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NO. COA07-1031


Filed: 6 May 2008


New Hanover County

No. 03-CVS-2941
ZP NO. 116, L.L.C.,
Defendants and
Third-Party Plaintiff,


Third-Party Defendants and
Third-Party Plaintiffs,


Third-Party Defendant.

Appeal by plaintiff, Z.A. Sneeden’s Sons, Inc., and third-
party plaintiffs, Stuart Sneeden and Z.A. Sneeden, L.L.C., from
order entered 30 April 2007 by Judge Russell J. Lanier, Jr. in New
Hanover County Superior Court. Heard in the Court of Appeals 21
February 2008.

Boxley, Bolton, Garber & Haywood, L.L.P., by Ronald H. Garber,
for plaintiff-appellant and for third-party defendants and
third-party plaintiff-appellants Stuart Sneeden and Z.A.
Sneeden, L.L.C.

Ward and Smith, P.A., by Ryal W. Tayloe and Thomas S. Babel,
for defendant and third-party plaintiff-appellee ZP No. 116,
L.L.C. and for third-party defendant-appellee Jeffrey Zimmer.

Hunton & Williams, L.L.P., by Robert C. Van Arnam, for
defendant-appellee McDonald’s Corporation.

Hogue, Hill, Jones, Nash & Lynch, L.L.P., by Wayne A. Bullard
and Anna J. Averitt, for defendant-appellees Lowe’s Home
Centers, Inc.

TYSON, Judge.

Z.A. Sneeden’s Sons, Inc. and Z.A. Sneeden, L.L.C.
(collectively, “plaintiffs”) appeal order entered granting summary
judgment in favor of ZP No. 116, Lowe’s Home Centers, Inc.,
McDonald’s Corporation, and Jeffrey Zimmer (collectively,
“defendants”). We affirm in part, reverse in part, and remand.

I. Background

In early 2000, Jeffery Zimmer and ZP No. 116 (“ZP”)
contemplated the development of several tracts of property near a
shopping center located at the intersection of College Road and
U.S. 421 in Wilmington. On 5 June 2000, the New Hanover County
Board of Commissioners granted ZP a special use permit for retail
uses in a conditional use B-2 Highway business zoning district.
The special use permit was conditioned upon, inter alia, ZP
“[i]ncorporat[ing] the existing Sneeden center into the design as
much as possible through orientation and aligning drive aisles and
entrances to existing uses.” To satisfy this condition, ZP was
required to partially gain access to its property through adjoining
property owned by Z.A. Sneeden’s Sons, Inc. (“Sneeden”).
On 26 October 2000, Sneeden, ZP, and Lowe’s Home Centers, Inc.
(“Lowe’s”) entered into an easement agreement (“easement”),
recorded in Book 2825, Page 276 of the New Hanover County Registry.
The easement granted Lowe’s and ZP a non-exclusive access easement
for “vehicular and pedestrian ingress and egress between CarolinaBeach Road, South College Road, the Sneeden Property, the Zimmer
Property, and the Lowe’s Property . . . .” In consideration for
the easement, Sneeden was paid $150,000.00. ZP and Lowe’s also
agreed to finance and complete the required construction needed to
improve traffic flow on Sneeden Road.
Subsequently, construction on the reconfiguration of Sneeden
Road commenced. ZP made various improvements to the easement area
including: (1) relocating a portion of, widening, and paving the
road and (2) installing curbing, stormwater drainage, and a new
traffic light. ZP completed these improvements at a cost in excess
of $1,000,000.00. Upon completion in February 2002, the general
public began using the new access driveway on Sneeden Road to
access Lowe’s, McDonald’s, and other businesses located on
Sneeden’s property.
On 12 December 2002, ZP applied to the New Hanover County
Planning and Inspection Department for a building permit to
construct a 28,000 square foot shopping center on ZP’s tract of
land, which is adjacent to Sneeden’s and Lowe’s tracts. ZP planned
to construct the shopping center as retail shops and lease them to
various tenants. The New Hanover County Planning and Inspection
Department approved the building permit upon the condition that an
access roadway be constructed between Sneeden Road and property
located to the west of Sneeden’s property, owned by Wal-Mart Stores
East, Inc. (“Wal-Mart”). ZP complied with this condition and also
installed an additional access driveway, which connected Sneeden
Road to its property. On 13 August 2003, Sneeden filed a complaint against ZP and
Lowe’s alleging: (1) ZP was attempting to extend its easement
rights to Wal-Mart and Lowe’s causing their invitees and guests to
trespass on Sneeden Road; (2) Lowe’s or Wal-Mart had no right to
lay or maintain asphalt, curbing, or driveways near the western
edge of Sneeden Road; (3) Sneeden was entitled to have the easement
reformed to reflect Sneeden’s, ZP’s, and Lowe’s intent based upon
mutual mistake, mistake of a draftsman, and fraud; and (4) an
unfair and deceptive trade practice claim against ZP.
On 30 October 2003, ZP filed an answer denying the material
allegations therein and asserted the affirmative defenses of
latches, estoppel, and waiver. On 1 December 2003, ZP amended its
answer and asserted three counterclaims against Sneeden including:
(1) slander of title and (2) breach of contract. ZP also sought to
permanently enjoin Sneeden from “obstructing or interfering with
[ZP’s] right to use, enjoyment, and benefits of such Access
Easement Areas.” On 4 February 2004, Sneeden filed an amended
complaint joining third party plaintiff Z.A. Sneeden, LLC and
sought to have the easement declared null and void.
On 30 August 2005, plaintiffs filed an additional motion to
amend their complaint. Plaintiffs’ motion stated, “it has recently
come to the attention of [plaintiffs], through discovery in this
case that a portion of land involved in this case is involved in
this controversy and dispute where it has not been previously
apparent that it was involved in the controversy and dispute.”
Plaintiffs’ motion also sought to add two additional claims forrelief: (1) an injunction to prohibit and prevent ZP’s and Lowe’s
guests and invitees from entry upon plaintiffs’ land and (2) a
declaratory judgment as to the rights of the parties involving the
private road connection from College Road to Lowe’s business
location. ZP and Lowe’s subsequently filed amended answers again
asserting the affirmative defenses of laches, estoppel, and waiver.
On 13 March 2006, the trial court ordered McDonald’s
Corporation to be joined as a necessary party. On 22 March 2006,
plaintiffs filed a complaint against McDonald’s Corporation as a
party defendant. On 6 October 2006, McDonald’s Corporation filed
their answer and asserted the affirmative defense of laches,
estoppel, and waiver. By 22 March 2007, defendants had moved for
summary judgment.
On 30 April 2007, the trial court entered an order granting
defendants’ motions for summary judgment. The trial court
dismissed ZP’s counterclaims for slander of title and breach of
contract without prejudice. Plaintiffs appeal.

