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Issue  93  Article  168
Published:  4/1/2003

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Easement Case Highlights Title Issues
Chris Burti, Vice President and Legal Counsel

Litigation over access rights is steadily increasing. What was once a casual concern of title examiners should now require strict scrutiny. A generation ago access was taken pretty much for granted and it was rare that neighbors contested an adjoiner’s right to cross an established path. It was common to procure title insurance based upon affidavits of long use. Use of the property tended to stay the same and this resulted in little dissatisfaction upon change in ownership. In rural areas that change in ownership might often be to a related party to the original owner.

Burgeoning development in the state has brought change at an ever-increasing rate. Long time residents or even new residents who dislike the character of the change often resist these changes. Disputing access rights is proving to be an effective tool to resist changes in the use of adjoining property. Often the mere threat is enough to bring on negotiations and palatable compromises. Obviously, the increase in litigation demonstrates that compromise is less frequently achieved. We will review two recently released opinions from the North Carolina Court of Appeals to illustrate just how these issues are emerging.

Young v. Lica, COA02-652, filed March 4, 2003 is a decision dealing with an expansion of an existing easement. The plaintiffs own property located between the State Highway and Shoal Creek in Jackson County. In 1997 the defendants acquired property across Shoal Creek adjoining plaintiffs' property together with an easement across plaintiffs' land to the highway. The easement description was:

"BEGINNING at the margin of State Highway No. 107, (right side of Highway going towards Sylva, N.C.) and runs near Southeast about 90 feet to the middle of the Creek; thence about North West the same distance to the margin of said highway, and wide enough for trucks or other vehicle to travel over, which includes the present site, for use of travel only for [the predecessors-in-interest of defendants] and their heirs and assigns forever."

Only a single lane extended from the highway to a wooden bridge that crossed Shoal Creek at the time defendants purchased the property. The old bridge was low and narrow, and was "very hazardous ... even for foot traffic". Defendants informed plaintiffs that they intended to improve the old bridge. Plaintiffs desired to shift the location of the path and bridge. Without further contact, "defendants removed the wooden bridge and installed two corrugated steel culverts and filled in around them to create a level roadbed. The new bridge was approximately eight feet higher in elevation than the old bridge and approximately sixty feet wide, enough for two lanes." Plaintiffs made no objections while the construction was proceeding. Plaintiffs filed suit seeking a permanent injunction and damages for trespass to their property and nuisance.

"The trial court concluded as follows:
(1) There is no cause of action for trespass or nuisance against the defendant[s] when they have "improved" what they were already entitled to use; to wit; easement for a road right of way.

(2) There is a cause of action for damages for compensation against the defendants for enlarging and widening the easement in question to the extent it imposes an additional burden on the plaintiffs' land and entitles the plaintiffs to additional compensation. The trial court denied injunctive relief and ordered a trial on damages." The Court of Appeals reversed.

The Court noted that "The elements of a trespass claim are that plaintiff was in possession of the land at the time of the alleged trespass; that defendant made an unauthorized, and therefore unlawful, entry on the land; and that plaintiff was damaged by the alleged invasion of his rights of possession." Jordan v. Foust Oil Company, 116 N.C. App. 155, 166, 447 S.E.2d 491, 498 (1994) (citing Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952))." The trial court must determine the location and boundary of the easement and whether defendants made an unauthorized entry on plaintiffs' property. "If the culverts and roadway are totally located within the boundaries of the easement, no unauthorized entry occurred. If the culverts and roadway are located outside the boundaries of the easement, defendants made an unauthorized entry onto plaintiffs' land."

The Court of Appeals gives the trial court guidance on how to determine the extent of the easement. "The description sets a general single line for the easement and states that it is ‘wide enough for trucks or other vehicle to travel over, which includes the present site’ but fails to establish the location and width of defendants' easement. (emphasis supplied). The description of an easement ‘must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers,’ but ‘[t]here must be language in the deed sufficient to serve as a pointer or a guide to the ascertainment of the location of the land.’ King v. King, 146 N.C. App. 442, 444-45, 552 S.E.2d 262, 264 (2001) (quoting Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942)). The original path across plaintiffs' property when the defendants purchased their property consisted of an old single lane logging road and wooden bridge in the same general location as the new bridge and road built by defendants. The improvements defendants constructed are nearly four times wider and twice as high as the old road and bridge. Since the description of the easement is insufficient to establish its location or boundary, the burden rests on defendants to prove the nature and extent of the easement claimed."

