Oliver v. Ernul , 277 N.C. 591 ( 1971 )

HUSKINS, Justice.

Does Plaintiffs’ Exhibit 1, the “rightaway deed,” expressly grant to plaintiffs a twenty-foot right-of-way over the lands of defendant Fred Ernul? If not, are plaintiffs entitled to a way of necessity over said lands ? Answers to these questions are determinative of this controversy.

Even if its execution by Fred Ernul is duly proven, the paperwriting designated Plaintiffs’ Exhibit 1 is insufficient to expressly grant an easement. While no particular words are necessary for the grant of an easement, the instrument must identify with reasonable certainty the easement created and the dominant and servient tenements. Borders v. Yarbrough, 237 N.C. 540, 75 S.E. 2d 541 (1953); Thompson v. Umberger, 221, N.C. 178, 19 S.E. 2d 484 (1942); 2 Thompson on Real Property (Grimes Ed. 1961) § 332. Although one might conclude that the intended beneficiaries of the abortive easement are the owners of the Oliver and Mansfield tracts, the location of the “20-foot rightaway” on the ground is vague, indefinite and uncertain. The language of the instrument vaguely describes the intended easement in such manner that nothing can be located on the ground. The description contains no beginning and no ending. When an easement is created by deed, either by express grant or by reservation, “the description thereof must not be so uncertain, vague and indefinite as to prevent identification with reasonable certainty. ... If the description is so vague and indefinite that effect cannot be given the instrument without writing new, material language into it, then it is .void and ineffectual either as a grant or as a reservation. . . . The description must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. ... If the ambiguity in the description in a deed is patent the attempted conveyance or reservation, as the case may be, is void for uncertainty. And a patent ambiguity is such an uncertainty appearing on the face of the instrument that the court, reading the language in the light of all the facts and circumstances referred to in the instrument, is unable to derive therefrom the intention of the parties as to what land was to be conveyed. This type of ambiguity cannot be removed by parol evidence since that would necessitate inserting new language into the instrument which under the parol evidence rule is not permitted.” Thompson v. Umberger, supra (221 N.C. 178, 19 S.E. 2d 484).

Nor was there a dedication to the perpetual use of the public. Even had the paperwriting been sufficient, there was never an acceptance by duly constituted governmental authority. A dedication without acceptance is merely a revocable offer and “is not complete until accepted, and neither burdens nor benefits with attendant duties may be imposed on the public unless in some proper way it has consented to assume them.” Owens v. Elliot, 258 N.C. 314, 128 S.E. 2d 583 (1962). An acceptance must be made by some competent public authority, and cannot be established by permissive use. Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104 (1931); Chesson v. Jordan, 224 N.C. 289, 29 S.E. 2d 906 (1944); 2 Thompson on Real Property, supra, § 372. The record here is devoid of any such acceptance.

The Court of Appeals, relying obliquely upon Hine v. Blumenthal, 239 N.C. 537, 80 S.E. 2d 458 (1954), held that, under the circumstances of this case, Plaintiffs’ Exhibit 1 created an easement by grant. Hine holds only that where lots are sold with reference to a plat or map, and the grantees rely upon the descriptions therein with respect to designated streets and parks, such grantees acquire from the owner the irrevocable right to use the streets and parks so designated, and no governmental acceptance is necessary. The basis of this right is estoppel in pais, viz.: it would be fraudulent to allow the owner to resume private control over such streets and parks. See Rives v. Dudley, 56 N.C. 126 (1856); Conrad v. Land Co., 126 N.C. 776 (1900); Collins v. Land Co., 128 N.C. 563 (1901); Lee v. Walker, 234 N.C. 687, 68 S.E. 2d 664 (1951); Hine v. Blumenthal, supra. “The reason for the rule is that the grantor, by making such a conveyance of his property, induces the purchasers to believe that the streets and alleys, squares, courts, and parks will be kept open for their use and benefit, and having acted upon the faith of his implied representations, based upon his conduct in platting the land and selling accordingly, he is equitably estopped, as well in reference to the public as to his grantees, from denying the existence of the easement thus created.” Green v. Miller, 161 N.C. 24, 76 S.E. 505 (1912). See also 23 Am. Jur. 2d, Dedication § 56; Cincinnati v. White, 31 U.S. (6 Pet.) 431, 8 L. Ed. 452 (1832).

