Hanner v. Duke Power Co.

239 S.E.2d 594 (1977)

34 N.C. App. 737

S. E. HANNER and wife, Erma P. Hanner v. DUKE POWER COMPANY.

No. 7721SC130.

Court of Appeals of North Carolina.

December 21, 1977.

*595 Henry C. Frenck, Winston Salem, for the plaintiff appellants.

Womble, Carlyle, Sandridge & Rice, by W. P. Sandridge, Jr., Winston Salem, for defendant appellee.

ARNOLD, Judge.

The sole question presented by

plaintiff on this appeal is whether there is a genuine issue of material fact which will preclude summary judgment in favor of defendant. See G.S. 1A-1, Rule 56. Plaintiffs specifically argue that the contract of easement is an ambiguous contract which may be made certain by extrinsic evidence and which must be interpreted by a jury under proper instructions of the law. While plaintiffs' statement of the law regarding ambiguous contracts is correct, Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962), we do not find that the contract of easement in the present case is ambiguous.

Plaintiffs' argument that the word "crops" as used within the contract is ambiguous is clearly without merit. The contract specifically gave defendant the right to clear trees from the right-of-way, and plaintiffs' right to grow "crops" was specifically limited by this provision. By the terms of the contract, defendant did not, by agreeing at various times to allow trees to remain, waive its right as stated in the contract.

Defendant did not deny any fact set forth by plaintiffs. There being no ambiguity in the written contract, and, consequently, no genuine issue of material fact, the rights of the parties became a question of law and summary judgment in favor of defendant was properly granted.

Affirmed.

MORRIS and HEDRICK, JJ., concur.