The ability to exclude others from the property is an essential right inuring to the owner of real property. A continuing trespass occurs when one builds upon the property of another without right or permission. The Court notes that the "‘usual remedy for a continuing trespass is a permanent injunction which in this case would be a mandatory injunction for removal of the encroachment." Williams v. South & South Rentals, 82 N.C. App. 378, 383, 346 S.E.2d 665, 669 (1986) (citing O'Neal v. Rollinson, 212 N.C. 83, 192 S.E. 688 (1937); Conrad v. Jones, 31 N.C. App. 75, 78, 228 S.E. 2d 618, 619 (1976)).’"

The Court then commented that "Defendants could have sought consent or mutual agreement from plaintiffs or, failing that, a judicial determination of the location and extent of their easement prior to construction. Instead, after one contact, with an out-of-state owner who visited their property infrequently, defendants undertook improvements significantly greater than upgrading the existing roadway or bridge." The Court remanded the case to the trial court with instructions "to determine the location and width of the easement or whether the improvements were constructed outside the boundaries of the easement. The trial court must determine the location and width of the easement granted to defendants in order to determine whether defendants trespassed on plaintiffs' property or committed a nuisance."

The Court discusses balancing the equities in formulating remedies for injunctive relief. The case is highly representative of the increasing occurrence of disputes arising from the development of raw land. The long existing use of undeveloped land rarely gives rise to actual occupation of more than an unimproved, narrow dirt path. Improvements to accommodate the increased traffic occasioned by development frequently produces questions of whether they increase the burden on the servient land. Judge Timmons-Goodson dissented on procedural grounds so the issues on appeal in this case may not yet be resolved.

Owen Office Park, Inc., V. D.L. Rogers Corp., COA02-456, filed: March 4, 2003, is an unpublished North Carolina Court Of Appeals opinion that deals with the ineffectiveness of a purported withdrawal of offer of dedication. The plaintiff owns thirteen acres and defendant owns property situated between plaintiff's property and a major thoroughfare. A family owned a single, large tract of land from 1900 to 1963. In 1963, a prior owner purchased a portion of the land called the Office Park Property, now owned by plaintiff, for commercial development. While the Office Park Property had road frontage, it had no access to the thoroughfare because the family retained the land between it and the thoroughfare. The prior owner's recorded option to purchase the land included a provision that the family would dedicate a public street connecting the Office Park Property to the thoroughfare. In 1966, they filed a dedication of a 50-foot-wide public street to the City of Fayetteville. In 1969, the original parties agreed to relocate the easement and the family built the road, including curbing and guttering, in 1969. The City never accepted the offer of dedication and never maintained the street. In 2000, defendant purchased the property located between the Office Park Property and the thoroughfare. Subsequently, the family recorded a document purporting to withdraw the dedication.

The trial court, sitting without a jury, entered a detailed order. It concluded that "(1) plaintiff had acquired an easement by necessity; (2) plaintiff was entitled to the use of [the dedicated road] under N.C. Gen. Stat. § 136-96; (3) plaintiff had the right to continue the use of the road because the road was opened and used by the public; and (4) plaintiff had the legal right to use the road pursuant to the principles of equitable estoppel."

The Court of Appeals disagreed with defendant's arguments that the trial court erred in its conclusions. "An easement by necessity will be implied upon the showing of: (1) common ownership of the alleged dominant parcel and the alleged servient parcel which was terminated by the transfer of a portion of the lands; and (2) as a result of the transfer, it became necessary for the alleged dominant parcel to have an easement over the alleged servient parcel. Wiggins v. Short, 122 N.C. App. 322, 469 S.E.2d 571 (1996). It is not required that absolute necessity be shown. Id. It is sufficient to show physical conditions and use that would reasonably lead one to believe that the grantor intended the grantee should have the right of access. Id. See also Oliver v. Ernul, 277 N.C. 591, 599, 178 S.E.2d 393 (1971)." The recorded option and offer of dedication clearly show the intent of the parties. The road was actually paved, with curbing and guttering installed and has been used by the public ever since. These are sufficient findings of fact to support the trial court's conclusion of a way of necessity.

