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Issue  249  Article  401
Published:  10/1/2018

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The Town of Carrboro v. Slack (COA17-864) 9/18/2018
COA Analyses Express and Implied Easement Claims

Chris Burti, Vice President and Senior Legal Counsel

The dispute resulting in this Court of Appeals opinion involves four adjacent tracts of land which can be pictured as four quadrants on a map. The defendants own several acres in the southwest quadrant with a private gravel road along the eastern edge of their property. The Town of Carrboro, the Town of Chapel Hill, and Orange County (Governmental Plaintiffs) own a roughly 100-acre tract in the northwest quadrant. William Inman's (Inman) property, including his home is located in the northeast quadrant and the property of the Episcopal Church of the Advocate (Church) is the southeast quadrant. This appeal addresses who has an easement to use that gravel road to access these other properties beyond the defendants' property.

At the summary judgment hearing before the trial court, the Governmental Plaintiffs asserted numerous alternative legal theories based upon almost every available form of express or implied easement available under North Carolina law. The opinion addresses each theory raised and the Court of Appeals ultimately concludes that the Government Plaintiffs do not possess any easement rights over the defendants' property, reversing and remanding that portion of the trial court's summary judgment order directing the trial court to enter judgment in favor of the defendants'.

The Court of Appeals also affirmed the trial court's entry of summary judgment in favor of Plaintiff William Inman on his prescriptive easement claim, but vacated the trial court's permanent injunction against the defendants installing a gate across the easement and remanded the issue to the trial court for further proceedings as discussed below. The opinion states that the gravel road in dispute is located on the border between the defendants' property and the Church property. It extends from the southern border of those properties all the way to the southern boundary of Inman and government properties on the north. This gravel road is referenced in all of the deeds in the defendants' chain of title and has existed since the 1940s and those deeds reference this "private road" to describe the eastern border of the defendants' property.

In 1965, the defendants' predecessors in title conveyed a thirty-foot "perpetual easement" for access on the eastern edge of the defendants' property (along the common border with the Church property) that "is appurtenant to and runs with the land" and running to the property subsequently acquired by Inman and the Governmental Plaintiffs. This deed required the grantee to "pave a roadway along said right of way," to "landscape said right of way," and to "cause same to be passable for ingress and egress at all times during construction." The problem with this conveyance was that at the time, the grantee did not actually own the land purportedly benefitted by the easement.

Roughly a month later, the predecessor-in-interest to the Church property granted an appurtenant easement to the owners of the property subsequently acquired by Inman and the Governmental Plaintiffs. Unlike the easement involving the Defendants' property, which was between the defendants' predecessors in title and third parties, this easement was between the owner of the Church property and the owner the tract to the north subsequently divided and acquired by Inman and the Governmental Plaintiffs. This easement described a sixty-foot right of way in areas south of the defendants' property that became a thirty-foot easement along the western boundary of the Church property adjoining the defendants' property. Both easements, if valid and combined, would form a sixty-foot right of way leading to the property to the north.

In 2015, the defendants began re-grading the gravel road on their eastern border and shifted that gravel road slightly westward, entirely onto their property. They also began constructing a fence separating their property from the Church property and dividing the purported sixty-foot easement. The government plaintiffs and Inman then objected, arguing that they possessed an easement over the Defendants' property that was contiguous with the thirty-foot express easement on the Church property and that it prevented the defendants from moving the gravel road or constructing a fence on their property line.

The trial court ultimately entered summary judgment in favor of the plaintiffs after concluding that the plaintiffs possessed an easement along the eastern border of the defendants' property and permanently enjoined the defendants from moving or impeding the gravel road, or placing any fence along the eastern border of their property giving rise to the appeal under discussion.

The plaintiffs asserted numerous legal theories to support their motion for summary judgment, however the trial court's order did not identify any particular theory or theories upon which it relied. The opinion addressed each of these theories in an excellent analysis as follows (original text edited for brevity):

I. Express Easement Appurtenant

The plaintiffs argued that they held an express easement appurtenant over a thirty-foot right of way along the eastern border of the defendants' property. In 1965, the defendants' predecessors-in-title, granted a thirty-foot easement along the edge of the property that allowed the grantees to access the Byrd Farm (the property now owned by Plaintiffs) from a nearby road bordering the grantors' property. The easement granted "a perpetual right and easement, for ingress and egress . . . it being agreed that the right and easement hereby granted is appurtenant to and runs with the land." This language unquestionably indicates an intent to grant an easement appurtenant that runs with the property (the servient estate) for the benefit of the Byrd Farm (the dominant estate). But there is a problem. The grantees did not own the Byrd farm (the dominant estate) at the time of the grant of this purported easement appurtenant. Indeed, these grantees never owned the Byrd Farm—the record suggests that they planned to buy the property at some point, but the sale never took place.

