Real Property – Easement – Right-of-Way – Cemetery – Rights of the General Public

King v. Orr. (Lawyers Weekly No. 11-16-0186, 20 pp.) (Linda M. McGee, J.) Appealed from Pender County Superior Court. (Gary Locklear, J.) N.C.App. Unpub. Click here for the full text of the opinion.

Holding: The trial court erred by granting summary judgment to the plaintiffs where the defendants raised an issue of material fact as to whether a 12-foot exception described in a 1932 deed was a part of the tract of land the defendants purchased in 1990.

The trial court did not err by holding that one plaintiff had been conveyed a 60-foot right-of-way across the defendants’ property where the description of the right-of-way in the deed and the map were inconsistent. In that case, the map controls.

The trial court’s conclusion of law as to whether three plaintiffs were entitled to use the 60-foot right-of-way to access a family cemetery was in error, and the issue is remanded to the trial court to make a proper determination of whether the three plaintiffs have acquired an easement by implication with respect to the contested properties.

The trial court did not err in granting summary judgment to the plaintiffs as to the boundaries of the cemetery where the boundaries were marked in a map prepared by the defendants’ surveyor.

Facts

The Kings and the Stanleys executed a quitclaim deed to A.W. King in 1932. The parcel conveyed was known as Lot No. 1 and was recorded in the register of deeds. Excepted from the property was a 12-foot road on the east side of the line between Lots 1 and 2.

When A.W. King died in 1972, his real property was divided among his heirs. The heirs prepared and recorded a map of the division of King’s estate. The estate map depicted six tracts of land bordering on Bishop’s Creek and Topsail Sound in Topsail Township, and a seventh tract that did not adjoin the other six tracts.

Running through the six contiguous tracts and ending at a point 724.11 feet along the eastern edge of tract six was a 60-foot right-of-way that was not dedicated to the general public.

Margaret Whaley was married to Homer King, the son of A.W. King. Like his father, Homer King died in 1972. Whaley then became the owner of tracts five and seven on the estate map.

Whaley’s deed referred to the map and contained language describing a perpetual right-of-way easement for ingress and egress over and across the road leading from the land to its intersection with Leeward Drive of Black Beard Cove Subdivision.

The Orrs purchased tract six from Alma King Eubank and Thelma E. King in 1990. The Orrs’ deed described tract six as “…all of Tract No. 6 of the A.W. King Division, containing 58.24 acres, more or less, as shown on a map thereof recorded in Map Book 13 at page 2. …” The description referenced certain rights of way and easements and books and pages of recordings of the same. The deed referred to a survey map the Orrs had prepared prior to their purchase of the tract.

A dispute arose in 2005 when the Orrs erected a gate across the 60-foot right-of-way and prevented the plaintiffs from accessing a family cemetery. The Orrs also tore down a fence surrounding the cemetery and erected a new fence that contained a smaller area than the original fence.

The plaintiffs sued the Orrs seeking a declaratory judgment regarding the property rights and interests of the plaintiffs and the Orrs in accessing and using the cemetery, the 60-foot right-of-way, and the 12-foot road exception; a preliminary injunction restraining the Orrs from prohibiting the plaintiffs’ access to the cemetery and use of the 60-foot easement and 12-foot road exception; a declaratory judgment and permanent injunction to remove the gate and enjoin the Orrs from interfering with the plaintiffs’ use of all easements and reasonable use of the cemetery. The Orrs filed an answer and counterclaim.

Both the plaintiffs and the Orrs filed cross-motions for summary judgment. The trial court granted the plaintiffs’ motion for summary judgment and denied the Orrs’ motion for summary judgment.

The 12-foot Exception

The Orrs contend that the trial court erred by granting summary judgment in favor of the plaintiffs as to the right of three plaintiffs to use the 12-foot exception to access Edens Landing as shown on a map prepared by a surveyor the Orrs employed prior to their purchase of property in 1990.

At issue is the ownership of the 12-foot exception referred to in the 1932 deed. An “exception” clause in a deed has the effect of the grantor’s retaining a portion of the property which would otherwise have been conveyed in the deed. The 12-foot exception described in the 1932 deed was not conveyed to A.W. King but instead was retained by A.D. King, L.E. Stanley, and Gaynelle Stanley.