The defendant asserted that because the City never accepted the dedication, the offer of dedication was revocable at any time and was in fact revoked under the provisions of N.C. G. S. § 136-96. The Court states that "Section 136-96 provides a means for withdrawal of a street dedication where the property in question is not actually opened and used by the public within fifteen years. N.C. Gen. Stat. § 136-96 (2001); Town of Atlantic Beach v. Tradewinds Campground, Inc., 97 N.C. App. 655, 389 S.E.2d 276, cert. denied, 326 N.C. 805, 393 S.E.2d 906 (1990)...The statute further provides that it has no application where the street is necessary to afford convenient ingress and egress to parcels of land conveyed by the dedicator. Steadman v. Town of Pinetops, 251 N.C. 509, 112 S.E.2d 102 (1960)." The decision notes that the trial judge specifically found that the road "was at the time of dedication and is today, necessary to provide convenient ingress..." The specific language of the statute states that the "provisions of this section shall have no application in any case where the continued use of any strip of land dedicated for street or highway purposes shall be necessary to afford convenient ingress or egress to any lot or parcel of land sold and conveyed by the dedicator of such street or highway." The standard for proving convenience has not been one that has been difficult to meet. Cases such as Steadman, Janicki v. Lorek, 255 N.C. 53, 59, 120 S.E.2d 413, 418 (1961) up to Stephens v. Dortch, 144 N.C. App. ___, COA00-1430-2 (2001) have established this principle without uncertainty.

Curiously, the Court did not discuss the fact that the road was opened and was used by the public from its completion. It would seem that these facts alone would also take the issue out from under the operation of the statute without having to consider necessity. The Court found it unnecessary to address the defendant's other arguments.

The decision is illustrative of a long line of recent opinions rendering N.C.G.S. § 136-96 virtually ineffective. One should be extremely dubious of the efficacy of a withdrawal of dedication unless all interested parties have joined in the execution. This may include requiring all lot owners in a subdivision to join. Arguably, a cul-de-sac should only require the property owners abutting the street to withdraw an offer of dedication since it can not provide any access to other lot owners. No North Carolina court has articulated a right to maintain the street dedication offer in order to be able to use the street for any other purpose than access to the lot owner’s property.

It should also be noted that cases interpreting the applicability of N.C.G.S. § 136-96 have consistently pointed out the need to determine the identity of the parties holding the right to withdraw when present. N.C.G.S. § 136-96 provides "that no abandonment of any such public or private right or easement shall be presumed until the dedicator or some one or more of those claiming under him shall file and cause to be recorded in the register's office of the county where such land lies a declaration withdrawing such strip, piece or parcel of land from the public or private use". Russell v. Coggin, 232 N.C. 674, (1950) held that where the owners of subdivided land sells lots by block and lot number with reference to a plat showing streets, they retain the fee in the streets. The fee is subject to the easement dedicated to the public in general and to the owners of adjacent property. The dedicators are the only parties entitled to withdraw the streets from dedication pursuant to N.C.G.S. 136-96. Lot owners may only withdraw an offer of dedication pursuant to one portion of the statute. That part provides that where "any corporation has dedicated any strip, piece or parcel of land in the manner herein set out, and said dedicating corporation is not now in existence, it shall be conclusively presumed that the said corporation has no further right, title or interest in said strip, piece, or parcel of land, regardless of the provisions of conveyances from said corporation, or those holding under said corporation, retaining title and interest in said strip, piece, or parcel of land so dedicated; the right, title and interest in said strip, piece, or parcel of land shall be conclusively presumed to be vested in those persons, firms or corporations owning lots or parcels of land adjacent thereto, subject to the provisions set out herein before in this section."

The problems in each of these cases serve to highlight the risks in using title insurance to close a transaction when the issue may have been cured prior to closing by affirmative acts. Title insurance only insures title losses. These may be differences in value, litigation costs or curative costs at the election of the insurer. Title insurance does not provide for consequential damages. In the first case, there was a valid easement. There is no recovery under a standard policy for the thwarted expectations of the developer if a larger access can not be constructed. Any compensation for the right to build a 60-foot right of way will come out of the developer’s pocket. In the second case, a title insurer would have liability if it agreed to insure the validity of the attempted withdrawal. However, the road might not diminish the lot value. It might even be enhanced. In such a situation, there would be no recovery under the standard policy. It may be argued that most access losses involve consequential damages. Attorneys should be very reluctant to proceed with questionable access issues relying solely on title insurance. When they must, the client should be very clearly advised of the risks.


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