{ "id": 8522113, "name": "PATTI JEAN GREGORY, JOHNNIE B. LYTTLE, A. C. SEWELL, T. A. SEWELL and wife, NADINE S. SEWELL, EMILY G. TURNER, WILSON E. ANDERSON, and LIDA M. STAPLETON, Plaintiffs v. ANNA F. FLOYD and THOMAS E. NEWMAN, Defendants", "name_abbreviation": "Gregory v. Floyd", "decision_date": "1993-11-02", "docket_number": "No. 922DC454", "first_page": "470", "last_page": "476", "citations": [ { "type": "official", "cite": "112 N.C. App. 470" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "154 A. 299", "category": "reporters:state_regional", "reporter": "A.", "year": 1931, "opinion_index": 0 }, { "cite": "303 Pa. 131", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1130018 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/pa/303/0131-01" ] }, { "cite": "98 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "246 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625745 ], "weight": 2, "year": 1957, "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0221-01" ] }, { "cite": "347 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774211, 4774790, 4776588, 4780213, 4773560 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0714-04", "/nc/317/0714-01", "/nc/317/0714-02", "/nc/317/0714-05", "/nc/317/0714-03" ] }, { "cite": "344 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "81 N.C. App. 617", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524701 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/81/0617-01" ] }, { "cite": "373 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565801, 2561004, 2561552, 2560886, 2560286 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0365-03", "/nc/323/0365-01", "/nc/323/0365-05", "/nc/323/0365-02", "/nc/323/0365-04" ] }, { "cite": "365 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520786 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0127-01" ] }, { "cite": "135 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "35-36" } ], "opinion_index": 0 }, { "cite": "261 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573855 ], "year": 1964, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0414-01" ] }, { "cite": "79 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626101 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0149-01" ] }, { "cite": "195 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556116 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0495-01" ] }, { "cite": "418 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "846" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527276 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0154-01" ] }, { "cite": "415 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498339 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0182-01" ] } ], "analysis": { "cardinality": 686, "char_count": 14408, "ocr_confidence": 0.773, "pagerank": { "raw": 1.5506160599231012e-07, "percentile": 0.674576008099314 }, "sha256": "7551879120c12e9d48ceb761ae628cb02d82e8be315316fe13c07092cfeca6c2", "simhash": "1:427444e2181922c8", "word_count": 2445 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and McCRODDEN concur." ], "parties": [ "PATTI JEAN GREGORY, JOHNNIE B. LYTTLE, A. C. SEWELL, T. A. SEWELL and wife, NADINE S. SEWELL, EMILY G. TURNER, WILSON E. ANDERSON, and LIDA M. STAPLETON, Plaintiffs v. ANNA F. FLOYD and THOMAS E. NEWMAN, Defendants" ], "opinions": [ { "text": "JOHNSON, Judge.\nThis is an action brought by plaintiff homeowners in a subdivision in response to plans by the original owner of the entire subdivision to sell off the remaining portions of the land, in particular, a portion believed to be a \u201ccommon area,\u201d identified on the recorded plat as \u201cBEACH.\u201d\nThe facts of this appeal are as follows: On 14 October 1970, E. V. Floyd (now deceased) and wife, defendant Anna F. Floyd, had a survey prepared and recorded with the Registrar of Deeds in Hyde County of a subdivision of certain lands owned by them as tenants by the entirety. This subdivision map identified specific lots in the subdivision, but made no reference to a \u201cBEACH.\u201d On 8 March 1971, E. V. Floyd and Anna F. Floyd conveyed one lot identified in this subdivision plat to George G. Williams and wife, Mildred M. Williams. This conveyance contained the following language, which followed a metes and bounds description of the property:\nThe foregoing courses are magnetic as of 1970 and this lot will be designated as Lot No. \u201c49\u201d on the final sub-division map of the Swan Quarter Canal Property.