The Orrs contend that the trial court’s granting the plaintiffs’ summary judgment motion was error as to the 12-foot exception because there was a genuine issue of a material fact. Specifically, the Orrs challenge the underlying contention that the real property conveyed in the 1932 deed is the same real property as described in the Orr deed.

The Orrs presented an affidavit by Sherwin Cribb, a real estate attorney, who averred that the Orrs took the property subject to the easements set forth at Book 429, Page 46. The deed at Book 429, Page 46 is for a separate tract of land and does not describe any easements on the Orr property, Cribb averred.

The Orrs contended that Cribb’s affidavit raised a genuine issue of material fact as to exactly which tract of real property was subject to the 1932 deed. The real property described in the 1932 deed is not congruent with the real property described in the map prepared by the Orrs’ surveyor and related deeds. Thus, the Orrs raise a question regarding whether the real property described in the 1932 deed and the exception contained therein is actually the same real property purchased by the Orrs.

Because of this question of fact, the trial court erred in granting the plaintiffs’ summary-judgment motion as to the ownership or right to use the 12-foot exception. We must remand to the trial court to make a proper determination as to whether the 1932 deed and the 12-foot exception are, in fact, the same real property that was later divided in the estate map, as well as findings regarding what happened with that real property prior to the Orrs taking title to tract six.

60-foot Right-of-way to Cemetery

The Orrs next argue that the trial court erred by granting summary judgment in favor of Margaret Whaley as to the issue of a 60-foot right-of-way across tract six that connected her real property to the cemetery located on tract six.

The language of Margaret Whaley’s deed conveys to her a 60-foot right-of-way to Leeward Drive for ingress and egress and also makes direct reference to the estate map.

Whaley took title to tract five by virtue of a deed which contained an explicit reference to the estate map. The estate map clearly depicts the 60-foot right-of-way extending along the western line of tract six some 724.11 feet, well beyond Leeward Drive as shown on the map.

Whaley obtained her easement rights in the 60-foot right-of-way as shown on the estate map when the land was conveyed to her in 1972. Though the language of Whaley’s deed describes the easement as extending only to Leeward Drive, the estate map clearly shows the right-of-way extending a precise and measurable amount well beyond Leeward Drive.

The estate map is controlling. Because none of these facts are in dispute, there is no genuine issue as to any material fact with respect to Whaley’s interest in the 60-foot right-of-way. Therefore, summary judgment was proper and the trial court did not err in granting Whaley summary judgment as to the issue of her interest in the 60-foot right-of-way.

Use of Right-of-way

The Orrs also argue that the trial court erred by granting summary judgment in favor of three plaintiffs as to their right to use the 60-foot right-of-way to access the cemetery. The Orrs contend that, because the 60-foot right-of-way set forth in the estate map was not dedicated to the public, the owners of property outside of that estate division are not entitled to make use of the right-of-way. Unlike Whaley, these three plaintiffs do fall within the general public category of persons described in Price v. Walker, 95 N.C. App. 712 (1989).

As discussed in Price, a dedication must be made to the public at large, not part of the public, and before a dedication can take effect, it must be accepted by the appropriate authorities.

Because Robert King, Ann King and A. William King do not own parcels of real property within the boundaries of the area platted and recorded, they acquired the rights of the general public, not the rights of the purchaser within the area.

Though there was no issue of material fact as to the deeds with respect to this issue, the trial court’s conclusion of law as to the ownership rights afforded by the deeds was in error. We therefore remand this issue to the trial court to make a proper determination of whether the three plaintiffs have acquired an easement by implication with respect to the contested properties.

Cemetery Boundaries

The Orrs next contend that the plaintiffs have statutory rights to visit the cemetery, but those rights are limited to visiting particular graves that are of interest to them, and not the cemetery as a whole. The Orrs contend that there is a genuine issue of material fact as to what the actual boundaries of the cemetery are.

In the present case, the map by the Orrs’ surveyor sets forth the exact location of the cemetery with clearly identifiable metes and bounds, including a path leading directly from the cemetery to the western edge of the Orrs’ property. Because of the incorporation of the Orrs’ map into their deed, the Orrs took title to tract six with the cemetery boundaries as established in the map.

The Orrs present no question of fact which would affect this issue of law, and there being no other material question of fact as to the cemetery with respect to the map, summary judgment was proper. Therefore, the trial court did not err in granting summary judgment to the plaintiffs as to the boundaries of the cemetery.

Affirmed in part and reversed and remanded in part.