Flowers v. Williams

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-535 NORTH CAROLINA COURT OF APPEALS Filed: 17 December 2013 TINA L. FLOWERS, Plaintiff, v. Buncombe County No. 11 CVS 4263 LATONYA B. WILLIAMS, Defendant. Appeal by defendant from judgment entered 12 October 2012 by Judge Marvin P. Pope, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 24 September 2013. Ferikes & Bleynat, plaintiff-appellee. PLLC, by Joseph A. Ferikes, for William E. Loose, for defendant-appellant. McCULLOUGH, Judge. Defendant declaratory concluding property. Latonya judgment that in B. Williams favor plaintiff has entered or of plaintiff an easement the Tina entry L. across of Flowers, defendant s For the reasons set forth below, we affirm. I. On appeals about into a September written Background 2006, Offer to plaintiff Purchase Tina real L. Flowers property as -2described in Book 1492, Page 226, Buncombe County Registry (hereinafter subject property ), which was then owned by Rowena B. Goodson and Pauline E. Brinkley. subject property, plaintiff hired Prior to purchasing the Peterson Engineering and Surveying ( Peterson ) to survey the subject property, divide it into three separate parcels, and record a plat showing the subdivision. On 5 September 2006, a plat was recorded in Book 121, Page 63, of plat ). the Buncombe County Register of Deeds office ( the The plat subdivided the subject property into three separate lots and provided access to all three lots by way of a Proposed 12 Private Drive & Utility Easement. The plat was approved as a Special Subdivision by the Zoning Administrator for Buncombe County. On 21 September 2006, plaintiff was conveyed the subject property by three separate deeds one for each lot. Plaintiff also recorded a Road Maintenance Agreement which stated that the plat showed a common drive to all three lots and THEREFORE, in consideration of ONE DOLLAR and other valuable considerations, [plaintiff] their heirs and assigns wish to give a Right of Way for ingress and utilities, and to enter into a Road Maintenance Agreement for the portion of the common drive that they use. -3On 23 June 2009, plaintiff deeded Lot #2 to CMH Homes, Inc. CMH Homes, Inc., then deeded Lot #2 to defendant Latonya B. Williams on 29 September 2009. Both conveyances were by warranty deed and the only description of the property, Lot #2, was by reference to the plat. Defendant s deed also contained language that Title to the property . . . is subject to the following exceptions: Subject to easements, restrictions and rights of way of record[.] On 17 Declaratory August 2011, Judgment and against defendant. plaintiff Temporary filed and a complaint Permanent for Injunction The complaint alleged that the only access to Candler Knob Road and only means of ingress and egress to her property, Lot #3, was by way of an existing easement. easement led from Candler Knob Road, through the The Owens, Brinkley, and Flowers property, and then through defendant s property to plaintiff s property. Plaintiff further alleged that in 2010, plaintiff attempted to use the easement when she encountered a gate and a shed across the easement, preventing access to plaintiff her did property. not have Defendant a right to advised cross plaintiff the property for access to the Plaintiff s property. that Defendant s Plaintiff argued that she was entitled to a declaration of her rights to -4use the easement and an order enjoining the defendant from interfering with said rights. Plaintiff also requested that the trial permanently court temporarily and enjoin and restrain defendant from interfering with plaintiff s use of the easement. Defendant filed an Answer, Affirmative Defenses, Counterclaim on 30 September 2011. Following a hearing held on 9 October 2012, the trial court entered judgment on 12 October 2012. The trial court made the following findings of fact: 1. On or about September, 2006, Plaintiff entered into a written Offer to Purchase [the subject property] consisting of approximately 2.089 acres and which was then owned by Rowena B. Goodson and Pauline E. Brinkley[.] 2. Prior to the purchase, the Plaintiff hired Peterson Engineering and Surveying ( Peterson ) to survey the property and to subdivide the property into three (3) separate lots. Peterson did subdivide the property into three (3) separate lots and prepared a plat of the property, (hereinafter, the plat ). 3. The plat described herein was submitted to the Zoning Administrator for Buncombe County, North Carolina and approved as a special subdivision. The plat showed a proposed 12 private drive and utility easement accessing all three (3) lots. The Buncombe County Review Officer certified that the plat met all statutory requirements for recording. -54. Thereafter, the plat was recorded[.] 5. The plat was approved as a Special Subdivision by the Zoning Administrator of Buncombe County, North Carolina and the notation upon the subject plat is that the access is considered a private drive. 6. The proposed 12-foot private drive and utility easement as shown on the plat extends from the Owen Hollow Road along the entire southern portion of Lot #1 to Lot #2 and thereafter continues along the western portion of Lot #2 to Lot #3. 