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Issue  275  Article  429
Published:  10/1/2021

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Gribble v. Bostian (COA 20-412) 8/17/2021
Acquiescence Sufficient to Locate Appurtenant Easement

Chris Burti, Vice President and Senior Legal Counsel

The parties to this appeal own adjoining tracts of land illustrated on the sketch map below. The plaintiff owns the tract labeled as Tract 1 abutting the public road and the defendants own Tract 2 which does not abut any road. In this case the Court of Appeals determined and located the defendants' easement rights to access the public road over plaintiff's tract. The opinion recites the following:

The background contained herein reflects the findings as made by the trial judge.


Prior to 1991, the tracts below labeled as Tract 1, Tract 2, and the Cromer Tract were all part of a single tract owned by Plaintiff's father, Glenn Smith. The tract labeled as the "Bostian Family Land" was owned by various members of the family of Defendant Charles D. Bostian. By 1991, Mr. Bostian took title to a portion of the Bostian Family Land adjacent to Tract 2.

The "dirt path" as depicted on the map running through Tract 1 identifies the approximate location of a dirt path that Mr. Smith used for decades to access the rear portion (the area labeled "Tract 2") of his property.

In 1991, Mr. Smith conveyed to Mr. Bostian by deed (the "1991 Deed") the rear portion of his large tract, specifically the area labeled as Tract 2. The 1991 Deed also contained language granting Mr. Bostian an easement across Mr. Smith's remaining land (labeled as Tract 1) at a location to be agreed upon by Mr. Bostian and Mr. Smith, as follows:

Together with a right-of-way thirty (30) feet in width running from Deal Road to this property, the exact location of said right-of-way to be agreed upon between the parties or their successors and assigns.

Over the next fourteen years, between 1991 and 2005, Mr. Smith and Mr. Bostian never agreed in writing where the easement referenced in the 1991 Deed would be located. The trial court did not make any findings as to whether Mr. Smith and Mr. Bostian expressly orally agreed as to the easement location. (The evidence was conflicting as to whether they had orally agreed that the dirt path would serve as the easement.) In any event, Mr. Bostian began and continued to utilize the dirt path to access Tract 2 from Deal Road. Mr. Smith acquiesced to Mr. Bostian's use of the dirt path, never complaining or objecting. There is no evidence that Defendants ever used any other portion of Tract 1 as an easement to access Tract 2. Further, there was no evidence offered by either party that the easement was at a location on Tract 1 other than along the dirt path.

In 2005, Mr. Smith died. Plaintiff inherited Tract 1, the tract where the dirt path is located, from her father Mr. Smith. Plaintiff desired to sell Tract 1 but learned that potential buyers were deterred by the existence of a dirt path running through the middle of that tract. One day after her father's funeral, Plaintiff placed posts to block the dirt path. These posts were quickly removed after Defendants complained, claiming to have easement rights in the dirt path.

At some later point, Defendants' daughter-in-law, who is not a party to this appeal, came to own a portion of Tract 2, specifically the area on Tract 2 labeled with the slanting lines.

In 2018, Plaintiff commenced this matter to resolve the easement dispute. Following a bench trial, the trial court entered its Amended Order, determining that Plaintiff's Tract 1 is burdened by an appurtenant easement in favor of Tract 2. However, the trial court did not determine that the easement was located along the existing dirt path. Rather, the trial court determined that the location of the easement would be along Tract 1's boundary with the Cromer Tract, in the area labeled by the x's ("xxxxx") on the above map, notwithstanding that no party ever advocated for this location nor was there any evidence that Defendants or anyone ever used this location to access Tract 1. Plaintiff and Defendants each noticed an appeal.

The Court of Appeals concluded that the trial court was correct in determining that the defendants have easement rights across the plaintiff's tract to access the public road but disagreed with the trial court's determination of the location of the easement along the edge of Tract 1. The Court of Appeals concluded that the trial court's findings only supported a location of the easement along the dirt path and, accordingly, modified the judgment.

The opinion recognizes that North Carolina courts have consistently taken a "lenient approach" in recognizing express easements when the grant does not explicitly state the easement's precise location on the servient estate. The Court's analysis is concise and worth repeating.