II. Issues

Plaintiffs argue the trial court erred by granting defendants’
motion for summary judgment because evidence was presented that
tended to show: (1) defendants agreed to a reformation of the
easement agreement based on mutual mistake or mistake of the
draftsman; (2) defendants had trespassed on plaintiffs’ land; (3)
the easement agreement failed to contain a sufficient description;
and (4) defendants attempted to extend the right to access and useSneeden Road to a tract of land not named in the easement

III. Standard of Review

Summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and that
any party is entitled to a judgment as a
matter of law. The party moving for summary
judgment ultimately has the burden of
establishing the lack of any triable issue of

A defendant may show entitlement to summary
judgment by (1) proving that an essential
element of the plaintiff’s case is
non-existent, or (2) showing through discovery
that the plaintiff cannot produce evidence to
support an essential element of his or her
claim, or (3) showing that the plaintiff
cannot surmount an affirmative defense.
Summary judgment is not appropriate where
matters of credibility and determining the
weight of the evidence exist.

Once the party seeking summary judgment makes
the required showing, the burden shifts to the
nonmoving party to produce a forecast of
evidence demonstrating specific facts, as
opposed to allegations, showing that he can at
least establish a prima facie case at trial.

We review an order allowing summary judgment
de novo. If the granting of summary judgment
can be sustained on any grounds, it should be
affirmed on appeal.

Wilkins v. Safran, ___ N.C. App. ___, ___, 649 S.E.2d 658, 661
(2007) (internal citations and quotations omitted).