Plaintiffs contend that "it makes no difference that they never acquired any interest in the

[Byrd Farm] because the easement granted was not 'in gross' and purely personal to those grantees." Thus, Plaintiffs reason, because the easement expressly states that it is not a personal license and that it runs with the land, it necessarily must be an easement appurtenant.

We reject this argument. An easement appurtenant must be "granted to one who also holds title to the land benefitted by the easement, i.e., the dominant estate." (citation omitted by editor) . "The easement attaches to the dominant estate and passes with the transfer of the dominant estate as 'an appurtenance thereof.'" Id.

A landowner cannot create an easement appurtenant in a transaction with a complete stranger to the dominant estate. See Woodring v. Swieter, 180 N.C. App. 362, 368, 637 S.E.2d 269, 275–76 (2006). Although easements appurtenant generally are favorable to the owner of the dominant estate, they are "owned in connection with [the dominant estate] and as an incident to such ownership." (citation omitted by editor).

In other words, they create property rights in the dominant estate. These rights cannot be unilaterally imposed on an unwilling landowner; the owner of the dominant estate must accept the creation of this property right. Thus, to create an easement appurtenant, the transaction that creates these rights and obligations must be between the owner of the servient estate and the owner of the dominant estate. (citation omitted by editor) .

Here, the transaction was between the owner of the servient estate and third parties that did not own the dominant estate. As a result, despite language indicating an intent to create an easement appurtenant, this transaction created only an easement in gross granting personal rights to those third parties.

II . Express Easement by Reservation

Plaintiffs next argue that that they possess an express easement by reservation because "every deed in the Defendants' chain of title creates an easement by reservation over the 'private road' running to the 'Byrd land' from which [Plaintiffs'] properties originate."

An easement by reservation or exception arises when the "grantor reserves something arising out of the thing granted" or "withdraws from the effect of the grant some part of the thing itself." Central Bank & Trust Co. v. Wyatt, 189 N.C. 107, 109, 126 S.E. 93, 94 (1925). Plaintiffs focus their argument on the lack of any description in these deeds of the dominant estate and how this Court can look to extrinsic evidence to identify the intended dominant estate that benefits from this private road.

But this overlooks a more fundamental problem with this argument: none of the deeds in the Defendants' chain of title contain any reservation or exception. To be sure, each deed references a "private road" on the eastern border of the Slack property. But the deeds do so in describing the boundaries of the property conveyed, which is identified as a tract of real estate in Orange County, North Carolina:

[B]ounded by J.O. Franklin, the old Byrd Farm, now McGhee, and a private road, and being more particularly described as follows:

BEGINNING in the center of said private road near the stable, running thence with said road North 250 feet to a bend in the road; thence North 35 degrees East 100 feet to another bend in the road; thence North 48 degrees East 369 feet to the old Byrd line, now McGhee . . .

Although an easement by reservation or exception need not use the words "reserve" or "except" to be effective, it must at least indicate some intent to withhold a portion of the conveyance. Borders v. Yarbrough , 237 N.C. 540, 542, 75 S.E.2d 541, 543 (1953). These deeds do not do so. The only language concerning this private road is descriptive, explaining the eastern boundary of the property conveyed. Accordingly, the language on which Plaintiffs rely is insufficient to create an express easement by reservation or exception. (Note: a reservation is made in favor the grantor and the Plaintiff cannot claim this right.)

III. Implied Easement by Dedication

Plaintiffs next contend that they possess an implied easement by dedication. "Dedication is a form of transfer whereby an individual grants to the public rights of use in his or her lands." Metcalf v. Black Dog Realty, LLC , 200 N.C. App. 619, 631, 684 S.E.2d 709, 718 (2009). Dedication may be express or implied. Id. "[A]n implied dedication of property for public use requires (1) an offer of dedication, and (2) an acceptance of this offer by a proper public authority." Id. at 639, 684 S.E.2d at 723. "When proving implied dedication, where no actual intent to dedicate is shown, the manifestation of implied intent to dedicate must clearly appear by acts which to a reasonable person would appear inconsistent and irreconcilable with any construction except dedication of the property to public use." Id. at 640, 684 S.E.2d at 723. "Dedication is an exceptional and peculiar mode of passing title to an interest in land" and, thus, "courts will not lightly declare a dedication to public use." Id. at 631, 684 S.E.2d at 718.

