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Issue  138  Article  229
Published:  1/1/2007

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Street Dedication and Easement Issues Decided
Chris Burti, Vice President and Legal Counsel

Emick  v. Brunswick County , COA06-53, December 19, 2006

This is a case that arose out of a re-platting of property unilaterally by a developer wherein the street was narrowed from 60 feet wide to 35 feet wide in order to permit development of a narrow strip of land. The Court of Appeals determined that an abutting landowner had standing to contest the development of the land due to the narrowing of the street.

The plaintiffs in this action appealed from orders granting Rosewood Investments, L.L.P.'s (third-party defendants') motion to dismiss an amended lis pendens action on Rosewood's lots located at Sunset Beach, North Carolina, granting summary judgment and dismissing plaintiff's complaint against defendants and the third-party plaintiffs. The Court’s recitation of the facts in the opinion is paraphrased as follows for clarity and brevity.

The plan of development of Sunset Beach began in 1955. In 1965, Sunset Beach conveyed three tracts of land showing North Shore Drive as a sixty-foot right of way. Maps prepared from 1955 until 1976 showed that the roads running east to west on the island, including North Shore Drive, were platted as sixty feet wide. In 1976, Sunset Beach prepared a map showing North Shore Drive platted as thirty-feet wide.

In 2001, the plaintiffs purchased a home on the eastern end of Sunset. The plaintiffs' deed referenced a map that shows North Shore Drive as sixty feet wide. It apparently shows a strip of land running between North Shore Drive and the canal, bordering the northern end of the plaintiffs’ property and the lot to the east of their lot. Plaintiffs believed that houses could not be built on the strip of land on the canal due to it not having enough depth to build homes. After development activity began on the disputed strip of land, the plaintiffs commenced a declaratory action.

The trial court granted a motion by Sunset Beach to join all lot owners with property in the Bowen Subdivision adjacent to or abutting North Shore Drive tracts 17, 18 and 19 as necessary parties. Rosewood Investments, LLC was joined as a necessary party in the litigation since it purchased lots on the Point and Tract 20.

Rosewood Investments' motion to dismiss the amended lis pendens was granted by Judge Gore. Judge Gore indicated that the plaintiffs did not have standing as they “failed to allege that they have a particular interest in the outcome of this suit involving public matters that surpasses the common interest of all citizens of the Town of Sunset Beach.”

Judge Johnson entered an order granting Rosewood Investments' motion for summary judgment and dismissing plaintiffs' complaint for lack of standing. On appeal plaintiffs essentially argued that all of the unfavorable rulings were error. The plaintiffs argued that the trial court erred in dismissing their complaint for lack of standing and granting Rosewood Investments' motion for summary judgment and the Court of Appeals agreed with their contentions on this issue. Simply stated in summary, there was standing as there was an actual controversy that could only be resolved through litigation and as the plaintiffs are property owners whose land abuts North Shore Drive. They identified the actual controversy in their complaint and challenged the defendants' development on a portion of North Shore Drive. The Court cited March v. Town of Kill Devil Hills, 125 N.C. App. 151, 479 S.E.2d 252 (1997) “(holding subdivision property owners had standing to seek injunction prohibiting the town from improving unpaved road in violation of plan of development)” and Wooten v. Town of Topsail Beach, 127 N.C. App. 739, 493 S.E.2d 285 (1997) “(abutting landowners on a dedicated street had inherent standing to seek injunction prohibiting town from building parking spaces on street in violation of plan of development shown on recorded map plan of development evidenced by a map made at the time the property was conveyed.)”

The evidence in the case showed that Sunset Beach was incorporated in 1964 and the roads in existence at that time were dedicated to the town. There was testimony that in order to be in compliance with the town's ordinances, a valid plat, “must have a deed reference number, certificate of ownership and dedication and must be signed off by the Planning Board indicating approval of the plat.”  The evidence cited by the Court of Appeals indicated that the plat showing that North Shore Drive as thirty feet wide failed to meet these requirements.

