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Issue  134  Article  224
Published:  9/1/2006

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Unrecorded Plats and Appurtenant Easements
Chris Burti, Vice President and Legal Counsel

Nelms v. Davis, COA05-1164, filed on August 15, 2006, is a unanimous decision of the North Carolina Court of Appeals that addresses litigation predicated upon an unrecorded plat that showed an easement. It is illustrative of the increasing importance of careful title work and analysis concerning access issues. Litigation over access is increasing dramatically as people perceive it as method to control the use of adjoining property. Since access is also one of the principle insuring provisions of a standard policy, this issue is being subjected to increasing scrutiny in the underwriting process as well. Legal access rights are not always derived from an express and explicit grant of easement. This opinion illustrates one of the ways in which this may occur. We have extensively quoted and paraphrased the decision in this article because it is well written and analyzed. As such, it serves as an excellent guide for title examiner with regard to “plat dedications”. In this case the plaintiffs appealed from an order of the trial court permanently enjoining them from crossing the defendant’s property. They claimed an easement over defendant's property, and the trial court ruled that they did not at a summary judgment hearing.

The parties own adjacent tracts and included in the defendant's tract is a sixty-foot wide unpaved strip of land, directly adjacent to the plaintiffs' tract that the defendant uses for access. Plaintiffs also use the strip for parking and access to their back yard. Both tracts were originally part of a single tract of land owned by a family that subdivided it into four separate lots, numbered one through four, pursuant to a survey map dated November 24, 1964. The plat shows the sixty-foot wide strip of land presently owned by the defendant. It is labeled “to be street” and is located in the middle between lot number two and the plaintiffs’ lot number three.

The family conveyed lot numbered three to the plaintiffs’ predecessor in title on 25 November 1964 by a deed that referenced the plat in the legal description of the property. The deed also contained a covenant that “[t]he grantors agree that they will dedicate a 60 foot wide street on the western side of the above described lot.” A contemporaneous second deed in like fashion conveyed lot numbered three to the same grantees.  In January of 1966, they conveyed tract three to the plaintiffs also referencing the plat in its legal description. The plaintiffs have consistently used the strip of land since they acquired the property. In 1986, the owners filed a subdivision map showing the property owned by plaintiffs and defendant, which labels the sixty-foot strip as a “future road.” Another subdivision map, filed in 1987, refers to the sixty-foot wide strip as a “private access easement.”

Disputes arose between the parties in 2002, leading to the defendant demanding that plaintiffs cease their use of the strip and placing “no trespassing” signs on it. Plaintiffs continued to use the property with the plaintiffs filing an action for claim for nuisance and the defendant filing an action for civil trespass. Upon cross motions for summary judgment, the trial court determined that the defendant was entitled to judgment as a matter of law, permanently enjoined the plaintiffs from using the strip and denied their claim for nuisance.

This decision reversed the summary judgment order and centered on the plaintiffs’ contention that they own an appurtenant easement in the sixty-foot wide strip. The Court of Appeals recited basic easement principles and quoted a list of cases that would be familiar to many. The Court noted; “‘An appurtenant easement is “an easement created for the purpose of benefiting particular land.”’ Harry v. Crescent Resources, Inc., 136 N.C. App. 71, 74, 523 S.E.2d 118, 120 (1999) (quoting Shear v. Stevens Building Co., 107 N.C. App. 154, 161-62, 418 S.E.2d 841, 846 (1992)). ‘“This easement attaches to, passes with and is an incident of ownership of the particular land.”’ Id. An appurtenant easement may be created by implied or express dedication, with either a formal or informal transfer. Id.”

The court quotes Price v. Walker, 95 N.C. App. 712, 715, 383 S.E.2d 686, 688 (1989). For the   principle that “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.” Realty Co. v. Hobbs, 261 N.C. 414, 421, 135 S.E.2d 30, 35-36 (1964)  is quoted at length and as it is fairly common for practitioners to misuse the term ‘dedication’, it bears repeating here.

“Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use, and this right is not subject to revocation except by agreement. It is said that such streets, parks and playgrounds are dedicated to the use of lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. It is a right in the nature of an easement appurtenant. 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, altered 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); see also Hinson v. Smith, 89 N.C. App. 127, 130, 365 S.E.2d 166, 167 (1988) (“[c]onduct which implies the intent to dedicate may operate as an express dedication, as where a plat is made and land is sold in reference to the plat”).”

In Price, the parties’ deeds expressly referenced a recorded map of the subdivision that showed a road running through the parties’ property. The Price Court held that the road was an easement appurtenant created by selling the tracts referencing the recorded map. “‘The map is the key to the existence of the defendants' easement in this case, and it clearly shows the road.’ Id. at 717, 383 S.E.2d at 689.” This panel observed that the Price Court noted that “it was of no consequence that the pathway had never been dedicated to the public, and that the defendants had alternative routes of ingress and egress.” This is significant because it reinforces the point that this easement doctrine is not governed by the principles involved in implied easements of necessity.