IV. Equitable Estoppel

Plaintiffs argue the trial court erred by granting defendants’
motion for summary judgment because defendants trespassed onplaintiffs’ land by constructing four exit lanes across plaintiffs’
The physical area of land in controversy lies within the exit
lanes of the main access driveway into the shopping center where
Sneeden Road intersects with South College Road. The tract of
property measures 56 feet by 107 feet. Plaintiffs allege they did
not discover that a portion of the driveway was located on their
property until 2005. Plaintiffs argue the easement does not grant
Lowe’s and ZP easement rights over this tract of property.
Equitable estoppel has been recognized in North Carolina as a
valid legal doctrine. Whiteacre P’ship v. Biosignia, Inc., 358
N.C. 1, 16, 591 S.E.2d 870, 881 (2004). Equitable estoppel should
be applied:
when any one, by his acts, representations, or
admissions, or by his silence when he ought to
speak out, intentionally or through culpable
negligence induces another to believe certain
facts exist, and such other rightfully relies
and acts on such belief, so that he will be
prejudiced if the former is permitted to deny
the existence of such facts.

Id. at 17, 591 S.E.2d at 881 (citation and quotation omitted).
North Carolina has also adopted the doctrine of quasi-
estoppel. Id. at 18, 591 S.E.2d at 881. Quasi-estoppel “does not
require detrimental reliance per se by anyone, but is directly
grounded instead upon a party’s acquiescence or acceptance of
payment or benefits, by virtue of which that party is thereafter
prevented from maintaining a position inconsistent with those
acts.” Godley v. County of Pitt, 306 N.C. 357, 361, 293 S.E.2d
167, 170 (1982) (citations omitted). “In comparison to equitableestoppel, quasi-estoppel is inherently flexible and cannot be
reduced to any rigid formulation.” Whiteacre, 358 N.C. at 18, 591
S.E.2d at 882. “[T]he essential purpose of quasi-estoppel . . . is
to prevent a party from benefitting by taking two clearly
inconsistent positions.” B & F Slosman v. Sonopress, Inc., 148
N.C. App. 81, 88, 557 S.E.2d 176, 181 (2001), disc. rev. denied,
355 N.C. 283, 560 S.E.2d 795 (2002).
Here, plaintiffs were paid and accepted $150,000.00 in
consideration for the easement. ZP and Lowe’s also agreed to pay
all costs required to reconfigure the intersection of Sneeden Road
and South College Road. ZP and Lowe’s agreed to “rework the
intersection” by widening the road thirty-six feet with two foot
concrete curb and gutter, to account for the extra flow of traffic
and to accommodate access to McDonald’s and Sneeden’s other tenants
and property. Stormwater drainage and a traffic light were also
installed. The total cost to reconfigure and improve Sneeden Road
exceeded $1,000,000.00. ZP and Lowe’s further agreed to maintain
the newly configured roadway pursuant to the easement agreement.
Subsequently, the general public, including plaintiffs’ and
defendants’ tenants and their customers, began using Sneeden Road
to access the shopping centers.
Plaintiffs accepted payment for and have enjoyed the mutual
benefits of the easement and reconfiguration of Sneeden Road for
over five years. Plaintiffs are estopped from now asserting the
easement did not give ZP and Lowe’s access over the property in
controversy. Id. This assignment of error is overruled. In lightof our holding, it is unnecessary to review the remaining
assignments of error addressing this tract of property.

V. Easement Description

Plaintiffs argue the trial court erred by granting defendants’
motion for summary judgment because the easement did not contain a
sufficient description. We disagree.
When an easement is created by an express grant:
No particular words are necessary to
constitute a grant, and any words which
clearly show the intention to give an
easement, which is by law grantable, are
sufficient to effect that purpose, provided
the language is certain and definite in its
terms. . . . The instrument should describe
with reasonable certainty the easement created
and the dominant and servient tenements

Hensley v. Ramsey, 283 N.C. 714, 730, 199 S.E.2d 1, 10 (1973)
(emphasis supplied) (citations and quotations omitted). The
description of the easement “must either be certain in itself or
capable of being reduced to a certainty by a recurrence to
something extrinsic to which it refers.” Allen v. Duvall, 311 N.C.
245, 249, 316 S.E.2d 267, 270 (1984) (citation and quotation
A grant of an easement will only be held as void:
when there is such an uncertainty appearing on
the face of the instrument itself that the
court — reading the language in the light of
all the facts and circumstances referred to in
the instrument
— is yet unable to derive
therefrom the intention of the parties as to
what land was to be conveyed.

