveloped property for the benefit of Cardinal Hills landowners.

Plaintiffs and defendants first assign error to the trial court's findings of fact and conclusions of law regarding the creation of an appurtenant easement to the lake. Plaintiffs contend the trial court erred in finding that representations and actions by defendants' predecessors only created an easement to the lake. Plaintiffs also assign error to the trial court's conclusion of law stating that an easement was created only to the lake. They contend the evidence shows the creation of an easement to the lake as well as the surrounding undeveloped property. Defendants, however, contend the trial court's findings and conclusions that an easement was created to the lake are not supported by the evidence.

It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts. Chemical Realty Corp. v. Home Fed'l Savings & Loan, 84 N.C.App. 27, 351 S.E.2d 786 (1987). Findings of fact by the trial court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support those findings. Hunt v. Hunt, 85 N.C.App. 484, 355 S.E.2d 519 (1987). A trial court's conclusions of law, however, are reviewable de novo. Wright v. Auto Sales, Inc., 72 N.C.App. 449, 325 S.E.2d 493 (1985).

In the present case, the trial court made the following findings of fact relative to the creation of an easement to the lake:

4. In 1956, a Cardinal Hills subdivision plat map was recorded by the Stevens Corporation in the Wake County Registry in Book of Maps 1956 at page 75. A revised plat map was recorded in Book of Maps 1957 at page 47. Both maps depict at the same location within the subdivision a lake identified as "White Oak Lake" which is surrounded by an unsubdivided open area. The maps also depict another open area labeled "playground" adjacent to the Lake and surrounding undeveloped area. All deeds to lots in Cardinal Hills in evidence, including Plaintiffs' deeds, refer to the revised plat map recorded in the Wake County Registry Book of Maps 1957 at [p]age 47.

. . . . .

6. Newspaper advertisements in the summer of 1956 by Connell Realty and Mortgage Company, the exclusive sales agent for Cardinal Hills at the time, and by the Stevens Corporation at various times in 1960 and 1961, used the presence of White Oak Lake to induce the sale of new homes in Cardinal Hills.

7. At various times during this period, Allen T. Stevens, William C. Upchurch, an agent of the Stevens Corporation, and Pete Frazier, an agent of Connell Realty and Mortgage Company, made oral representations to purchasers of lots in Cardinal Hills, prior to closing, that White Oak Lake would remain for the use and enjoyment of residents of Cardinal Hills.

8. The developer, Stevens Corporation, and its agents engaged in an overall pattern of marketing which held out White Oak Lake as an amenity to be used and enjoyed by all Cardinal Hills landowners.

9. The aforesaid representations made by Allen Stevens and agents of the Stevens Corporation that White Oak Lake was to be for the use and enjoyment of landowners in Cardinal Hills helped induce the initial purchase of various lots in Cardinal Hills.

Our review of the record in this case reveals that there is competent evidence to support these findings of fact. We are therefore bound by these findings to the extent they are supported by the evidence presented at trial. However, finding of fact number 4 states that the plat map recorded and used by the Stevens Corporation clearly depicts the lake as well as the surrounding undeveloped and unsubdivided property. Further, this finding states that all deeds to lots sold in Cardinal Hills, including those held by plaintiffs, reference this plat map. We believe this finding alone is sufficient to establish an easement to the lake and the undeveloped property as depicted on the plat map.

An appurtenant easement is an easement created for the purpose of benefitting particular land. This easement attaches to, passes with and is an incident of ownership of the particular land. Gibbs v. Wright, 17 N.C.App. 495, 195 S.E.2d 40 (1973). It is well settled in this jurisdiction that an easement may be created by dedication. This dedication may be either a formal or informal transfer and may be either implied or express. Spaugh v. Charlotte, 239 N.C. 149, 79 S.E.2d 748 (1954).

In Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964) our Supreme Court set out the applicable rules for the establishment of an appurtenant easement by the use of a plat map:

Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks, and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use, and this right is not subject to revocation except by agreement. Steadman v. Pinetops, 251 N.C. 509, 112 S.E.2d 102; Conrad v. Land Company, 126 N.C. 776, 36 S.E. 282. It is said that such streets and parks are dedicated to the use of lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. Jackson v. Gastonia, 246 N.C. 404, 98 S.E.2d 444. It is a right in the nature of an easement appurtenant. Whether it be called an easement or a dedication, the right of the lot owners to the use of the streets, parks and playgrounds may not be extinguished, altered or diminished except by agreement or estoppel. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Todd v. White, 246 N.C. 59, 97 S.E.2d 439. This is true because the existence of the right was an inducement to and a part of the consideration for the purchase of the lots. Hughes v. Clark, 134 N.C. 457, 47 S.E. 462; Conrad v. Land Co., supra. Thus, a street, park or playground may not be reduced in size or put to any use which conflicts with the purpose for which it was dedicated. Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Conrad v. Land Co., supra.

See also, Hinson v. Smith, 89 N.C.App. 127, 365 S.E.2d 166, disc. review denied, 323 N.C. 365, 373 S.E.2d 545 (1988).

The record reveals that the Stevens Corporation recorded a plat map with the Wake County Register of Deeds Office in the mid-1950's. This map sets out all of the subdivided lots for sale in the Cardinal Hills development. The map also depicts streets, a playground, the lake and the undeveloped property surrounding the lake. The record further reveals that the deeds held by original purchasers of homes in Cardinal Hills reference this recorded plat map. Further, the deeds held by plaintiffs reference this map.