The language of the 1964 deed from the subdividers to the plaintiffs’ predecessor in title stated that “[t]he grantors agree that they will dedicate a 60 foot wide street on the western side of the above described lot.” This Court states that this “evidences the original owners' express intent to dedicate the sixty-foot wide strip to the use of the lot purchasers within the subdivision they created.” The subsequent deeds and muniments of title reflect the following as set out by the Court; “Plaintiffs' 1966 deed from the Mannings expressly references the 1964 survey map. The 1964 survey map depicts the sixty-foot wide strip as ‘to be street.’ The July 1986 subdivision map filed by Davis depicts the sixty-foot strip as a “future road,” and a subdivision map filed 19 June 1987 depicts the sixty-foot wide strip as a “‘private access easement.’” The Court of Appeals asserts that these “actions are sufficient to create an appurtenant easement in favor of plaintiffs in the sixty-foot wide strip.”

The defendant unsuccessfully tried to argue that the failure to record the 1964 survey map prevented the strip from being an appurtenant easement. In North Carolina, recording of the plat is not required under a well-established line of cases and subjective intent to make a dedication is not considered. The Court quotes as follows “A map or plat referred to in a deed becomes part of the deed and need not be registered.” Therefore, as long as the landowner has notice of the plat through his deed, the plat does not have to be recorded in order to effect a right of way dedication. Dept. of Transportation v. Haggerty, 127 N.C. App. 499, 501, 492 S.E.2d 770, 771-72 (1997) (citations omitted).” Thus the 1964 survey map, as a part of the deed itself “did not have to be recorded to serve as a common law dedication.”

The defendant also argued traditional dedication doctrine contending that the strip had never been accepted for dedication by a public authority. The Court of Appeals agreed that it had not  been dedicated to the public and was not a public street citing this year’s Wright v. Town of Matthews, 627 S.E.2d 650, (2006). The Court ruled that public dedication is not required for the plaintiffs to have an easement. The Court relying on Realty Co. reiterates that the creation of private easements by conveying lots through deeds referencing a plat showing private streets or easements is not strictly a dedication. The opinion then cites Rudisill v. Icenhour, 92 N.C. App. 741, 743, 375 S.E.2d 682, 684 (1989) “(noting that purchasers of lots in a platted and recorded subdivision acquire an easement in the subdivision streets, regardless of whether such streets are dedicated to the public).”

The last of the defendant’s arguments addressed by this decision involves the doctrine of necessity. The fact that the plaintiffs' property abutted a public street made use of the strip unnecessary was contended as precluding the plaintiffs' right to use the easement. the defendant argued that Wofford v. Highway Commission, 263 N.C. 677, 140 S.E.2d 376 (1965) limited the right to use easements appurtenant.  The Wofford Court was addressing lot owners’ rights to effect a withdrawal of a dedication of easement pursuant to N.C. Gen. Stat. § 136-96. The Wofford Court limited application the subdivision lot owners’ easement rights those set out in the statute which extend “only to streets or portions of streets of the subdivision necessary to afford convenient ingress or egress to the lot of the purchaser. Under certain circumstances the seller-dedicator or other lot owners may abandon and close a street or a portion of a street. As to the purchaser, opposing such closing, the question is whether the street is reasonably necessary for the use of his lot.” N.C. Gen. Stat. § 136-96 permits the withdrawal of dedicated right-of-way after fifteen years if it has never been opened an if the right-of-way is not “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”).

This Court noted that this case did not involve claims of abandonment of the easement or claims that anyone attempted to close the strip pursuant to N.C. Gen. Stat. § 136-96. “As such, the principle from Wofford cited by defendant has no application in the instant case. See Price, 95 N.C. App. at 717, 383 S.E.2d at 689 (rejecting the plaintiffs' argument that the defendants' easement was extinguished because they had alternative routes of ingress and egress thusly: ‘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 [the original landowner] divided and platted the tracts of land and sold the land while referring to the map showing the [right-of-way]’).”

All this is not to say that there is no need to record these plats, just that such is not always an absolute requirement in order to create legal access. The obvious problem created by not recording the plat is one of proof. One may not always find the plat later when it is needed. One can also assume that anyone who claims an adverse interest to the one you are searching based on an unrecorded plat will have a copy of it (read between the lines in Haggerty). This case also highlights the risk for attorneys drafting deeds created by referencing unrecorded plats in deed descriptions. Unless a copy is recorded or readily available, attorneys can never be certain whether they are promulgating quiescent “dedications” as a title encumbrance or potentially cutting off an easement right by omitting the reference.

The decision serves to illustrate that an easement appurtenant providing legal access to a property may commonly exist where there is no express description of the access appearing in the chain of title. Therefore the lack of an express grant is not always a title defect or even a significant concern where the easement can be readily proved. Title examiners would be well advised to make every reasonable effort to track down elusive plat references where an express grant is wanting.

This point brings up a corollary issue and what might be considered a minor criticism of the opinion. The court took some pains, as noted above, to point out that the record revealed that strip was shown in some fashion on every plat made of the properties in dispute and in every deed in the parties’ chain of title. The court construed this as evidencing the intent to create the easement. As the Court itself noted, common law dedication does not require proof of subjective intent. It is also important to note that if an easement is appurtenant, it remains with the dominant tenement regardless of whether it is referenced or described in the subsequent chain of title until such time as it is terminated or abandoned. While these issues were not in contention in this case and while the contrary is not to be inferred, it is desirable to avoid providing sustenance for such arguments to be briefed in future cases as the out of context statement of Wofford was in this one.

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