Id. (emphasis original) (citation omitted). It is undisputed that the servient and dominant estates are
clearly described within the easement. Therefore, the dispositive
issue before us is whether the agreement contains a sufficient
description of the easement created. We hold that it does.
Here, the easement agreement granted ZP and Lowe’s an access
easement “over and across the ‘Lowe’s Access Easement Area’”
located on the Site Plan attached as Exhibit D. Three separate
maps were attached to and recorded with the easement. Exhibits D1
and D3 designated the property to be known as “Sneeden’s Access
Easement” and “Lowe’s Access Easement.”
Plaintiffs’ main contention both in their brief and during
oral arguments was that because certain calls were missing from the
easement’s metes and bounds description on the recorded map labeled
Exhibit D3, the easement description was insufficient. Plaintiffs
repeatedly asserted that if one was to plot the calls located on
Exhibit D3, the easement would have no starting or end point.
Although calls were missing within the easement’s metes and
bounds description, this omission does not cause the easement to
become ineffective and void. See Kaperonis v. Highway Commission,
260 N.C. 587, 598, 133 S.E.2d 464, 472 (1963) (citation and
quotation omitted) (“Where a deed contains two descriptions, one by
metes and bounds and the other by lot and block according to a
certain plat or map, the controlling description is the lot
according to the plan, rather than the one by metes and bounds.”).
Accordingly, Exhibit D3 determines whether the easement description
is sufficient. Exhibit D3 clearly shows the location and path of the easement
in relation to the adjoining properties. Based upon a review of
the easement and its attached exhibits, we are able “to derive
therefrom the intention of the parties as to what land was to be
conveyed.” Allen, 311 N.C. at 249, 316 S.E.2d at 270. The
description of the easement is sufficient. This assignment of
error is overruled.

VI. Easement Rights

Plaintiffs also argue that the trial court erred in granting
defendant’s motion for summary judgment because defendants: (1)
improperly granted rights over the Lowe’s Access easement to Wal-
Mart in a separate agreement between defendants’ and Wal-Mart and
(2) the easement between plaintiffs and defendants did not permit
defendants to pave a portion of the Lowe’s Access easement in any
area unless the paved portion created passage off defendants’
property directly onto Sneeden Road. We find genuine issues of
material fact regarding plaintiffs’ second argument.
As a general matter, easements are “granted for the benefit of
the particular land, and its use is limited to such land. Its use
cannot be extended to other land, nor can the way be converted into
a public way without the consent of the owner of the servient
estate.” Wood v. Woodley, 160 N.C. 17, 19-20, 75 S.E. 719, 720
(1912) (citation and quotation omitted). To resolve these issues
we review the easement itself.
“An easement deed is a contract. When such contracts are
plain and unambiguous, their construction is a matter of law forthe courts.” Lovin v. Crisp, 36 N.C. App. 185, 188, 243 S.E.2d
406, 409 (1978) (citations omitted). In order to construe the
intent of the parties, “we are required to look to the instrument
in its totality.” Id. at 189, 243 S.E.2d at 409. “We are
additionally required to give the terms used therein their plain,
ordinary and popular construction, unless it appears the parties
used them in a special sense.” Id.
Plaintiffs cite an amendment to the Declarations of Covenants,
Conditions, and Restrictions entered into between defendants and
Wal-Mart in support of its argument that such rights have been
granted to Wal-Mart. The “grantees” and “grantors” in this
document refer to Wal-Mart and defendants, respectively. In
relevant part, that document states:
Each Party hereby grants to the other Parties
easements for pedestrian and vehicular traffic
in those strips of land on its (Grantor’s)
Parcel which are shown on the Site Plan and
the Revised Site Plan (hereinafter
collectively referred to as “Access Roads”)
for the purpose of providing ingress to and
egreess from Grantees’ Parcels and each of
N.C. Highway 132 (South College Road), the
“Sneeden Access Road” (as designed on the
Revised Site Plan), and U.S. Highway 421
(Carolina Beach Road)[.]

