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Issue  290
Published:  3/1/2023

Abbott v. Abernathy (COA22-162) 2/7/2023
Easement Primer: Standing; Abandonment; Overburdening; Dedication

Chris Burti, Vice President and Senior Legal Counsel

This appeal stems from a trial court's order of summary judgment in favor of the plaintiffs claiming a right of access in a declaratory action to determine the validity of easements providing a subdivision's lot owners access to a public greenway. The unanimous opinion of the North Carolina Court of Appeals affirmed the trial court's order and should prove to be a useful study of several important aspects of easement doctrine in North Carolina.

The parties are residents of a neighborhood development that borders a creek. The recorded plats of the subdivision show four easements burdening certain properties:

...the easements were part of "pedestrian walkway systems" intended to "link the development without the necessity of pedestrian activity along the vehicular roadways" to a "floodway fringe area" - "swampy" land adjacent to the neighborhood. In 2000, the developer offered to sell the "floodway fringe area" to Park Crossing's owners' association, which the association declined.

In 2001, the developer sold the land to Mecklenburg County. Thereafter, the City of Charlotte began to develop the Little Sugar Creek Greenway, which included the floodplain. The Greenway contains paved access points to various neighborhoods along its route.

All lot owners were parties to the case and the Worthingtons are the remaining defendants litigating the issue. They purchased their home subject to "[a]ll enforceable easements, restrictions and conditions of record." One of the four easements depicted in development plats discloses five feet of a ten-foot-wide easement running along the border of their property. The plaintiffs allege that after the City completed the Greenway, subdivision residents used the easements to access it. As pedestrian traffic increased, some owners of the properties burdened by the easements began obstructing access to the Greenway across the pedestrian easements, "including erecting and placing obstructions composed of ropes, fencing, and other material designed to interfere with use of the [pedestrian easements] across their property." "Some also called the police to report that residents were trespassing on their property when the residents used the easements."

On 23 August 2019, a small group of Park Crossing homeowners filed a complaint in Mecklenburg County Superior Court against the Worthingtons and several other owners of Park Crossing development property burdened by the pedestrian easements. The complainants sought, inter alia, a declaratory judgment "in their favor as to the enforceability" of the easements, as well as injunctive relief to prevent the Worthingtons and other defendants "from constructing any further obstacles, traps, obstructions, fences, and the like" restricting access to the easements.

The trial court granted the plaintiffs' motions for summary judgment, concluding that the four pedestrian easements were valid and existed for the benefit of each resident of the development by the time the summary judgment motions came on for hearing the plaintiffs had "reached settlements with everybody except the Defendants Worthington." The Worthingtons contended: that the easement burdening their property terminated as a matter of law once Mecklenburg County purchased the land to which it leads, as it "has now become a public way" without their consent; that the plaintiffs lacked standing to bring this action; that the Easement was abandoned; And that the plaintiffs' use of the Easement constituted overburdening. Plaintiffs contended that the Easement was valid, not abandoned, and for the benefit of all Park Crossing residents. The trial court found that "[t]he express language and clear depictions in the Park Crossing maps and plats . . . recorded by the [d]eveloper dedicate the [pedestrian easements] as appurtenant easements to and for the benefit of each resident of Park Crossing." The court ordered that the Worthingtons remove any obstructions to the Easement and refrain from restricting residents' access to the Easement in the future and the Worthingtons timely appealed the trial court's order.

The procedural history of the case is not essential to an understanding of this opinion as it pertains to real property law and practice, therefore we will omit most of it from our discussion. There is an extensive discussion and application of the Rules of Appellate Practice and interpretive case law that will be of interest to appellate practitioners. The defendants contended that:

...the trial court erred by granting Plaintiffs' motion for summary judgment because (1) Plaintiffs lacked standing to enforce the Easement; (2) Plaintiffs abandoned the Easement; (3) Plaintiffs' proposed use of the Easement constitutes overburdening and misuse; (4) the Worthingtons have not dedicated their lands for public use; (5) the doctrine of laches barred Plaintiffs' action; (6) adverse possession and the statute of limitations barred Plaintiffs' claims; (7) the Marketable Title Act extinguished Plaintiffs' claims; (8) the grant of the Easement was void because it lacked a description of the dominant estate; (9) the material issue of the physical location of the Easement precluded summary judgment; and (10) Plaintiffs' proposals are inconsistent with the grantor's intent.

However, after extensive analysis, the Opinion concluded that the defendants failed to preserve several of these arguments for appellate review. The Court determined that the defendants' surviving preserved arguments were that:

(1) Plaintiffs lacked standing to bring this action,
(2) Plaintiffs abandoned the Easement,
(3) Plaintiffs' desired use of the Easement constitutes overburdening and misuse, and
(4) Defendants have not dedicated their lands for public use.