The record here discloses no map or plat, nor any sale with reference to any preconceived plan or arrangement. No development plan is1 referred to in Plaintiffs’ Exhibit 1. The simple fact is that Fred Ernul, the owner of a tract of land, sold two land-locked lots from it and the three owners later allegedly executed Plaintiffs’ Exhibit 1. This is insufficient to create an easement by dedication, by grant, or by estoppel.

Under the circumstances revealed by the record, our cases establish that plaintiffs have a way of necessity by operation of law. “A way of necessity arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over grantor’s other land or land of a stranger. In such cases, grantor impliedly grants a right-of-way over his land as an incident to purchaser’s occupation and enjoyment of the grant.” 2 Thompson on Real Property, supra, § 362; Lumber Co. v. Cedar Works, 158 N.C. 161, 73 S.E. 902 (1912); Pritchard v. Scott, 254 N.C. 277, 118 S.E. 2d 890 (1961); Smith v. Moorer 254 N.C. 186, 118 S.E. 2d 436. (1961).

“When one part of an estate is dependent of necessity, for enjoyment, on some use in the nature of an easement in another part, and the owner conveys either part without express provision on the subject, the part so dependent carries or reserves with it an easement of such necessary use in the other part. . . . [P] roperty owners cannot claim a right-of-way of necessity over the lands of a stranger to their title. However, it is not necessary that the person over whose land the way of necessity is sought be the immediate grantor, so long as there was at one time common ownership of both tracts.” 2 Thompson on Real Property, supra, § 362; 25 Am. Jur. 2d, Easements and Licenses §§ 34-38. Furthermore, to establish the right to use the way of necessity, it is not necessary to show absolute necessity. It is sufficient to show such physical conditions and such use as would reasonably lead one to believe that the grantor intended the grantee should have the right of access. Smith v. Moore, supra (254 N.C. 186, 118 S.E. 2d 436).

Viewed in light of these legal principles, we hold that when Fred Ernul and wife conveyed the two land-locked tracts to M. L. Mansfield, Jr., and wife Edna, and to Garfield Oliver on 4 June 1954, a way of necessity across the lands retained by Fred Ernul was impliedly granted to said grantees — “a reasonable and convenient way for all parties is thereby implied, in view of all the circumstances.” 25 Am. Jur. 2d, Easements and Licenses § 64.

With respect to its location on the ground, “ [t] he rule applicable where a general (unlocated) right of way is granted ... is applicable to the location of a way of necessity. ‘As in the case of easements generally the rule has been established that the right to select the location of a way of necessity belongs to the owner of the servient estate, provided he exercises the right in a reasonable manner, with regard to the convenience and suitability of the way and to the rights and interests of the owner of the dominant estate.’ 17A Am. Jur., Easements § 108.” Pritchard v. Scott, supra (254 N.C. 277, 118 S.E. 2d 890). Accord, Andrews v. Lovejoy, 247 N.C. 554, 101 S.E. 2d 395 (1958); Winston Brick Mfg. Co. v. Hodgin, 192 N.C. 577, 135 S.E. 466 (1926). However, if at the time a way of necessity was impliedly granted on 4 June 1954 there was in use on the land a way plainly visible and known to the parties, “this way will be held to be the location of the way granted, unless it is not a reasonable and convenient way for both parties.” 25 Am. Jur. 2d, Easements and Licenses § 65; 28 C.J.S., Easements § 80; Eureka Land Co. v. Watts, 119 Va. 506, 89 S.E. 968 (1916); Labounty v. Vickers, 352 Mass. 337, 225 N.E. 2d 333 (1967). If controverted at the next trial, whether such way was in use on the land at that time is a jury question.

Judgment of nonsuit was erroneously allowed by the trial court. For the reasons expressed in this1 opinion, the decision of the Court of Appeals reversing the nonsuit is

Affirmed.

Justice Moore did not participate in the consideration or decision of this case.