Yount v. Lowe

209 S.E.2d 867 (1974) 24 N.C. App. 48

Robert L. YOUNT et al., Plaintiffs,
v.
Elmer LOWE.

No. 7423SC762.

Court of Appeals of North Carolina.

November 25, 1974.

Butner & Gaither by J. Richardson Rudisill, Jr., Hickory, for plaintiffs-appellants.

E. James Moore and Vannoy, Moore & Colvard by J. Gary Vannoy, North Wilkesboro, for defendant-appellee.

BALEY, Judge.

The sole question presented by this appeal is whether the trial court erred in granting summary judgment for defendant. Summary judgment is properly granted when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. N.C.R. Civ.P. 56(c). "The purpose of summary judgment can be summarized as being a device to bring litigation to an early decision on the merits without the delay and expense of trial where it can be readily demonstrated that no material facts are in issue." Kessing v. Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829. See also Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400; 2 McIntosh, N.C. Practice 2d, § 1660.5.

Upon hearing on defendant's motion, the trial court had before it copies of the consent judgment entered into by Elmer Lowe and Paul Rhodes and a deed from Paul Rhodes to plaintiffs' immediate predecessors in title. The consent judgment granted to defendant and his successors in title forever a perpetual right and easement over the lands now owned by plaintiffs and made such easement appurtenant to and running with defendant's land. The easement was particularly described and located across plaintiffs' property. The deed from Paul Rhodes which recognized the right of easement in favor of defendant demonstrated beyond question his intent in the consent judgment granting the easement.

A consent judgment is a contract between the parties. Mullen v. Sawyer, 277 N.C. 623, 178 S.E.2d 425; Stanley v. Cox, 253 N.C. 620, 117 S.E.2d 826. Its terms are not controlled by the statute under which the action originally was brought. This statute, G.S. § 136-69, covers the acquisition and not the continuance of a cartway. It lists the uses for which a landlocked property owner may secure access to a public highway. It does not limit the uses of the property once the cartway has been acquired. Plaintiffs are bound by the consent judgment entered with their predecessor in title.

There being no genuine issue of material fact, we hold that defendant is entitled to summary judgment as a matter of law and that the trial court was correct in bringing this litigation to an early end.

Affirmed.

HEDRICK, J., concurs.

MORRIS, J., dissents.