Hundley v. Michael ( 1992 )

413 S.E.2d 296 (1992) 105 N.C. App. 432

Charles C. HUNDLEY and wife, Deborah B. Hundley
v.
Kenneth D. MICHAEL and wife, Freda J. Michael, Patricia B. Malloy, and Van O'Neal Bolin, Jr., and wife, Tammy L. Bolin, and Guilford County.

No. 9118SC317.

Court of Appeals of North Carolina.

February 18, 1992.

Turner Enochs & Lloyd, P.A. by Donald G. Sparrow, Greensboro, for plaintiff-appellees.

Smith, Patterson, Follin, Curtis, James, Harkavy & Lawrence by Marion G. Follin and Tomi W. Bryan, Greensboro, for defendants-appellants Kenneth D. and Freda J. Michael.

WALKER, Judge.

In their first assignment of error, defendants contend the trial court erred in concluding plaintiffs are entitled to make full use of the property within the easement as long as plaintiffs do not interfere with defendants' access to Lot 2.

In asserting that plaintiffs have no right to make use of the property within Pat's Place Lane, defendants rely upon Rollinwood Homeowners Association v. Jarman, Inc., 92 N.C.App. 724, 375 S.E.2d 700 (1989). In that case, a fifteen foot easement for the purposes of "placing and maintaining landscaping and shrubbery" existed in favor of plaintiffs' property. Defendants, the owners of the servient tenement, destroyed a portion of plaintiffs' shrubbery and placed a driveway over the easement. Defendants contended the term "landscaping" as used in the grant was ambiguous and that there was no evidence they interfered with the landscaping activities of plaintiffs. The Court said the grant of the easement for "maintaining landscaping and shrubbery" was clear and that defendants' construction and use of a driveway interfered with plaintiffs' use and enjoyment of the easement.

We do not consider Rollinwood to be dispositive of the present case. In Rollinwood the owners of the servient tenement attempted to make a use of the easement which was clearly contrary to the express purpose of the easement. In the present case, defendants contend that Ms. Malloy intended for them to be the only ones to use the easement for ingress and regress since the easement was the sole access to their property and the grant was "exclusive." In determining what uses the servient tenement may make of the land within the easement the court should look to the words of the deed or instrument creating the easement. Hine v. Blumenthal, 239 N.C. 537, 80 S.E.2d 458 (1954). One must look at the language of the deed or instrument rationally and construe the language consistent with reason and common sense. If there is any doubt as to the parties' intentions, an interpretation should be adopted which conforms more to the presumed meaning, one that does not produce an unusual or unjust result. Id.

Ms. Malloy conveyed Lot 3 to the Bolins burdened with this easement. She elected not to retain the fee simple title to this fifteen feet of property or to convey it in fee simple to the Michaels. To have done so would have established her intent to give defendants an "exclusive" right to Pat's Place Lane. However, to now exclude the servient tenement owner from using the property within the easement would indeed produce an "unusual" result. Absent explicit language to the contrary, the owner of land subject to an easement has the right to continue to use his land in any manner and for any purpose which is not inconsistent with the reasonable use and enjoyment of the easement. Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d 906 (1944). Therefore, we reject the interpretation urged by defendants. Obviously, plaintiffs cannot block or interfere with defendants' right of ingress and regress over Pat's Place Lane, but we agree with plaintiffs that the term "exclusive" as used here cannot be interpreted so as to exclude the owner of the servient tenement from using the property within the easement consistent with the purpose of the easement.

Defendants next contend the trial court erred in ordering them to remove the fence which they had constructed to keep plaintiffs from using the easement. We note that an easement holder may not increase his use so as to increase the servitude or increase the burden upon the servient tenement. P. Hetrick, Webster's Real Estate Law in North Carolina Sec. 328 (rev. ed. 1981). If the easement holder makes an unwarranted use of the land in excess of the easement rights held, such use will constitute an excessive use and may be enjoined. Hales v. Atlantic Coast Line Railroad Co., 172 N.C. 104, 90 S.E. 11 (1916).

As previously discussed, plaintiffs have the right to use their property within the easement consistent with the purpose for which the easement was created. However, by erecting the fence defendants have prevented plaintiffs from using Pat's Place Lane for egress and regress to Lot 3. Accordingly, the trial court properly entered an injunction requiring defendants to remove the fence.

Affirmed.

ARNOLD and PARKER, JJ., concur.