Borders v. Yarbrough ( 1953 )

75 S.E.2d 541 (1953) 237 N.C. 540

BORDERS
v.
YARBROUGH.

No. 305.

Supreme Court of North Carolina.

April 15, 1953.

Horn & West, Shelby, for plaintiff, appellee.

Horace Kennedy, Shelby, for defendant, appellant.

PARKER, Justice.

The appellant in her brief makes only these contentions: First, that the description of an easement in the deed is too uncertain, vague and indefinite to permit identification with reasonable certainty of an easement; that the claimed easement is not apparent; and that the plaintiff does not allege in her complaint that her right to run a sewer line across defendant's lot is a way of necessity.

An easement is an interest in land, and is generally created by deed. Mordecai Law Lectures, Vol. 1, p. 464; Norfleet v. Cromwell, 64 N.C. 1; Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484. G.S. § 47-27 provides for the recordation of deeds of easements. "Grantees take title to lands subject to duly recorded easements which have been granted by their predecessors in title. G.S. § 47-27; Walker v. Phelps, 202 N.C. 344, 162 S.E. 727; Norfleet v. Cromwell, 64 N.C. 1; Burgas v. Stoutz, 174 La. 586, 141 So. 67; J. T. Donohue Realty Co. v. Wagner, supra [154 Md. 588, 141 A. 337]; 28 C.J.S., Easements, § 24, page 676, et seq." Waldrop v. Town of Brevard, 233 N.C. 26, 62 S.E.2d 512, 514. To the same effect 17 Am.Jur., Easements, Sec. 132.

"With reference to the manner of grant, the rule is that in describing an easement, all that is required is a description which identifies the land that is the subject of the easement and expresses the intention of the parties. No set form or particular words are necessary to grant an easement. As a general rule, any words clearly showing the intention to grant an easement which is by law grantable are sufficient. In easements, as in deeds generally, the intention of the parties is determined by a fair interpretation of the grant." 17 Am.Jur., Easements, Sec. 25.

"An easement may be created by express grant. No particular words are necessary to constitute a grant, and any words which clearly show the intention to give an easement, which is by law grantable, are sufficient to effect that purpose, provided the language is certain and definite in its terms. * * * The instrument should describe with reasonable certainty the easement created and the dominant and servient tenements." 28 C.J.S., Easements, § 24.

It is stated in 110 A.L.R. Annotation p. 175 "where the grant of an easement of way does not definitely locate it, it has been consistently held that a reasonable and convenient way for all parties is thereby implied, in view of all the circumstances," (Citing numerous authorities); and also at p. 178 "It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant."

The creation of an easement by deed must not be so uncertain, vague and indefinite as to prevent identification with reasonable certainty. Gruber, Inc. v. Eubank, 197 N.C. 280, 148 S.E. 246; Thompson v. Umberger, supra.

In Patton v. Western Carolina Educational Co., 101 N.C. 408, 8 S.E. 140, 141, a deed in the defendant's chain of title contained this clause: "With the following reservation, that is to say, the said M. M. Patton reserves 33 feet for a street running from the cross street down L. Clayton's fence to J. P. Jordan's fence, then up Jordan's fence to the street that leads down to M. M. Patton's house." Patton's deed to Jordan contained the following clause: "And further, that the street now opened up through to the college land, thirty-three feet wide, shall be kept open." This Court said: "The reservation is not vague and uncertain, as * * * in Waugh v. Richardson, 30 N.C. [470] 471 and McCormick v. Monroe, 46 N.C. 13, relied on by defendants."

We have examined the original record in Bender v. American Tel. & Tel. Co., 201 N.C. 355, 160 S.E. 352, 353. The description in the conveyance of the right-of-way, an easement in land, is as follows: "I hereby grant unto the said company, its associated and allied companies, their respective successors, assigns, lessees and agents, the right, privilege and authority to construct, reconstruct, operate and maintain lines of telephone and telegraph, consisting of such poles, wires, cables, conduits, guys, anchors and other fixtures and appurtenances as the grantee may from time to time require, upon, across and/or under the property which I own or in which I have any interest in the Township of Nutbush, County of Warren and State of North Carolina, bounded on the East by R. J. Bender; on the South by Peter Seaman; on the West by Mrs. Henry Bender, and on the North by Frances Taylor, and upon and along the roads, streets or highways adjoining the said property, etc." This Court said in that case: "The description in the conveyance of the right of way, an easement in land, is sufficiently definite and certain."

Let us apply the law to the facts. A deed in the defendant's chain of title, properly recorded, and specifically referred to in the deed to the defendant states "this lot is sold subject to an easement across the same for a sewerage line running from lot No. 5 to the disposal in the street. This shall be a perpetual easement over this lot." The defendant took title to lot No. 6 subject to this duly recorded easement, which had been granted by her predecessor in title. The description in the deed identifies lot No. 6 as the subject of the easement, and expresses the intention of the parties that a sewerage line shall run from lot No. 5 over lot No. 6 to the disposal in the street. The deed describes with exactness the dominant and servient tenements.

The complaint alleges: "That the sewerage lines of the plaintiff and defendant join at a point on the aforesaid lot No. 6 and a common sewerage line ran to the disposal in the street; that this condition existed before the plaintiff acquired the aforesaid lot No. 5 and before the defendant acquired the aforesaid lot No. 6, and was in accordance with the perpetual easement over the said lot No. 6 in favor of the said lot No. 5; that this condition continued to exist until early in June 1952." In June 1952 the defendant disconnected plaintiff's line. This user of a reasonable way for a sewerage line by the owner of lot No. 5, the dominant tenement, across lot No. 6 to the disposal in the street, acquiesced in by the owner or grantor of the servient estate, lot No. 6, sufficiently locates the way, which will be deemed to be that which was intended by the grant of the easement.

The description in the deed of the easement for a sewerage line in this case is sufficiently definite and certain, and we so hold.

The facts in Gruber v. Eubank, supra, relied upon by the defendant, and Thompson v. Umberger, supra, are distinguishable.

The plaintiff having an easement created by deed does not have to allege nor contend for a way by necessity. Under the facts of this case it is immaterial whether the easement is apparent or not.

The demurrer was properly overruled, and the defendant's assignment of error is not tenable.

Affirmed.