(1) Plaintiffs' Standing
The defendants contended that the plaintiffs lacked standing in this action because they didn't own any land adjoining the easements at issue and therefor no interest in any parcel containing any of the easements at issue nor any interest in the floodplain lands adjoining the development, to which the Easement leads. The Court of Appeals disagreed and citing well established easement doctrine stated:

"An appurtenant easement is an easement created for the purpose of benefitting particular land. This easement attaches to, passes with and is an incident of ownership of the particular land." Nelms v. Davis, 179 N.C. App. 206, 209, 632 S.E.2d 823, 825-26 (2006) (citations and internal quotation marks omitted). Our Supreme Court has explained that lot owners have certain rights to streets, parks, and playgrounds as appurtenant easements in the subdivision where they reside:

Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use, and this right is not subject to revocation except by agreement. It is said that such streets, parks and playgrounds are dedicated to the use of lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. It is a right in the nature of an easement appurtenant. Whether it be called an easement or a dedication, the right of the lot owners to the use of the streets, parks and playgrounds may not be extinguished, altered or diminished except by agreement or estoppel. This is true because the existence of the right was an inducement to and a part of the consideration for the purchase of the lots. Cleveland Realty Co. v. Hobbs, 261 N.C. 414, 421, 135 S.E.2d 30, 35-36 (1964) (citations omitted) (second and third emphases added); see also Connolly v. Robertson, 151 N.C. App. 613, 616-17, 567 S.E.2d 193, 196-97 (2002).

Here, because the Easement at issue is an appurtenant easement, Plaintiffs had standing to bring this action to enforce their rights to use it. The developer of Park Crossing dedicated the Easement as part of a network of paths designed to "link the development without the necessity of pedestrian activity along the vehicular roadways." As such, the Easement was "dedicated to the use of lot owners in the development[,]" creating "a right in the nature of an easement appurtenant" for all who live there. Hobbs, 261 N.C. at 421, 135 S.E.2d at 36 (emphasis omitted).

Moreover, as our Supreme Court established in Hobbs, the right of the lot owners to the use of appurtenant easements within a community "may not be extinguished, altered or diminished except by agreement or estoppel." Id. No such agreement exists here; in fact, the Declaration of Covenants, Conditions, and Restrictions for Park Crossing expressly provides that "[t]he Association, or any Owner, shall have the right to enforce . . . all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration." (Emphasis added).

In that the Park Crossing developer dedicated the Easement for the use of lot owners as part of a larger footpath network throughout the neighborhood, Plaintiffs had standing to enforce their rights to the use of the Easement as an appurtenant easement. See id. The Worthingtons' argument accordingly fails.

(2). Abandonment of Easement
The defendants further contended that the plaintiffs long abandoned any rights they may have had in the easements. They asserted that:

"Plaintiffs showed a clear intention to abandon and terminate the easements" by seeking to convert them "into vehicles of ingress and egress for users of the public greenway[,]" which the Worthingtons contend "pervert[ed] the original nature and purpose of the easements."

In deeming that this contention lacked merit the Court of Appeals set out a clear and reasonably concise analysis of the doctrine of easement abandonment which we feel is useful enough to include in full:

"An easement may be abandoned by unequivocable acts showing a clear intention to abandon and terminate the right . . . ." Combs v. Brickhouse, 201 N.C. 366, 369, 160 S.E. 355, 356 (1931). "The essential acts of abandonment are the intent to abandon and the unequivocal external act by the owner of the dominant tenement by which the intention is carried to effect." Skvarla v. Park, 62 N.C. App. 482, 487, 303 S.E.2d 354, 357 (1983). "Mere lapse of time in asserting one's claim to an easement, unaccompanied by acts and conduct inconsistent with one's rights, does not constitute waiver or abandonment of the easement." Id. (concluding that the plaintiffs did not abandon an easement after 70 years of nonuse because there was "no evidence of any external unequivocal act by [the] plaintiffs, or their predecessors in title, indicating an intent to abandon the easement").

In the present case, the Worthingtons contend that because the Park Crossing owners' association declined to purchase the floodplain from the developer, "[t]he community abandoned the plan, the land, and the [four] easements." A review of the record, however, belies this contention. Assuming, arguendo, that the association's refusal evinced an intention to abandon the Easement, the Worthingtons nevertheless must present evidence of Plaintiffs' "unequivocal external act" in furtherance of this intention, id., which they have failed to do. In that "[m]ere lapse of time in asserting one's claim to an easement, unaccompanied by acts and conduct inconsistent with one's rights, does not constitute waiver or abandonment of the easement[,]" id., the Worthingtons failed to "forecast sufficient evidence to show the existence of a genuine issue of material fact in order to preclude an award of summary judgment[,]" Badin Shores, 257 N.C. App. at 550, 811 S.E.2d at 204 (citation omitted).

