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Issue  161  Article  274
Published:  12/1/2008

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Dirt Tales From the Deed Vault - Episode 20
John Dillard, Vice President and Legal Counsel

In this month’s installment, Statewide Title’s Dirt Tales examines the scope of the grant for easement that has been given.

Real estate developer Carlton Shucks found the perfect tract of land on which he wanted to develop and build residential homes.   The land had everything - rolling hills, beautiful views and streams running through it.  However, there seemed to be a problem.  The property had a 40-foot easement for road use, but it had not been granted an easement to run utility lines.  Carlton was about to back out of the deal when the realtor, fast-talking Billy Mayes, convinced Carlton to go forward with the transaction.  Billy made the argument that since the tract had been restricted to residential use it would be reasonably necessary that an easement for residential use include, not only the right for ingress and egress, but also the right to lay utility lines.  Any other conclusion would render the lot restricted for residential use basically uninhabitable and useless. He further argued that a 30-foot wide road was plenty wide enough for ingress and egress and that left 10 feet to run the utility lines.

Billy was convincing when he talked, and it was no wonder he was a top-selling realtor.  Carlton bought into Billy’s line of reasoning and proceeded with the purchase.  He had the tract surveyed, divided into lots and a plat filed of record.  Then he cut roads through the subdivision.  He contacted the electric company to have underground power lines installed along the roads.  When the electric company came out and began digging a trench along the road, the neighbor, who owned the servient land, took notice.  The neighbor pointed out to Carlton that he did not have an easement across his land for utilities, only for a road.  Carlton offered to buy an easement from him, but the neighbor declined, as he did not want to see the tract developed, as he was fearful of the heavy amount of traffic that would be passing by his house daily.

When Carlton and the neighbor could not work out an agreement, attorneys became involved and eventually a declaratory action was filed.  The court heard the evidence and argument by Carlton’s attorney that when property was restricted for residential use and an easement given for roads it had to be implied that an easement also was given for utilities or else the property would be rendered useless.  The court ruled against Carlton citing authority in Swaim v. Simpson 120 NC App 863, 463 SE 2nd 785 (1995) affirmed in 343 NC 298, 469 SE 2nd 553 (1996).  In Swaim the Plaintiff had been granted an easement for ingress and egress only and when they attempted to install and maintain utilities within the easement for ingress and egress, the court held this would be increasing the burden on the servient tract.  The court went on to point out that an easement granted for ingress and egress cannot be expanded in scope beyond what the parties intended when the easement was granted.  In the case at hand, the easement that had been granted for road use for Carlton’s tract could not be expanded in scope to include utilities as to do so would be expanding the easement beyond the scope the original parties intended and over burdening the easement.

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