\nThe parties of the first part do also convey to the parties of the second part, their heirs and assigns ... an easement or right to use the boat ramp that has been constructed and is now located on the Southwest side of Fodrey Creek, together with a right to use the crescent beach located on the Southwest side of Fodrey Creek, which beach is located approximately 65 feet in a southwestwardly direction from the Southwest edge of the above referred to ramp and said beach has a water front of 100 feet and is 30 feet deep.\nOn 5 April 1971, another subdivision plat of this subdivision was prepared and on 28 June 1971 was recorded with the Registrar of Deeds in Hyde County. On this map, the location of the boat ramp is indicated by an arrow and the word \u201cBEACH\u201d is written in the unsubdivided portion of the property.\nWhen the Floyds were marketing this subdivision, they distributed a flyer which advertised that one could \u201cFish from the 1 mile of Island Shoreline,\u201d and that there was a \u201cBoat Ramp and Sandy Beach for use of lot owners.\u201d The map of the subdivision on this flyer has a handwritten notation indicating the location of the \u201cBEACH.\u201d At least one of the plaintiffs was given a copy of this flyer.\nOver the years, the lots identified in the subdivision map were sold to various parties; in addition, four parcels of land within the unsubdivided area were sold. These lands sold which were within the unsubdivided area have not been improved since they were sold.\nOn 2 June 1989, E. V. Floyd and defendant Anna F. Floyd contracted to sell their remaining interest in the subdivision to defendant Thomas E. Newman. Upon notice of this pending sale, plaintiffs brought this suit.\nOn 18 September 1991, each defendant filed a motion for summary judgment. On 30 January 1992, the trial judge granted summary judgment in favor of defendant Newman as to all plaintiffs, and summary judgment in favor of defendant Floyd as to all plaintiffs except Johnnie B. Lyttle and Wilson E. Anderson. From this order, plaintiffs appeal to our Court.\nPlaintiffs argue the trial court committed reversible error in allowing summary judgment in favor of defendant Newman and in favor of defendant Floyd (except as to the claims of plaintiffs Lyttle and Anderson) because there were genuine issues of fact as to whether the actions of the developers created a private easement in all of the unsubdivided portion of the subdivision in favor of the purchasers of the numbered lots therein. Particularly, plaintiffs assert that they, as lot owners in this subdivision, \u201chad private easements in all of the unsubdivided lands in the subdivision by dedication or estoppel from the developers.\u201d Plaintiffs rely upon the recorded plat which labels this unsubdivided land within the subdivision as \u201cBEACH.\u201d\nSummary judgment is appropriate only when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. North Carolina General Statutes \u00a7 1A-1, Rule 56 (1990). The moving party has the burden of establishing the lack of any triable issue, and may meet this burden by proving that an essential element of the opposing party\u2019s claim is nonexistent. All inferences of fact from the proof offered at the hearing must be looked at in the light most favorable to the nonmoving party. Mozingo v. Pitt County Memorial Hospital, 331 N.C. 182, 415 S.E.2d 341 (1992).\nAt issue in this case is whether an easement appurtenant was created and if so, the extent to which this easement exists. An easement appurtenant is an easement which attaches to, passes with, and is an incident of ownership of the particular tract of land; this easement may be created by dedication, may be either a formal or informal transfer, and may be either express or implied. Shear v. Stevens Building Co., 107 N.C. App. 154, 418 S.E.2d 841 (1992); Gibbs v. Wright, 17 N.C. App. 495, 195 S.E.2d 40 (1973); Spaugh v. Charlotte, 239 N.C. 149, 79 S.E.2d 748 (1954).\nAs indicated in Shear, 107 N.C. App. at 162, 418 S.E.2d at 846, our Supreme Court set out the applicable rules for the establishment of an appurtenant easement by the use of a plat map in Realty Co. v. Hobbs, 261 N.C. 414, 421, 135 S.E.2d 30, 35-36 (1964):\nWhere 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. (Citations omitted.) 