Our Supreme Court has long held that the Statute of Frauds is satisfied so long as the dominant and servient estates are identified and the nature of the easement is sufficiently described in the writing:

No particular words are necessary to constitute a grant, and any words which clearly show the intention to give an easement, which is by law grantable, are sufficient to effect that purpose, provided the language is certain and definite in its terms[.]

The instrument should describe with reasonable certainty the easement created and the dominant and servient tenements.
Hensley v. Ramsey, 283 N.C. 714, 730, 199 S.E.2d 1, 10 (1973) (citation omitted).

That Court has held that where the location of the easement itself is not expressed in the grant, its location is established when the owner of the dominant estate makes reasonable use of a portion of the servient estate for ingress and egress, and this use is acquiesced to by the owner of the servient estate:

It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and use of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant.
Borders v. Yarbrough, 237 N.C. 540, 542, 75 S.E.2d 541, 543 (1953). This holding was reaffirmed by that Court in Builders Supplies Co. v. Gainey, 282 N.C. 261, 269-70, 192 S.E.2d 449, 455 (1972).

Our Supreme Court later held that the subsequent owner of the servient tract (such as Plaintiff in the present case) is bound as to the location of the easement where that location was acquiesced to by her predecessor in title (Plaintiff's father in this case) who created the easement:

The use of roads in question by [the owners of the dominant estate], acquiesced in by [the] predecessors in title of the servient estate, sufficiently locates the roads on the ground, which is deemed to be that which was intended by the reservation of the easements.
Allen v. Duvall, 311 N.C. 245, 251, 316 S.E.2d 267, 271 (1984) (citing >Borders, 237 N.C. at 542, 75 S.E.2d at 543.).

The trial court's finding of facts as to the existence of the easement was found to be "amply supported" by the evidence and were set out in the opinion in detail. There was an express grant of a thirty-foot access easement with the location to be determined later by agreement and though the parties never entered into a written agreement regarding the easement's location, the defendant continuously used the easement until Mr. Smith's death, the use of which Mr. Smith acquiesced. The cited Supreme Court precedent led the Court of Appeals to conclude that "the findings of the trial court compel a judgment that the dirt path located on Tract 1 constitutes an appurtenant easement for the benefit of Tract 2."

The opinion also deals with the question of overburdening the easement by its use to serve the "Bostian Family Land" tract shown on the above map. Although the defendant also owns part of this tract that is adjacent to his Tract 2, the easement only grants the right to access Tract 2 alone as the opinion states: "the grant did not create easement rights to access any other land, including the Bostian Family Land." Citing the North Carolina Supreme Court, the Court of Appeals states:

One having a right of way appurtenant to certain land cannot use it for the benefit of other land to which the right is not attached, [even if] such land is within the same inclosure with that to which the easement belongs[.]
* * *
The way is granted for the benefit of the particular land, and its use is limited to such land. Its use cannot be extended to other land . . . without the consent of the owner of the servient estate. Wood v. Woodley, 160 N.C. 17, 19-20, 75 S.E. 719, 720 (1912); see Hales v. R.R., 172 N.C. 104, 107, 90 S.E. 11, 12 (1916) ("[A]n easement of right of way over another's property is appurtenant to the particular piece of ground of the dominant owner with which it is granted, and is not personal to the owner, [and he is not] authoriz[ed] to use it in connection with other real estate he may own abutting the right of way."); >see also Meyers v. Reaves, 193 N.C. 172, 178, 136 S.E. 561, 564 (1927) ("One having a right of way appurtenant to certain land cannot use it for the benefit of other land to which the right is not attached[.]").

The Court concluded that it would affirm the portion of the trial court's order determining that that the defendants have appurtenant easement rights across the plaintiff's tract to access the tract acquired from Mr. Smith in 1991, that it would modify the portion of the trial court's order locating the easement along the edge of Tract 1 following its boundary with the Cromer Tract, declaring that the easement location is a thirty-foot wide path that includes the dirt path "a use that was acquiesced to by Mr. Smith."

The lesson this well analyzed Court of Appeals opinion delivers to real property practitioners is that as the Court here so aptly stated that North Carolina courts have consistently taken a "lenient approach" in recognizing express easements and as our Supreme Court has consistently held that the courts will not void a grant for technical errors where the intent is clear. Here it can be said that the intent was made clear by the actions and acquiescence of the parties.

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