The contents of this map, and the Stevens Corporation's selling and conveying in reference to this map, alone creates an easement to the lake and the surrounding property. We note further, however, that oral representations and actions by defendants' predecessors concerning the lake and the surrounding undeveloped property necessarily include the undeveloped areas around the lake in the scope of the easement. These representations and actions, along with the use of the plat map and its depiction of the lake and property, decidedly show an intent to create an easement to the lake and surrounding undeveloped property.

Our Supreme Court has stated that an "implied dedication is also one arising by operation of law from the acts of the owner.... [T]here can be no dedication unless there is present the intent to appropriate the land to public use.... The intent which the law means, however, is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent." Spaugh, supra. The Court also stated in Nicholas v. Furniture Co., 248 N.C. 462, 103 S.E.2d 837 (1958) that "the owner's intention to dedicate some particularly described land ... may be manifested by his affirmative acts whereby the public use is invited and his subsequent acquiescence in such use, by his express assent to, or deliberate allowance of, the use, or merely by his acquiescence therein...."

In the present case, defendants' predecessors further manifested their intent to dedicate the lake and surrounding undeveloped property by oral representations made before, during and after the sale of homes in Cardinal Hills. Plaintiffs presented evidence through the testimony of original purchasers of homes in Cardinal Hills that Allen Stevens encouraged landowners to care for the undeveloped area around the lake "just like it was their land" but only "just as long as it [the undeveloped land] was kept open for the community." Allen Stevens also refused to sell additional land to purchasers who wished to extend their property line to the lake. Stevens maintained that additional purchases would be neither possible nor necessary stating "Well, we'd love to let you have more land, but we can't because that land goes to the community, to the development."

Further, Bill Stevens, one of Allen Stevens' sons, represented that it was his father's intent that the lake and the surrounding undeveloped property remain in its natural state. Plaintiffs' witness, Brown Whitehouse, testified that Bill Stevens told him "My daddy [Allen Stevens] said that that lake is for the use and benefit of the people that live in Cardinal Hills and that land will not be sold...." Plaintiffs also presented evidence that the lake and surrounding undeveloped land were often used by residents of Cardinal Hills for recreational purposes and that the use of the lake and land was never discouraged by the Stevens Corporation. In fact, the evidence shows that the use of the lake and land were often encouraged by Allen Stevens.

Finally, plaintiffs presented evidence that the Stevens Corporation and its exclusive real estate agent, Connell Realty, ran newspaper ads which stated that Cardinal Hills featured homesites on "one of Wake County's most beautiful lakes." The newspaper ads also indicated several homes had a "view of the lake" and that others were "lakefront" homes. This is additional evidence that Allen Stevens and the Stevens Corporation used the lake as an attraction to homebuyers.

Further, this practice along with the oral representations about the lake and undeveloped land, the encouragement of and acquiescence in the use of the lake and land, and, lastly, the depiction of the lake and undeveloped land on the plat map manifests the Stevens Corporation's intent to dedicate these areas to the Cardinal Hills landowners. In light of its findings of fact, the trial court erred in its conclusion that the representations and actions by defendants' predecessor created only an easement to the lake.

Plaintiffs assign error to the trial court's declaration that defendants maintain the water level of the lake as represented on defendants' 1988 plat map and that defendants may develop a portion of the land surrounding the lake. They contend these allowances by the trial court infringe on the easement created in the lake and undeveloped land. We agree.

The easement for the benefit of the Cardinal Hills land owners was created simultaneously with the Cardinal Hills development in the late 1950's. The easement was created by (1) selling and conveying lots with reference to the plat map, (2) making oral representations about the availability and permanency of the lake and the undeveloped land surrounding the lake and (3) using the landowners' opportunity to use these areas as an inducement to sell lots. Therefore, it is only logical to conclude that the easement was both to the lake and to the undeveloped land as it existed in the late 1950's.

A portion of the undeveloped land, which defendants now seek to develop, was created by the draining of the lake in 1988. Allowing defendants to maintain the lake at its lower 1988 level, a level which defendants created by draining the lake, and allowing a portion of the surrounding land to be developed, would be an encroachment on the scope of the easement which was created at the time of the original development. Therefore, defendants are obligated to restore the lake to its original level and to leave the surrounding land shown on the 1957 plat map as undeveloped in its original condition.

Plaintiffs and defendants also assign error to the portion of the trial court's order which declares that the cost of maintaining the lake should be equally divided between the parties. Both parties contend that this declaration is neither supported by findings of fact nor conclusions of law. We agree. It is well established in this jurisdiction that ordinarily the owner of an easement or the person for whose benefit the easement exists is the party to be charged with its maintenance. See Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982); and Richardson v. Jennings, 184 N.C. 559, 114 S.E. 821 (1922). No agreement or intent to the contrary appearing in this case, plaintiffs and the Cardinal Hills landowners, as holders of the appurtenant easement to the lake and surrounding undeveloped land, have the sole responsibility of bearing the cost of maintaining their easement. Therefore, the cost of maintaining the lake and the surrounding undeveloped land should be paid by the Cardinal Hills landowners.

For the reasons stated, the judgment of the trial court is vacated and this case is remanded to the trial court for entry of an appropriate judgment not inconsistent with this opinion.

Vacated and remanded.

ARNOLD and EAGLES, JJ., concur.