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. (Citation omitted.) (Emphasis in original.) 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. (Citations omitted.) 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. (Citations omitted.) Thus, a street, park or playground may not be reduced in size or put to any use which conflicts with the purpose for which it was dedicated. (Citations omitted.)\nSee also Hinson v. Smith, 89 N.C. App. 127, 365 S.E.2d 166, disc. review denied, 323 N.C. 365, 373 S.E.2d 545 (1988), where an area designated as \u201cBeach\u201d on a recorded subdivision plat was held dedicated to the private use of the owners and purchasers of lots in the subdivision.\nThe record herein reveals that E. V. Floyd and Anna F. Floyd recorded the subdivision map upon which all of the purchasers of property in the subdivision (except George G. Williams and Mildred M. Williams and subsequent purchasers of their property) relied on 28 June 1971. This subdivision map sets out the subdivided lots for sale in the subdivision, and further sets out the location of the \u201cBEACH.\u201d The deeds held by all of the purchasers of homes in this subdivision (except the Williams\u2019 deed and subsequent purchasers of their property) refer to this subdivision map. Pursuant to Shear and Hinson, we have examined the contents of the subdivision map herein and the actions of E. V. Floyd and Anna F. Floyd in selling and conveying these lots in reference to this map, and we find that an easement has been created as to this area identified as the \u201cBEACH.\u201d We now address the extent of this easement.\nPlaintiffs argue that because the subdivision map refers to a \u201cBEACH\u201d area extending from the waterfront through the marshlands to the divided lots, this entire area should be considered the \u201cBEACH.\u201d Defendants argue that because the Williams\u2019 deed contains a specific reference to the \u201cBEACH\u201d with a more limited description, this description should control, and that therefore, the marshlands lawfully belong to Anna F. Floyd.\nIn Stegall v. Robinson, 81 N.C. App. 617, 344 S.E.2d 803, disc. review denied, 317 N.C. 714, 347 S.E.2d 456 (1986), our Court made reference to Reed v. Elmore, 246 N.C. 221, 98 S.E.2d 360 (1957), which discussed the performance of a proper title examination. In Reed, our Supreme Court quoted with approval from Finley v. Glenn, 303 Pa. 131, 154 A. 299 (1931):\nThe controlling factor ... is that the immediate grantors of both plaintiff and defendants were the same. When the latter came to examine the title which was tendered to them, it was of primary consequence that they should know whether their grantors held title to the land which they were to convey. They could determine that question only by searching the records for grants from them. . . . \u2018The weight of authority is to the effect that if a deed or a contract for the conveyance of one parcel of land, with a covenant or 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. The rule is based generally upon the principle that a grantee is chargeable with notice of everything affecting his title which could be discovered by an examination of the records of the deeds or other muniments of title of his grantor.\u2019 (Citations omitted.)\nReed, 246 N.C. at 231, 98 S.E.2d at 367. As noted in Stegall, Professor Webster speaks unkindly of this rule:\nIn view of the holding of Reed v. Elmore, a purchaser of real property in North Carolina must examine all fecorded \u201cout\u201d conveyances made by prior record titleholders during the periods when they respectively held title to the property to determine if any such owner has expressly imposed a restriction upon the use of the property. The difficulty in discovering all existent restrictive covenants that grow out of Reed v. Elmore is easily demonstrable. The case charges purchasers with constructive notice of all that \u201ccould be discovered by a search of the deeds and records, whether within the direct chain of conveyances or outside the direct chain of conveyances. . . . When this requirement is considered with the rule existent that deeds are construed as a whole and meaning is given to every part without reference to formal divisions of the deed, it becomes obvious that the title searcher is given an entirely impracticable and unreasonable task.