Plaintiffs argue that there is an implied easement by dedication based on references to a "private road" or other right of way in "the Defendants' chain of title and those pertinent to other properties "contiguous to" the Defendants' property. But nothing in these recorded instruments indicates that the private parties involved intended to dedicate an easement for public use. Likewise, there is no indication that any public authority expressly or implicitly accepted a dedication. Thus, Plaintiffs have not shown that these recorded instruments are "inconsistent and irreconcilable with any construction except dedication of the property to public use." Id. at 640, 684 S.E.2d at 723. Likewise, although the Slacks later dedicated a five-foot stormwater easement to the public in the path of this purported thirty-foot easement, nothing in that express dedication reflects an implied dedication of a thirty-foot easement for ingress and egress. Indeed, because that stormwater easement accompanied creation of a bioretention basin along the path of this thirty-foot easement, it arguably is inconsistent with dedication of a broader thirty-foot easement at that same location.

We therefore reject Plaintiffs' argument concerning an implied easement by dedication.

IV. Implied Easement by Plat

Plaintiffs next contend that there is an implied easement by plat. "[W]here land is sold in reference to a plat or map, but the dedication of the land has not been formally accepted by the appropriate authority, purchasers of land who buy property relying on the plat still acquire an easement in those right -of-ways." Price v. Walker, 95 N.C. App. 712, 715, 383 S.E.2d 686, 688 (1989). This is so because a "grantor who grants land described with reference to a plat showing a street is equitably estopped" from denying the existence of an easement over that street "to a purchaser." Webster's Real Estate Law in North Carolina § 15.15. Importantly, this type of easement arises only "when the purchaser whose transaction relies on the plat is conveyed the land." Price, 95 N.C. App. at 715, 383 S.E.2d at 688.

Applying this precedent here, Plaintiffs' argument fails. The Slacks and their predecessors-in-interest never granted anything to Plaintiffs. Creation of an implied easement by plat is grounded in principles of estoppel; the easement is created because a grantee purchases property in reliance on a right of way or other easement reflected in the plat at the time of the conveyance. Id.; Webster's Real Estate Law in North Carolina § 15.15. Because the Slacks never conveyed any property to Plaintiffs, the easement by plat theory is inapplicable. Accordingly, we reject this argument as well.

V. Implied Easement by Estoppel

Plaintiffs next claim that they possess an implied easement through the equitable doctrine of estoppel. They argue that the Slacks are estopped from denying the existence of an easement on the eastern border of their property "because the Defendants' conduct in this case renders that assertion contrary to equity." Specifically, they contend that the Slacks acknowledged the easement in permit applications during the construction of the Defendants' home through notations indicating a right of way existed on the eastern portion of the property (although these permitting applications did not identify who, if anyone, was entitled to use that right of way).

They also argue that the Slacks or their predecessors-in-title "remained silent at times they should have spoken," including when Inman repeatedly used the gravel road to access his own home, and when the government plaintiffs publicly discussed plans to build "affordable housing, open space, and possibly a school site" on their property and, in those public discussions, indicated that they would use the right of way across the Defendants' property to access these new developments. Our Supreme Court has held that an easement may arise where one party induces another "innocently and ignorantly" to "expend money or labor in reliance on the existence of such an easement." Delk v. Hill, 89 N.C. App. 83, 87, 365 S.E.2d 218, 221 (1988).

Inman's arguments on this issue are better characterized as claims for a prescriptive easement (on which, as explained below, he prevails) and we address them there. We reject the government plaintiffs' arguments because they have not presented any evidence that they innocently and ignorantly were induced to expend money or labor in reliance on an easement.

To be sure, the government plaintiffs have plans to develop their property. But even if the preliminary work on those future plans could be considered "money or labor" spent on the project, they have not shown—indeed, they do not even argue—that they did so in reliance on an easement across the Defendants' property. The only arguable reference to reliance in the government plaintiffs' brief is in relation to a public hearing in 2007. The government plaintiffs assert that access to their property from the south "was considered, during those 2007 discussions, critical for access to the tract and its future uses, notwithstanding that those uses are still indeterminate."

But the government possesses the power of eminent domain. Thus, indicating that a roadway across a property owner's land will be necessary to a future public project does not in any way suggest that the government is relying on possession of an existing easement.

In any event, as with all estoppel arguments, the government plaintiffs' implied easement by estoppel argument is grounded in "principles of equity" that are "designed to aid the law in the administration of justice when without its intervention injustice would result." Thompson v. Soles, 299 N.C. 484, 486, 263 S.E.2d 599, 602 (1980). But the equities do not weigh in the government plaintiffs' favor nearly as strongly as they contend. For example, the government plaintiffs approved the Defendants' request to build a bioretention basin in the path of the purported easement that is inconsistent with the government's claim that it believed it possessed a right of way across that same stretch of land. And over time the government has been equivocal (at best) in its own assessment of whether it possesses an easement across the Defendants' property, at one point even suggesting in writing that "we have determined that the access easement is a 30-foot-wide [sic] and outside of the Slack's eastern property line." Simply put, even if the government plaintiffs could show that they were "innocently and ignorantly" induced into believing they possessed an easement on the Defendants' property (and they have not), they have not shown that the equities weigh sufficiently in their favor to compel creation of an implied easement where one does not exist in law. Accordingly, we reject the government plaintiffs' implied easement by estoppel arguments.