Plaintiffs' evidence showed a chain of title going back to the original Bowen Subdivision plat evidencing a plan of development with North Shore Drive being sixty feet wide. This plan of development is memorialized in a 1965 map, a 1976 map and a 1977 map in the Brunswick County Registry. The 1977 map was specifically referenced in plaintiffs' deed.

Ward v. Sunset Beach and Twin Lakes, Inc., 53 N.C. App. 59, 279 S.E.2d 889 (1981), cited in the opinion is a case which also involved the development of Sunset Beach. The plaintiff in Ward had purchased two lots in 1955 from Sunset Beach. The Court determined in Ward that even though the property had been engulfed by water and subsequently reclaimed by Sunset Beach, the ‘plaintiff once again became fee simple owner of those lots and was entitled to the easement as it existed at the time the plaintiff first acquired the two lots.’ Id., 53 N.C. App. at 63, 279 S.E.2d at 892.”

“That the grantor, by making such a conveyance of his property, induces the purchasers to believe that the streets and alleys, squares, courts, and parks will be kept open for their use and benefit, and having acted upon the faith of his implied representations, based upon his conduct in platting the land and selling it accordingly, he is equitably estopped, as well in reference to the public as to his grantees, from denying the existence of the easement this created. Id., 53 N.C. App. at 66, 279 S.E.2d at 893-94.”

“Once defendant reclaimed plaintiff's land, plaintiff once again became fee simple owner with rights to her land, including access by way of the easement, as it existed at the time of the purchase. Defendant could not revoke the easement as shown on the 1955 Map by having a new map platted.Id.”
In the instant case, plaintiffs “have also supplied maps showing the plan of development and provided expert testimony to establish the location of North Shore on the ground. Based on the record evidence, we reject defendants' assertions that no genuine issues of fact exist as set out in their arguments which include: (a) the Town withdrew North Shore Drive by resolution; (b) Sunset Beach, Inc. withdrew North Shore Drive from dedication in 1999; (c) defendant Town has recognized North Shore Drive as thirty-feet wide; (d) flooding by Tubbs Inlet since 1960 changed the island insofar as plaintiffs' chain of title is concerned; and (e) later maps show North Shore Drive as thirty-feet wide.”

The Court of Appeals observed that the plat records show “North Shore Drive as a dedicated street, sixty feet in width, running the length of the eastern end of the island to Tubbs Inlet, past plaintiffs' lot on Tract 19, as early as 1963. North Shore Drive is the only avenue to Tracts 17-20 and has never been abandoned.” The Court rejected the defendants’ argument that they withdrew North Shore Drive in 1999 by filing a “Withdrawal” pursuant to N.C.G.S. 136-96 and 160A-299.

The Court stated that “North Carolina case law supports plaintiffs' right to enforce the plan of development within their chain of title. Based on the evidence viewed in the light most favorable to plaintiffs, the trial court erred in granting Rosewood Investments' motion for summary judgment. We therefore reverse the grant of Rosewood Investments' motion for summary judgment because of the existence of genuine issues of material fact, and we remand this matter for trial.”

The Court also made short work of the plaintiffs’ argument that the trial court erred by setting aside the entry of default and permitting Rosewood Investments to participate in the action. A trial court judge may set aside an entry of default for good cause and a “motion to set aside an entry of default is addressed to the sound discretion of the trial judge and the order of the trial court ruling on such a motion will not be disturbed on appeal absent a showing of abuse of that discretion. (Citations omitted). ). The Court of Appeals noted in the opinion that the third-party plaintiffs who obtained the entry of default stipulated to the existence of good cause for setting aside the entry and that the appellants did not include any evidence heard by the trial court.  Thus the Court of Appeals was unwilling to substitute their judgment on the issue for the trial judge’s.

This case is the most recent in a fairly consistent and long line of cases evidencing our courts’ unwillingness to permit any alteration of platted streets without the consent of all parties in interest. This has been consistently construed as requiring the joinder of all lot owners in a subdivision that can reasonably contend that the street in question provides access to their lot. In the alternative a governmental body may have the power to effect changes, but must afford due process. It is also clear that the mere recording of a plat resubdividing land will not suffice to alter vested rights in the nature of appurtenant easements that have already been created through the conveyance of lots by reference to the original plat.

