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Issue  31  Article  73
Published:  2/1/1998

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Recent Real Property Decisions
Chris Burti, Vice President and Legal Counsel

Implied Dedication

Dept. Of Transportation v. Haggerty 492 S.E.2d 770 (N.C.App. 1997) presents the issue of implied dedication and may have a significant impact upon the process of title examination. After 1929 the State Highway Commission claimed a 60-foot right of way on all state highways. After 1938 this was increased to 100 feet by regulation. Wendover Avenue is a state road maintained since 1930 and paved in the late 1940s. At about the time it was paved, the state placed concrete right of way markers 50 feet from the centerline marking the claimed right of way. The defendant’s deeds and instruments of conveyance in their chain of title referenced unrecorded surveys indicating a right of way 50 feet from center. Additionally, defendants permitted utilities and utility poles to be installed within 50 feet of the centerline but outside of 30 feet from the centerline. Defendants paid no ad valorem taxes on the disputed strip nor were they listed in the county tax office.

The court distinguished the provisions of N.C.G.S. 136-96 and N.C.G.S. 136-102.6 from the common law as follows: "‘Generally, where lots are sold and conveyed by reference to a plat which represents the division of a tract into streets and lots, recordation of the plat is an offer to dedicate those streets to the public.’ Tower Development Partners v. Zell, 120 N.C.App. 136, 141, 461 S.E.2d 17, 20 (1995). However, under common law dedication, subjective intent to make a dedication and recording of the plat is unnecessary. Tise v. Whitaker-Harvey Co., 146 N.C. 374, 376, 59 S.E. 1012, 1013 (1907). An implied dedication can arise out of the acts of the owner. Id. At 376, 59 S.E. 1012. ‘A map or plat referred to in a deed becomes part of the deed and need not be registered.’ Kaperonis v. North Carolina State Highway Commission, 260 N.C. 587, 597, 133 S.E.2d 464, 471 (1963) (quoting Collins v. Asheville Land Co., 128 N.C. 563, 565, 39 S.E. 21, 22 (1901). 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."

It is easy to understand the outcome of this case if one considers the strong fact situation presented. In this case it appears that the plat was available to the court and was probably available to the property owners had they exercised due diligence. Therefore, combined with the occupation of the easement, the case would seem to have achieved the correct outcome. However, most title examiners have discovered countless instruments in the records that make reference to unrecorded plats.

One of the major problems with unrecorded plats is that all too often they are also unrecoverable. Under this case it appears that whenever a surveyor prepares a plat that depicts any potential easements and that survey is referenced in a conveyance, it becomes an offer of dedication. Hypothetically, if a path is shown crossing a parcel of land and the adjoining owners (and/or others) have been using it, it could be construed as an acceptance thereby converting what may have been a permissive use into an actual easement. If this is true, how does one withdraw the dedication if acceptance has not in fact occurred, who is the proper party to withdraw the dedication, to what extent must a title examiner go to uncover unrecorded surveys and what facts, at a minimum, would constitute acceptance? Unfortunately this opinion does not give any guidance in answering these questions. It appears that it may be prudent for title examiners to attempt to obtain all surveys referenced in conveyances if they are not in the public records.

Determinable Easements

Howell v. Clyde, 493 S.E.2d. 323 (N.C.App. 1997) is worthy of note, if it stands, in that it holds that recordation of the termination of a determinable easement is not required to be effective against the purchaser of the grantee of the easement. The 1969 grant of easement contained provisions requiring that certain legally binding restrictions be placed on the dominant estate and if the provisions were violated, the instrument would be void, and the grantors would have the right to re-enter and take possession of the easement. Plaintiff and defendants were successors in interest by mesne conveyances to the original parties to the agreement. Plaintiff’s predecessors in title violated the restrictions. Defendants then notified them that the easement was terminated and thereafter placed and locked gates at each end of the easement. Plaintiff purchased the property and recorded his deed without recording a termination. Plaintiff filed a declaratory judgment action seeking to open the easement and defendant appealed summary judgment in plaintiff’s favor based upon the court’s determination that N.C.G.S. 47-18 (1984) protected a bona fide purchaser for value from oral termination of the easement.

The Court of Appeals’ opinion discussed that the difference between a determinable interest and one subject to a condition subsequent is that the former reverts automatically, but with the latter one must re-enter after breach of the condition in order to terminate the interest. The court then ruled that this case presented a determinable estate citing Price v. Bunn, 13 N.C.App. 652, 187 S.E.2d 423 (1972). It further observed that since the lower court ruled in favor of the plaintiff based on defendant’s having failed to record the termination, the case should be remanded since recording was unnecessary for either estate, citing Price and Higdon v. Davis, 315 N.C. 208, 337 S.E.2d 543 (1985).