The government plaintiffs also cite cases (not in the implied easement context) involving the doctrine of quasi-estoppel, which provides that when "one having the right to accept or reject a transaction or instrument takes and retains benefits thereunder, he ratifies it, and cannot avoid its obligation or effect by taking a position inconsistent with it." Redev. Comm'n of City of Greenville v. Hannaford, 29 N.C. App. 1, 4, 222 S.E.2d 752, 754 (1976). But the government has not identified any transaction or instrument that the Slacks chose to accept that indicated the government plaintiffs possessed an easement across their land. The only remotely relevant evidence concerns the permit applications described above, which marked a right of way where the gravel road exists across their property. But as we noted in discussing those permit applications above, they do not indicate that the government plaintiffs had a right to use that right-of-way. Accordingly, quasi-estoppel is inapplicable here.

VI. Easement by Prescription

We thus turn to the final theory in this case—easement by prescription—which only Inman asserts on appeal. To prevail on a prescriptive easement claim, the claimant must establish: "(1) that the use is adverse, hostile, or under claim of right; (2) that the use has been open and notorious such that the true owner had notice of the claim; (3) that the use has been continuous and uninterrupted for a period of at least twenty years; and (4) that there is substantial identity of the easement claimed throughout the twenty-year period." Myers v. Clodfelter, __ N.C. App. __, __, 786 S.E.2d 777, 779–80 (2016).

There is a rebuttable presumption that use of a private road across another landowner's property is permissive, but our courts have long held that this presumption can be rebutted where the claimant shows that she maintained the private roadway, for example by grading or gravelling it, or repeatedly clearing the path to permit travel. Id. at __,786 S.E.2d at 781. These acts indicate a claim of right to use the roadway and thus "manifest and give notice that the use is being made under a claim of right." Id. at __, 786 S.E.2d at 780.

Here, there is uncontested evidence in the record that Inman maintained a private right of way across the eastern portion of the Defendants' property by using a gravel road located there to access his property and by maintaining the gravel road through landscaping, mowing, and laying gravel. The record indicates that Inman's use and maintenance of this gravel road was under claim of right, open and notorious, and continuous and uninterrupted for a period of at least twenty years. Accordingly, the trial court properly entered summary judgment in favor of Inman on his prescriptive easement claim.

But it does not follow from this conclusion that the remainder of the trial court's order with respect to Inman is appropriate. Inman is entitled to use and maintain a right-of-way across the Defendants' property to access his own property. But the trial court's order goes further and permanently enjoins the Slacks from "erecting or placing any fencing or impediment within the thirty (30) most eastern feet of their property" or from "erecting or placing any fencing or impediment on their property that in any way obstructs [Inman's] use of the gravel road in its existing location."

The record indicates that the Slacks, too, use and maintain this gravel road on their property. And they wish to prevent trespassers—those other than Inman—from using that road. The Slacks are entitled to erect a gate or other improvements along that gravel road so long as it does not prevent Inman from "the reasonable use and enjoyment of the easement." Hundley v. Michael, 105 N.C. App. 432, 435, 413 S.E.2d 296, 298 (1992). On appeal, the parties did not address the extent to which a gate or similar improvements to the Defendants' property would impact Inman's use and enjoyment of the easement, and we are unable to answer that question from the record before us.

Similarly, although property owners cannot unilaterally move the location of an express easement whose boundaries are recorded, see A. Perin Dev. Co., LLC v. Ty-Par Realty, Inc., 193 N.C. App. 450, 452–53, 667 S.E.2d 324, 326 (2008), the parties did not address on appeal which portion of the gravel road Inman used and maintained, and thus in which he acquired a prescriptive easement. We therefore cannot adjudicate whether the Slacks, by shifting the gravel road slightly westward and building a fence along their property line, interfered with the reasonable use and enjoyment of the easement that Inman acquired through prescription.

We therefore vacate the trial court's entry of a permanent injunction in favor of Inman and remand this matter to the trial court for further proceedings.

This opinion offers an excellent analysis of several theories of express or implied easements as applied to fairly narrow set of facts. Clearly the mere existence of a private gravel drive does not extend rights to parties that may abut the terminus or adjoin. It is for the reasons discussed herein that title insurers often cannot afford access coverage simply because of a more than sixty-year existence of a road that appears to provide access to a particular property.

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