Woodring v. Swieter, COA05-1367, December 5, 2006

This case offers an excellent review of various easement doctrines and should be read when considering the existence of an easement where there is not an express grant.

The plaintiffs in this action appealed from summary judgment to certain of the defendants. The trial court concluded that the defendants were entitled to: “(1) an easement across plaintiffs' property for ingress and egress; and (2) an underground easement to maintain a water pipeline for transporting spring water from their property to a state road for sale.” The plaintiffs conceded during oral argument that some of the defendants have an easement for ingress and egress. Thus, the primary issue remaining on appeal was whether the trial court properly concluded, as a matter of law, that defendants have acquired an easement for their waterline.

The Court of Appeals held that the trial court erred in granting summary judgment to defendants with respect to the water line easement. The Court found that the evidence in the record did not establish any basis upon which defendants would be entitled to an easement for their water line.

The facts as presented by the court follow edited for space.

This case involves six pieces of real estate and one right of way. Three of the real estate parcels are presently owned by plaintiffs... These three tracts adjoin to create a rough vertical rectangle (the "Woodring Tract").

The Swieter defendants own three large adjoining parcels that form a rough "horseshoe" around the west, north, and east sides of the Woodring Tract (the "Swieter Tract"). …As Creek Road heads south from the Swieter Tract, it curves slightly west into the Woodring Tract, traveling through it until reaching State Road 1335.

Although plaintiffs once resided on the Woodring Tract, they left North Carolina and moved to Texas in 1971. In 1978, certain members of the Swieter family acquired the 43.941 acre and 51.645 acre parcels … from their predecessors in interest, ... The deed for this transaction included a conveyance of all "right, title and interest" the Gilleys had in any rights of way leading to the Swieter Tract. The parties agree that this conveyance refers to Creek Road, and, at oral argument, plaintiffs conceded that this did in fact convey a valid roadway easement, appurtenant to the Swieter Tract, over Creek Road.

… The Swieters have since used Creek Road continuously as their only means of access to and from State Road 1335.

In 1991, certain members of the Swieter family formed the Water Company to sell natural spring water found on the Swieter Tract …

An underground waterline was subsequently installed along Creek Road to transmit water from the Swieter Tract to a filling station installed by the Swieters pursuant to a lease on a third party's property near the State Road … Since 1992, the Water Company has continuously inspected, maintained, and repaired Creek Road and piped water through the underground waterline.

In 1998, plaintiff Henry Woodring returned to North Carolina for the first time since 1971 and discovered defendants' improvements and alterations on Creek Road. On 6 May 2004, plaintiffs filed suit against defendants ... Following discovery, the parties filed cross-motions for summary judgment, and, on 16 May 2005, Judge Zoro J. Guice, Jr. denied both plaintiffs' and defendants' motions with respect to the waterline easement along Creek Road, but awarded defendants summary judgment "as to a roadway easement for ingress and egress." Following a motion by plaintiffs to reconsider, however, Judge Guice also awarded defendants summary judgment “as to a waterline easement running along the roadway easement”.

Henry Woodring lacked any interest in the Woodring Tract on the date plaintiffs brought this action as he had conveyed all interest in the Woodring Tract to Gary Woodring prior to the filing of the complaint. The Court determined that Henry lacked standing to bring this action. There were arguments that the conveyance of his interest in the Woodring tract was in error, but the Court noted that a deed that may be reformed for mutual mistake was voidable, not void, and conveyed good title that would stand until corrected. “The purportedly mistaken quitclaim deed thus was valid until the correction deed was recorded. As a result, at the time the complaint was filed, Henry had effectively conveyed all of his interest in the Woodring Tract to Gary, and Henry lacked standing to bring this claim. Henry's appeal is, therefore, dismissed.”