7. The Plaintiff acquired title to property by virtue of three (3) deeds[.] the . . . The property descriptions contained in each deed made reference to the plat and each stated that the real property described in the Deed is subject to easements, restrictions and rights of way of record. 8. Thereafter, the Plaintiff conveyed Lot #2 as shown on the plat to CMH Homes, Inc. This Deed was recorded . . . and also contains the notation that the real property described in the Deed is subject to easements, restrictions and rights of way of record . 9. Thereafter, CMH Homes, Inc. conveyed Lot #2 as shown on the plat to the Defendant. This Deed was recorded . . . and also contains . . . the notation that the real property described in the Deed is subject to easements, restrictions and rights of way . 10. The Court specifically finds that the words proposed 12-foot private drive and -6utility easement as shown on the plat is in fact a right of way and easement of record for access and utility purposes (hereinafter, right of way or easement ), and that Lot #2 of the plat and it s owner and all future owners, their heirs, successors and assigns, are subject to said easement for the benefit of Lot #3 of Plat Book 121, Page 63, Buncombe County Registry. 11. The Court further finds that the Defendant has placed certain obstructions within the 12 easement located on Lot #2 including a wooden picket fence and a wooden shed which would prevent the Plaintiff and/or any future owners of Lot #3 from accessing Lot #3, and which would need to be removed to allow the Plaintiff full and complete access to Lot #3. Based on the foregoing findings of fact, the trial court concluded that plaintiff was entitled to declaratory judgment declaring the full and unrestricted right of way, easement and access for purposes of ingress, egress, and regress to and from Owen Hollow Road and installation and maintenance of utilities benefitting Lot #3 over and across Lot #2 as shown on the plat[.] The trial court ordered that The Plaintiff, her heirs, successors and assigns, as owner(s) of Lot #3 . . . has a full and unrestricted 12 foot right of way and easement for the purposes of ingress, egress, and regress to and from Owen Hollow Road and for installation and maintenance of utilities over and across Lot #2 . . . . This right of way and easement shall run with and be appurtenant to Lot #3 of the plat. -7Within ninety days, defendant was ordered to remove all obstructions located on Lot #2 which would prevent unrestricted vehicular and utility access over and across said 12 right of way. Defendant appeals. II. The standard of Standard of Review review in declaratory judgment actions where the trial court decides questions of fact is whether the trial court s findings are supported by any competent evidence. Where the findings trial court s are findings supported of fact by are competent evidence, conclusive on the appeal. Danny s Towing 2, Inc. v. N.C. Dep t of Crime Control & Pub. Safety, 213 N.C. App. 375, 382, 715 S.E.2d 176, 182 (2011) (citation omitted). Once it has been determined that the findings of fact are supported by the evidence, we must then determine whether those findings of fact support the conclusions of law. Dep t of Transp. v. Elm Land Co., 163 N.C. App. 257, 264, 593 S.E.2d 131, 136 (2004) (citation omitted). conclusions of law de novo. We review the trial court s Ferguson v. Coffey, 180 N.C. App. 322, 324, 637 S.E.2d 241, 242 (2006) (citation omitted). We note that [f]indings of fact which are essentially conclusions -8of law will be treated as such upon review. Lumber Co., 328 N.C. 67, 70, 399 S.E.2d Cody v. Snider 104, 106 (1991) (citation omitted). III. Discussion On appeal, defendant argues that the trial court erred by entering finding of fact number 10, by granting a declaratory judgment in favor of plaintiff, and by ordering defendant to remove all obstructions from the right of way and easement. First, defendant argues that the trial court erred by entering finding of fact number 10 which stated the following: 10. The Court specifically finds that the words proposed 12-foot private drive and utility easement as shown on the plat is in fact a right of way and easement of record for access and utility purposes (hereinafter, right of way or easement ), and that Lot #2 of the plat and it s owner and all future owners, their heirs, successors and assigns, are subject to said easement for the benefit of Lot #3 of Plat Book 121, Page 63, Buncombe County Registry. Specifically, defendant argues that finding of fact number 10 is more appropriately classified as a conclusion of law and that the language, proposed 12 private drive and easement[,] is insufficient to create an easement. utility Based on the foregoing, defendant asserts that the trial court erred by -9granting declaratory judgment in favor of plaintiff. We disagree. As a preliminary matter, because we deem finding of fact number 10 as a conclusion of law, we will review it as such. An easement is an interest