PRACTICE TIP: If you find a determinable interest in your chain of title, an estoppel letter from the owners of the servient estate will assure your clients that the estate has not terminated or that access remains open, as in this case. In order to insure a lender without taking exception to the reverter, at a minimum, a subordination of the interest will be needed.

Violation of Restrictive Covenants

Agnoff Family Revocable Trust v. Landfall Associates, 493 S.E.2d 308 (N.C.App. 1997) presents a substance over form decision on violation of restrictive covenants. The restriction in question prohibited docks or piers from being "connected to" any lot unless expressly permitted in the deed. Plaintiff sought a declaratory judgment to determine if a pier placed one foot off the property violated the restriction.

Citing dictionary definitions, the court determined that "connected to" means "in close proximity to" and that plaintiff would have no right to place the pier but for littoral rights associated with ownership of waterfront property. Therefore, the Court of Appeals affirmed the judgment of the trial court in favor of the defendant.

When confronted with a violation problem, many practitioners are fond of referring to the well-established doctrine that restrictions are not looked upon favorably by the law and are therefore construed narrowly. This case stands for the corollary doctrine: "‘Provided that a restrictive covenant does not offend articulated considerations of public policy or concepts of substantive law, such provisions are legitimate tools which may be utilized by developers and other interested parties to guide the subsequent usage of the property.’ J.T. Hobby & Son v. Family Homes, 302 N.C. 64 71, 274 S.E.2d 174, 179 (1981). In construing the language used in restrictive covenants, ‘each part ... must be given effect according to the natural meaning of words.’ Id." Agnoff Family Revocable Trust v. Landfall Associates, 493 S.E.2d 308 (N.C.App. 1997)


In Wooten v. Town of Topsail Beach, 493 S.E.2d 285 (N.C.App. 1997) the defendant town planned to construct a park on land dedicated as a street. A map was recorded in 1950 that showed a sixty-foot street at the site in issue. The town accepted the street and paved all but the westernmost one hundred and twenty feet of it. The unpaved portion has been used by the public for parking and access to the water. The town Board directed the town manager to construct a park on the unpaved portion, and the plaintiff sought an injunction to prohibit such action.

The trial court entered summary judgment for the plaintiff and enjoined the town from constructing the park unless and until the town complied with N.C.G.S. 160A-299 (1987) and other applicable statutes for the closing of streets.

The Court of Appeals ruled that "[i]f property is dedicated for a particular purpose, it cannot be diverted from that purpose by the state or municipality, except under the power of eminent domain." Since the land had been dedicated as a street, it could not be used by the town as a park. Further, since the definition of a street subsumes its use for the purposes of vehicular traffic, blocking such traffic by construction of a park is inconsistent with the dedication. This constitutes a prohibited misuse or diversion under the holding in March v. Town of Kill Devil Hills, 125 N.C.App. 151, 154, 479 S.E.2d 252, 253, (1997) cited by the court.

The Court of Appeals affirmed summary judgment but remanded the case to the trial court to modify the portion of the order pertaining to the closing of the street. The Court of Appeals observed that closing the street would put title to the closed portion of the street in the adjoining landowners and still give the town no authority to construct the park without condemnation.

Implied Easements

Tedder v. Alford, 493 S.E.2d 487( N.C.App. 1997) does not appear to break new legal ground but should be of interest to practitioners due to its clear exegesis of easement by implication and easement by necessity.

The court sets forth the elements of proof necessary to establish an easement by implication as follows:

"(1) there was 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 this use was apparent, continuous and permanent; and

(3) the claimed easement is ‘necessary’ to the use and enjoyment of the claimants land." Citing Curd v. Winecoff, 88 N.C.App. 318, 346 S.E.2d 205, cert. Denied, 318 N.C. 417, 349 S.E.2d 599 (1984). " Once these elements are established, ‘[a]n ‘easement from prior use’ may be implied to ‘protect the probable expectations of the grantor and grantee that an existing use of part of the land would continue after the transfer.’" Id. Tedder supra.

The court then set forth the elements of an easement by necessity, which is an easement implied by law under certain circumstances. Easements by necessity are most commonly implied in favor of grantees who have no access to their land except over other lands owned by the grantor or a stranger; the law will imply an easement over the grantor's land in such a situation. "To establish the right to use a way of necessity it is not required, however, to show absolute necessity. It is sufficient that he show such physical conditions and uses as would reasonably lead one to believe that the grantor intended him to have a right of access at the time of the conveyance." Id. Tedder supra.

The significant difference is that with easements by implication, a quasi easement is created by the use of the servient part of the property for the benefit of the dominant portion by the grantor prior to severance. Although the court arrived at the correct conclusion, it misapplied the doctrine to the facts of the case, observing that the grantees had not made use of any easement prior to severance. In the instant case the grantees added on to the building on their property which resulted in an inability to continue to turn trucks around without going on to the grantors property, then claimed an implied easement to do so. The actions of the grantee after the severance gave rise to the need, not the grantor’s severing the tract.

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