Plaintiffs fail to note that the access easements granted
between defendants and Wal-Mart contain an important limitation:
Subparagraph (a) of the same section on which plaintiffs rely,
limits the effect of the language plaintiffs cited by expressly
restricting the use of the access road easements to “any person
entitled to the use thereof[.]” There is no dispute that Wal-Mart
does not have rights to use the Lowe’s Access easement or the areaknown as Sneeden Road. Defendants confirmed during oral argument
that they make no claims that Wal-Mart is or was ever entitled to
use the easement granted by plaintiffs to defendants.
Further, the amendment to the declaration recognizes Wal-Mart
had no rights at the time the document was executed and includes a
specific limitation that states, “at such time as all of the Wal-
Mart Property is granted the benefit . . . and the use of Sneeden
Access Road
,” Wal-Mart will be required to pay a pro-rata share of
costs to expand Sneeden Road. (Emphasis supplied)). Although that
provision dealt with the costs associated with improvements made by
defendants to Sneeden Road and the Lowe’s Access easement, it
evidences the parties’ intent that, as a third-party owner of an
adjoining tract and stranger to the easement between the parties,
Wal-Mart would not receive any easement rights across Sneeden’s
property by virtue of the agreement between defendants and Wal-
Plaintiffs next argue that defendants, by paving a portion of
the Lowe’s Access easement so that it adjoins Wal-Mart’s property,
exceeded the scope of the easement agreement.
“[A]n easement holder may not increase his use so as to
increase the servitude or increase the burden upon the servient
tenement. If the easement holder makes an unwarranted use of the
land in excess of the easement rights held, such use will
constitute an excessive use and may be enjoined.” Hundley v.
, 105 N.C. App. 432, 435, 413 S.E.2d 296, 298 (1992)
(citation omitted). “[P]laintiffs [only] have the right to usetheir property within the easement consistent with the purpose for
which the easement was created.” Id. at 436, 413 S.E.2d at 298.
We must determine whether the agreement allowed defendants to pave
and use a portion of the Lowe’s Access easement that was not a
direct access off of defendants’ property.
Two provisions in the easement between the parties are
illustrative. The first states that, the Lowe’s Access easement
was granted “for the sole purposes of allowing . . . (ii) such
maintenance, repair, . . . and other improvements constructed by
[defendants] . . . [on the Lowe’s Access easement]
.” Here,
defendants, by paving a portion of the Lowe’s Access easement,
improved that easement _ fulfilling one of the “sole purposes” of
the easement. (Emphasis supplied). However, in the same section,
the grant states that the easement “shall be for the benefit of
[defendants’] [p]roperty or any part thereof[.]”
Defendants argue that providing an ingress and egress at Wal-
Mart’s property benefits defendants’ property because defendants
are able to access Sneeden Road at multiple locations. Plaintiffs,
however, argue that the easement was never intended to allow
defendants to access the easement from Wal-Mart’s property and
defendants’ actions overburdened plaintiffs’ property in a way not
intended by the easement agreement.
Reading the easement as a whole, we are unable to determine
whether the parties intended to allow defendants to pave and use
portions of the Lowe’s Access easement that did not adjoin
defendants’ property. When the intent of the party is not clearfrom the written agreement, “extrinsic evidence is not permitted in
order to add to, detract from, or vary the terms of an integrated
written agreement, extrinsic evidence is admissible in order to
explain what those terms are.” Century Communications v. Housing
Authority of the City of Wilson
, 313 N.C. 143, 146, 326 S.E.2d 261,
264 (1985) (citation and quotation omitted). “[E]xtrinsic evidence
as to the circumstances under which a written instrument was made
has been held to be admissible in ascertaining the parties’
expressed intentions, subject to the limitation that extrinsic
evidence is not admissible in order to give the terms of a written
instrument a meaning of which they are not reasonably susceptible.”
Id. at 147, 326 S.E.2d at 264 (citation and quotation omitted).
Because we are unable to determine the meaning of those terms,
we reverse the trial court’s grant of summary judgment for
defendants and remand to the trial court to: (1) hear parol
evidence regarding their meaning and to rule on whether the
easement between the parties allowed for defendants to pave a
portion of the Lowe’s Access easement not adjoining their property
and (2) rule on whether defendants’ actions overburdened the
easement over plaintiffs’ property.

VII. Conclusion

Based upon plaintiffs’ acceptance of payment in consideration
of the easement and the enjoyment of the mutual benefits derived
from the reconfiguration and improvements to Sneeden Road,
plaintiffs are estopped from now asserting that the easement
agreement did not give ZP and Lowe’s access over the 56 feet by 107feet tract of property in controversy. The recorded easement and
its attached exhibits clearly show where the easement is located in
relation to the adjoining properties. The description of the
easement is sufficient.
Finally, we find genuine issues of material fact exist
regarding whether defendants were allowed to pave a portion of the
Lowe’s Access easement that did not adjoin their property and
whether defendants’ actions overburdened plaintiffs’ property. The
trial court’s order is affirmed in part, reversed in part, and
remanded for proceedings not inconsistent with this opinion.
Affirmed in Part; Reversed in Part; and Remanded.
Judges HUNTER and MCCULLOUGH concur.

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