(3). Overburdening and Misuse of Easement
The defendants' contention that the proposed use of the Easement constitutes overburdening and misuse, because it "allows for access to other properties not included in the [E]asement and allows for usage of a kind not contemplated in the grants..." likewise proved unconvincing to the Court which opined:

"If an easement is granted, the user of the easement may neither change the easement's purpose nor expand the easement's dimensions." Bunn Lake Prop. Owner's Ass'n v. Setzer, 149 N.C. App. 289, 296, 560 S.E.2d 576, 581 (2002); see also, e.g., Moore v. Leveris, 128 N.C. App. 276, 281, 495 S.E.2d 153, 156 (1998) (concluding that an easement to use a public neighborhood road did not allow the defendant to place a sewer line under the road); Swaim v. Simpson, 120 N.C. App. 863, 864-65, 463 S.E.2d 785, 787 (1995) (concluding that the installation of utility pipes on an easement went beyond the easement's intended use of ingress and egress), aff'd per curiam, 343 N.C. 298, 469 S.E.2d 553 (1996).

To determine whether a particular act constitutes overburdening or misuse of an easement, this Court applies the following rules:

First, the scope of an express easement is controlled by the terms of the conveyance if the conveyance is precise as to this issue. Second, if the conveyance speaks to the scope of the easement in less than precise terms (i.e., it is ambiguous), the scope may be determined by reference to the attendant circumstances, the situation of the parties, and by the acts of the parties in the use of the easement immediately following the grant. Third, if the conveyance is silent as to the scope of the easement, extrinsic evidence is inadmissible as to the scope or extent of the easement. However, in this latter situation, a reasonable use is implied. City of Charlotte v. BMJ of Charlotte, LLC, 196 N.C. App. 1, 17, 675 S.E.2d 59, 69 (2009) (citation omitted), disc. review denied, 363 N.C. 800, 690 S.E.2d 533 (2010).

In the case at bar, the plats detailing the Easement label it as a ten-foot-wide pedestrian easement that runs southwest along the property line of the Worthington's property, following the property line to the end of the lot. As the trial court determined, "[t]he express language and clear depictions in the Park Crossing maps and plats . . . recorded by the [d]eveloper" demonstrate a dedication of the Easement to and for the benefit of each resident of Park Crossing as a pedestrian path. In their amended complaint, Plaintiffs requested a declaratory judgment to establish their right "to access, use, and enjoy the [Easement], including for the purpose of accessing the Little Sugar Creek Greenway[.]" Unlike the challenged use in Swaim, Plaintiffs' proposed use of the Easement stays within its original intended scope of pedestrian ingress and egress; the fact that the Easement now leads to a developed Greenway, rather than merely an undeveloped floodplain, is immaterial, as it does not change the purpose for which Plaintiffs seek to use the Easement. See Swaim, 120 N.C. App. at 864-65, 463 S.E.2d at 787.

Plaintiffs' proposed use of the Easement as a footpath for Park Crossing residents to access the Greenway falls squarely within the Easement's scope as a pedestrian walkway, and the Worthingtons failed to meet their burden "to produce a forecast of evidence demonstrating that [they] will be able to make out at least a prima facie case at trial" concerning overburdening and misuse of the Easement. Cummings, 379 N.C. at 358, 866 S.E.2d at 684-85 (citation and internal quotation marks omitted).

(4). Dedication of Land for Public Use
The defendants also argued unconvincingly that "Plaintiffs are forcing a public dedication of [the Worthingtons'] land, over [the Worthingtons'] objections and despite the lack of any dedication or developer-grantor intention that the [E]asement be open to the public." The Worthingtons further maintain that "[b]ecause an offer of public dedication must be shown by "clear and unmistakable" intent, and no such unambiguous intention is present on the face of the plat," the trial court erred in entering summary judgment in favor of Plaintiffs. The opinion, with appropriate citation to the doctrine of public dedication, simply points out that the plaintiffs made no assertion of public dedication, that the easement was not dedicated to the public with or without the defendants' consent and therefore, the trial court did not err in granting summary judgment on this claim in favor of the plaintiffs. While we will omit a discussion of this portion of the opinion for brevity, it provides a useful analyses of dedication doctrine.

It can be fairly said that on both a cultural and a visceral level our society believes that everyone has a right of access to their land. Real property practitioners know that this belief is not true in every instance. Cases such as this emphasize that unless it is clear with certainty that access has been intentionally cut off or clearly never created in the first place, our courts will favor a construction that provides access that is reasonable to all parties.

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