Price v. Walker , 95 N.C. App. 712 ( 1989 )

383 S.E.2d 686 (1989)

Russell PRICE and wife, Judy M. Price
v.
Fleming E. WALKER and wife, Victoria Norris Walker; Owen Gerald Williams and wife, Carrie Williams; and Jerry Everett Capps.

No. 8911SC26.

Court of Appeals of North Carolina.

October 3, 1989.

McLeod, McLeod, and Hardison by J. Michael McLeod, Dunn, for appellants.

Vernon K. Stewart, Dunn, for appellees.

ARNOLD, Judge.

The law governing the methods to establish an easement by dedication is well settled. A dedication may be made by express language, reservation, or by conduct showing an intention to dedicate. Conduct indicating the intention to dedicate may be found where a plat is made showing streets and the land is sold either by express reference to such a plat or by a showing that the plat was used and referred to in negotiations for the sale. Houghton v. Woodley, 67 N.C.App. 475, 478, 313 S.E.2d 225, 227 (1984); Green v. Barbee, 238 N.C. 77, 79, 76 S.E.2d 307, 309 (1953). In this case, the evidence is clear that both conveyances from Erwin Mills to D.B. Johnson and from Erwin Mills to Walker Fleming were made by express reference to the Erwin Mills Map.

Furthermore, where land is sold in reference to a plat or map, but the dedication of the land has not been formally accepted by the appropriate authority, purchasers of land who buy property relying on the plat still acquire an easement in those right-of-ways. Realty Co. v. Hobbs, 261 N.C. 414, 421, 135 S.E.2d 30, 35-36 (1964). In this situation, three categories of persons are affected: the purchasers within the platted area, purchasers outside the area designated, and the general public. Plaintiffs and defendants in this case, owners of Tracts No. 4 and No. 5, are purchasers within the area platted because they took their property through deeds that specifically referred to the Erwin Mills Map. The interest created by purchasers within the platted area as to right-of-ways shown on the plat is not strictly speaking a true dedication. A dedication must be made to the public at large, not part of the public, and before a dedication can take effect, it must be accepted by the appropriate authorities. Land Corp. v. Styron, 7 N.C. App. 25, 28, 171 S.E.2d 215, 217 (1969); see Houghton, 67 N.C.App. at 478, 313 S.E.2d at 227. Instead, the defendants' easement in this case is closer in nature to an easement appurtenant, and it is created when the purchaser whose transaction relies on the plat is conveyed the land. Highway Comm'n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967). No further action by the purchaser, vendor, or public authorities is necessary to preserve the easement rights of the purchaser.

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 or diminished except by agreement or estoppel. 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. (Citations omitted)

Realty Co., 261 N.C. at 421, 135 S.E.2d at 36.

The general public, on the other hand, only acquires rights in a dedication upon acceptance of the dedication. Houghton, 67 N.C.App. at 478, 313 S.E.2d at 227. The reason such a dedication is not complete until acceptance is to prevent landowners, simply by executing a deed, from compelling the authorities to assume the burdens of maintaining or repairing property offered for dedication. Id. Purchasers of parcels of land located outside the boundaries of the area platted and recorded acquire the rights of the general public, not the rights of the purchaser within the area. Id.

Plaintiffs argue that language in D.B. Johnson's deed from Erwin Mills was insufficient to create an easement of ingress and egress over Tract No. 4. We disagree with plaintiffs' analysis on the effect of this language.

Plaintiffs rely on Mason v. Andersen, 33 N.C.App. 568, 235 S.E.2d 880 (1977), where this Court held the following language was insufficient to convey an easement to a purchaser for the privilege of using a lake located in a subdevelopment: "This deed is delivered and accepted subject to those restrictions [which were recorded in a plat book]." Id. at 571, 235 S.E.2d at 882. It is true that language in a deed stating a parcel of land is transferred "subject to" several restrictions on its use cannot also be construed to transfer to the owner of the same parcel an easement in the use of other land—in the Mason case, the right to use a lake. Plaintiffs, however, have misapplied the Mason case here. The issue in the present case is not whether the plaintiffs, the owners of Tract No. 4, have an easement across another landowner's property, it is whether the plaintiffs purchased Tract No. 4 subject to an easement held by the defendants. The Mason case in fact demonstrates that plaintiffs took Tract No. 4 subject to such an easement.

An easement is "[a] right to make some use of land owned by another without taking a part thereof." Builders Supplies Co. of Goldsboro, N.C., Inc. v. Gainey, 282 N.C. 261, 266, 192 S.E.2d 449, 453 (1972). The property receiving the benefit of an easement is known as the dominant land; the burdened land is the servient estate. Language such as "subject to" in a deed relegates property in question to the status of a servient estate concerning any restrictions placed on transferred property. Mason, 33 N.C.App. at 572, 235 S.E.2d at 882. Likewise, in the case at bar, the language "subject to" found in plaintiffs' deed indicates plaintiffs' property is the servient estate as to the section of the Pump Station Road that crosses through Tract No. 4. We agree with plaintiffs that the language "subject to" in their deed does not create the easement. As explained above, the easement itself was created by dedication. The language in plaintiffs' deed, however, is important because it notifies any purchaser or subsequent purchaser that an easement exits across Tract No. 4. Defendants, as owners of the dominant estate in this case, possess the privilege to reasonably use the easement across the servient land for the purposes of ingress and egress.

Plaintiffs also argue that if an easement across Tract No. 4 in fact exists, it is an easement by necessity. They contend the easement should now be eliminated because the defendants have alternative routes of ingress and egress. Defendants' easement created by the Erwin Mills deeds and map, however, is not an easement by necessity. The existence of the easement across Tract No. 4 is not dependent on the dominant tenement owners requiring an access to their property, rather it rests on the expectation and reliance created when Erwin Mills divided and platted the tracts of land and sold the land while referring to the map showing the Pump House Road.

Finally, plaintiffs argue without supporting citations that the Tract No. 4 deed from Erwin Mills to D.B. Johnson failed to create an easement because of "the lack of specific description of the alleged easement." As stated above, however, the easement here was created by selling the divided tracts while relying on the Erwin Mills Map. The map is the key to the existence of the defendants' easement in this case, and it clearly shows the road.

Therefore, the plaintiffs are legal owners of Tract No. 4 subject to an easement of ingress and egress for the reasonable use and benefit of the defendants in this matter. The order of the trial court is

Affirmed.

BECTON and COZORT, JJ., concur.