Appurtenant easements can only exist to serve their dominant estates and cannot be conveyed independently of the land to which they are appurtenant. “Here, the parties do not dispute that the easements asserted by plaintiffs must be appurtenant to the Swieter Tract. It is also undisputed that the Water Company is a lessee and not an owner of the Swieter Tract. Accordingly, the Water Company could not have an ownership interest in the easements claimed by the Swieter defendants.”  Thus “by failing to distinguish between the Swieter defendants and the Water Company, the trial court's summary judgment order effectively granted the Water Company ownership over the claimed easements”.

Plaintiff also argued that the trial court erred in awarding the defendants summary judgment, as genuine issues of material fact existed with respect to each of the defendants' four easement theories. The plaintiff also contended that he was entitled to summary judgment with respect to these claims. The court dealt extensively with each instance and with appropriate citation, which we will only summarize in the interest of space.

A. Easement by Prescription
For an easement by prescription, one must prove that the use was continuous and uninterrupted for a period of 20 years. “Having installed the waterline in or around 1992, defendants plainly have not met this burden. Defendants nevertheless argue that summary judgment in their favor was proper because they utilized the purported waterline easement under "color of title" for more than seven years”… “For purposes of this opinion, we assume, without deciding, that the doctrine of color of title applies to easements by prescription” … “The deed from the Gilleys refers only to defendants' ‘right-of-way’ over Creek Road and makes no mention of any underground waterline rights.” … “As the deed from the Gilleys provides only a right of way over Creek Road, it fails to provide the Swieter defendants with color of title to a waterline easement located under the road.”

B. Easement Implied by Prior Use
“To establish an easement implied by prior use, a party must prove that: (1) there was a common ownership of the dominant and servient parcels and a transfer which separates that ownership; (2) before the transfer, the owner used part of the tract for the benefit of the other part, and that this use was apparent, continuous, and permanent; and (3) the claimed easement is necessary to the use and enjoyment of the claimant's land.” “defendants have failed to forecast evidence sufficient to establish the latter two elements of an easement implied by prior use.”

C. Easement Implied by Necessity
This “’easement must arise, if at all, at the time of the conveyance from common ownership.’”…“As the waterline was not installed until nearly 60 years after the 1938 transfer of the property away from any purported common ownership, … defendants failed to present evidence sufficient to establish an easement implied by necessity.”

D. Easement by Estoppel
As a general matter, "an easement by estoppel 'may arise where one cognizant of his own right keeps silent in the knowledge that another will be innocently and ignorantly induced to . . . expend money or labor in reliance on the existence of such an easement.'" …“In this case, Henry Woodring's affidavit states that he was not aware of the waterline beneath Creek Road until 1998, approximately six years after it was installed.” …”Consequently, the record contains insufficient evidence to support a finding of an easement by estoppel.”

The Court summed the decision as follows:  “With respect to the Swieter defendants' claim for easements, plaintiff Gary Woodring has abandoned his appeal of the trial court's determination that an easement for ingress and egress along Creek Road exists in favor of the Swieter defendants. As for the claimed waterline easement underneath Creek Road, however, we hold: (1) defendants have not satisfied the requisite period for an easement by prescription and are not entitled to rely upon the shorter period provided by the doctrine of color of title; (2) as to implied easements, defendants have failed to show that the installation of a waterline was intended by the parties to the original transfer from common ownership or reasonably necessary to defendants' use of the property; and (3) defendants failed to forecast sufficient evidence that they are entitled to an easement by estoppel. The trial court, therefore, should have entered summary judgment in favor of plaintiff Gary Woodring regarding defendants' claim of an easement for their waterline.
With respect to plaintiff's claims for trespass, nuisance, unjust enrichment, and unfair trade practices, however, the trial court properly entered summary judgment in favor of defendants.”

Where a plat is filed and lots conveyed by reference to it, the roads shown will be treated as an appurtenant easement for the lot owners regardless of whether they have been opened if they provide useful access. In order to eliminate any portion of these roads, one proceeds at great risk if doing so without the consent of all lot owners or without a legal proceeding where all interests are served.

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