\nJ. Webster, Webster\u2019s Real Property Law in N.C. \u00a7 503 at 687-88 (Hetrick and McLaughlin, rev. ed. 1988). Nonetheless, Reed remains good law today.\nTherefore, we find plaintiffs, at the time they originally took title to their lots, were on record notice that one lot in this subdivision had already been conveyed, and plaintiffs therefore were under a duty to investigate that conveyance to see what it might contain relative to any conditions, easements or dedications as to the re-, mainder of the subdivision. This was plaintiffs\u2019 duty regardless of the filing of the later subdivision map. Had plaintiffs done so, they would have discovered the easements specifically identified by the language in the Williams conveyance relative to the use of the boat ramp and the location and description of the crescent beach.\nWe note these easements specifically identified by the language in the Williams\u2019 deed and appearing on the later subdivision map are easements which have been granted to all homeowners in the subdivision, as all of the homeowners\u2019 deeds refer to this later subdivision map upon which the \u201cBEACH\u201d and boat ramp appear.\nWe find the trial judge properly allowed summary judgment in favor of defendant Newman and in favor of defendant Floyd (except as to the claims of plaintiffs Lyttle and Anderson) because no genuine issues of fact exist as to the extent of the easement which was created.\nThe decision of the trial court is affirmed.\nJudges ORR and McCRODDEN concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Carter, Archie & Hassell, by Sid Hassell, Jr., for plaintiffs-appellants.", "Ward & Smith, P. A., by John M. Martin, for defendant-appellee Thomas E. Newman.", "Davis & Davis, by George Thomas Davis, Jr., for defendant-appellee Thomas E. Newman.", "Rodman, Holscher, Francisco & Peck, P. A., by Edward N. Rodman, for defendant-appellee Anna F. Floyd." ], "corrections": "", "head_matter": "PATTI JEAN GREGORY, JOHNNIE B. LYTTLE, A. C. SEWELL, T. A. SEWELL and wife, NADINE S. SEWELL, EMILY G. TURNER, WILSON E. ANDERSON, and LIDA M. STAPLETON, Plaintiffs v. ANNA F. FLOYD and THOMAS E. NEWMAN, Defendants\nNo. 922DC454\n(Filed 2 November 1993)\n1. Easements \u00a7 9 (NCI4th)\u2014 reference to \u201cBEACH\u201d on map and in deeds \u2014 easement created\nAn easement appurtenant was created as to an area identified as the \u201cBEACH\u201d on subdivision maps where defendant and her husband recorded the subdivision map upon which all but two of the purchasers of property in the subdivision relied; this subdivision map set out the subdivided lots in the subdivision and further set out the location of the \u201cBEACH\u201d; and the deeds held by all the purchasers of homes in the subdivision, except the deed to one husband and wife, referred to this subdivision map.\nAm Jur 2d, Easements and Licenses \u00a7\u00a7 17, 22, 23.\n2. Deeds \u00a7 68 (NCI4th) \u2014 conveyance of one lot in subdivision\u2014 duty of subsequent purchaser to investigate prior conveyance\u2014 notice of easement to subsequent purchaser\nPlaintiffs, at the time they originally took title to their lots, were on record notice that one lot in the subdivision had already been conveyed, and plaintiffs were therefore under a duty, regardless of the filing of the later subdivision map, to investigate that conveyance to see what it might contain relative to any conditions, easements, or dedications as to the remainder of the subdivision. Had plaintiffs done so, they would have discovered the easements specifically identified by the language in the prior deed and would have known that, though the map referred to a \u201cBEACH\u201d area extending from the waterfront through marshlands to the divided lots, the deed contained a specific reference to the \u201cBEACH\u201d with a more limited description.\nAm Jur 2d, Covenants, Conditions and Restrictions \u00a7\u00a7 304-310.\nAppeal by plaintiffs from order entered 30 January 1992 by Judge Hallett Ward in Hyde County District Court. Heard in the Court of Appeals 13 April 1993.\nCarter, Archie & Hassell, by Sid Hassell, Jr., for plaintiffs-appellants.\nWard & Smith, P. A., by John M. Martin, for defendant-appellee Thomas E. Newman.\nDavis & Davis, by George Thomas Davis, Jr., for defendant-appellee Thomas E. Newman.\nRodman, Holscher, Francisco & Peck, P. A., by Edward N. Rodman, for defendant-appellee Anna F. Floyd." }, "file_name": "0470-01", "first_page_order": 500, "last_page_order": 506 }