in land, and is generally created by deed. . . . An easement deed, such as the one in the case at bar, is, of course, a contract. The controlling purpose of the court in construing a contract is to ascertain the intention of the parties as of the time the contract was made. . . . The intention of the parties is to be gathered from the entire instrument and not from detached portions. Higdon v. Davis, 315 N.C. 208, 215, 337 S.E.2d 543, 547 (1985) (citation omitted). unambiguous, courts. their When such construction is contracts a matter are of plain law for and the Lovin v. Crisp, 36 N.C. App. 185, 188, 243 S.E.2d 406, 409 (1978) (citation omitted). Defendant argues that the inclusion of the word proposed to describe the easement at issue is insufficient to create an easement. In interpreting a contract, [i]f no definition is given, non-technical words are to be given their meaning in ordinary speech, unless the context clearly indicates another meaning was intended. Reaves v. Hayes, 174 N.C. App. 341, 345, 620 S.E.2d 726, 729 (2005) (citation omitted). -10In the case sub judice, it is clear that the parties intended for the conveyance of Lot #2 to be made subject to the easement despite the use of the word proposed. The trial court s unchallenged findings of fact, which are deemed binding on appeal, establish that plaintiff hired Peterson to subdivide the subject property into three separate lots and to prepare a plat of the subject property. See Mussa v. Palmer-Mussa, 366 N.C. 185, 191, 731 S.E.2d 404, 409 (2012) (citation omitted) (stating that unchallenged findings of fact are presumed to be supported by competent evidence and [are] binding on appeal ). The plat showed a 12 private drive and utility easement accessing all three lots and was subsequently recorded in the Buncombe County, North Carolina Registry. The plat was approved as a special subdivision by the Zoning Administrator of Buncombe County and had a notation that the access is considered a private drive. When plaintiff acquired title to the property by three separate deeds, each deed made reference to the plat in its property descriptions and stated that the property described in the deed was subject to easements, restrictions, and the rights of way of record. Both of the conveyances of Lot #2 from plaintiff to CMH Homes, Inc. and the conveyance from CMH Homes, -11Inc. to defendant make reference to the plat and contains the notation that subject to Furthermore, the the real property easements, plaintiff s described restrictions 22 September in and 2006 the rights Road deed of is way. Maintenance Agreement specifically stated that plaintiff wished to give a Right of Way for ingress and utilities, and to enter into a Road Maintenance Agreement for the portion of the common drive that they use. Based on the foregoing, we hold that it was clearly plaintiff s intention purchase the of to subject create an property, easement that the prior to applicable her deeds contain language specifying that the real property is subject to easements[,] and Maintenance Agreement easement. Therefore, that the reference defendant applicable the was easement and her arguments must fail. plat put deeds which on and includes notice of Road the this See Reed v. Elmore, 246 N.C. 221, 231, 98 S.E.2d 360, 367 (1957) (citation omitted) (stating that if a deed or a contract for the conveyance of one parcel of land, with a . . . easement affecting another parcel of land owned by the same grantor, is duly recorded, the record is constructive notice to a subsequent purchaser of the latter parcel ). Because we hold that the trial court did not err by concluding that there was an easement of record for access and -12utility purposes . . . and that Lot #2 of the plat and it s [SIC] owners and all future owners, their heirs, successors and assigns, are subject to said easement for the benefit of Lot #3 of the plat, we affirm the trial court s granting of a declaratory judgment in favor of plaintiff. Lastly, defendant argues that the trial court erred by ordering her to remove any and all obstructions located on Lot #2 of the plat . . . which would prevent the free and unrestricted vehicular and utility access over and across [the easement]. The removal shall include, but not be limited to, the removal of the wooden picket fence and wooden shed currently located within said right of way. We disagree. Defendant s placement of a gate and shed across the easement, preventing plaintiff s access to her property, took away plaintiff s rights to the easement. In North Carolina, it is an established principle that the possessor of an easement has all rights that are necessary to the reasonable and proper enjoyment of that easement. Intermount Distrib., Inc. v. Public Serv. Co. of N.C., 150 N.C. App. 539, 542, 563 S.E.2d 626, 629 (2002) (citation omitted). Accordingly, we hold that the trial court did not err in ordering the removal of the fence -13and shed and the 12 October 2012 order of the trial court is affirmed. Affirmed. Judges McGEE and DILLON concur. Report per Rule 30(e).

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