{
  "id": 11918705,
  "name": "RICKEY A. SWAIM v. ELMER LARRY SIMPSON and wife, JOAN K. SIMPSON",
  "name_abbreviation": "Swaim v. Simpson",
  "decision_date": "1995-11-21",
  "docket_number": "No. COA94-1205",
  "first_page": "863",
  "last_page": "865",
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      "cite": "127 S.E.2d 539",
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      "year": 1962,
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          "page": "541",
          "parenthetical": "stating that \"[w]hen the language ... is clear and unambiguous, effect must be given to its terms, and the court, under the guise of constructions, cannot reject what the parties inserted or insert what the parties elected to omit\""
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          "parenthetical": "stating that \"[w]hen the language ... is clear and unambiguous, effect must be given to its terms, and the court, under the guise of constructions, cannot reject what the parties inserted or insert what the parties elected to omit\""
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      "year": 1991,
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          "page": "440",
          "parenthetical": "stating that \"[wjhen an easement is created by an express conveyance and the conveyance is 'perfectly precise' as to the extent of the easement, the terms of the conveyance control\""
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          "parenthetical": "stating that \"[wjhen an easement is created by an express conveyance and the conveyance is 'perfectly precise' as to the extent of the easement, the terms of the conveyance control\""
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      "year": 1991,
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    {
      "cite": "101 N.C. App. 379",
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  "last_updated": "2023-07-14T16:17:04.771230+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judge MARTIN, Mark D., concurs.",
      "Judge JOHNSON dissents with a separate opinion."
    ],
    "parties": [
      "RICKEY A. SWAIM v. ELMER LARRY SIMPSON and wife, JOAN K. SIMPSON"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Chief Judge.\nDefendants argue that the trial court erred by increasing the extent and scope of the easement. They maintain that \u201c[n]o language exists in any of the deeds of record which suggest that the scope of easement was anything other than an access easement to and from the state road.\u201d Conversely, plaintiff argues that the grantors clearly \u201cintended to provide the owners . . . with an easement sufficient to maintain a residence, which would logically include access and utilities.\u201d\nThe purpose of an easement \u201cshould be set forth precisely.\u201d I Patrick K. Hetrick & James B. McLaughlin, Jr., Webster\u2019s Real Estate Law in North Carolina \u00a7 15-9 (4th ed. 1994). When the scope and extent of an easement is in debate, the following rules apply:\nFirst, the scope of an express easement is controlled by the terms of the conveyance if the conveyance is precise as to this issue. Second, if the conveyance speaks to the scope of the easement in less than precise terms (i.e., it is ambiguous), the scope may be determined by reference to the attendant circumstances, the situation of the parties, and by the acts of the parties in the use of the easement immediately following the grant. Third, if the conveyance is silent as to the scope- of the easement, extrinsic evidence is inadmissible as to the scope or extent of the easement. However, in this latter situation, a reasonable use is implied.\nId. at \u00a7 15-21; see also Williams v. Abernethy, 102 N.C. App. 462, 464-65, 402 S.E.2d 438, 440 (1991) (stating that \u201c[wjhen an easement is created by an express conveyance and the conveyance is \u2018perfectly precise\u2019 as to the extent of the easement, the terms of the conveyance control\u201d).\nHere, plaintiff was granted an express easement over Lot Six. The grant states that \u201c[a]lso conveyed herewith is an easement of right of way for ingress and egress to the above described tract to N. C. S. R. #1146, and which easement is more fully described in that conveyance recorded in Book 233, page 210 ... on April 30, 1982.\u201d The easement, in Book 233, page 210, is described as \u201cproviding access of ingress and egress to and from\u201d plaintiffs lots.\nGenerally, \u201conce an easement has been established, the easement holder must not change the use for which the easement was created so as to increase the burden of the servient tract.\u201d Webster\u2019s, supra, \u00a7 15-21 (italics omitted). In construing the easement to provide for the location, installation, and maintenance of facilities for domestic utilities, the trial court increased the use of the easement and the burden on the servient estate. Had the grantors intended a greater use, such use should have been specified. See Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962) (stating that \u201c[w]hen the language ... is clear and unambiguous, effect must be given to its terms, and the court, under the guise of constructions, cannot reject what the parties inserted or insert what the parties elected to omit\u201d). Because the deed identified the easement as one for ingress and egress, the trial court erred in expanding its use.\nThe trial court\u2019s order is reversed and this case is remanded for entry of summary judgment for defendants.\nReversed and remanded.\nJudge MARTIN, Mark D., concurs.\nJudge JOHNSON dissents with a separate opinion.",
        "type": "majority",
        "author": "ARNOLD, Chief Judge."
      },
      {
        "text": "Judge Johnson\ndissenting.\nI respectfully dissent from the majority\u2019s opinion in which they contend that a burden would be placed upon the servient estate by providing domestic utilities. This Court has previously held that a buried septic tank system does not constitute an encumbrance on the property of another; accordingly, the installation of underground utility lines would not increase the burden on the servient estate, nor the use of the easement. See Commonwealth Land Title Ins. Co. v. Stephenson, 101 N.C. App. 379, 399 S.E.2d 380 (1991).\nMoreover, employing the principles of ordinary reasoning and common sense leads one to conclude that a deed, which included an easement restricting a lot to residential use sufficient to maintain a residence, would necessarily provide the right to install utilities to the residential lot. In Sparrow v. Tobacco Co., 232 N.C. 589, 61 S.E.2d 700 (1950), the Court held that, when determining what uses of an easement are reasonably necessary, consideration must be given to the purposes or uses for which the easement was granted. It would be reasonably necessary that an easement for residential use include, not only the right to ingress and egress, but also the right to lay utility lines. Any other conclusion would render the lot restricted for residential use basically uninhabitable.\nI therefore vote to affirm the trial court\u2019s judgment.",
        "type": "dissent",
        "author": "Judge Johnson"
      }
    ],
    "attorneys": [
      "Morrow, Alexander, Task & Long, by C. R. \u201cSkip\u201d Long, Jr., for defendant appellants.",
      "Shore Hudspeth & Harding, P.A., by N. Lawrence Hudspeth, III, and Douglas R Mayo, for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "RICKEY A. SWAIM v. ELMER LARRY SIMPSON and wife, JOAN K. SIMPSON\nNo. COA94-1205\n(Filed 21 November 1995)\nEasements \u00a7 10 (NCI4th)\u2014 ingress and egress \u2014 expansion to allow for installation of utilities \u2014 error\nThe trial court erred in expanding an easement for ingress and egress to include the location, installation, and maintenance of facilities for domestic utilities.\nAm Jur 2d, Easements and Licenses \u00a7 81.\nCorrelative rights of dominant and servient owners in right of way for electric lines. 6 ALR2d 205.\nExtent and reasonableness of use of private way in exercise of easement granted in general terms. 3 ALR3d 1256.\nJudge Johnson dissenting.\nAppeal by defendants from order entered 29 August 1994 by Judge Samuel L. Osborne in Yadkin County District Court. Heard in the Court of Appeals 21 August 1995.\nPlaintiff filed this declaratory judgment action after defendants refused to allow the installation of underground utility and telephone lines on plaintiff\u2019s easement which runs across their property. Defendants acknowledged the existence of the easement, but maintained that it was limited to ingress and egress. The trial court granted summary judgment for plaintiff and stated that \u201cthe easement ... is hereby declared to include the right to locate, install and maintain all facilities for the provision of domestic utilities in furtherance of plaintiff\u2019s use of his property for residential purposes.\u201d Defendants appeal.\nMorrow, Alexander, Task & Long, by C. R. \u201cSkip\u201d Long, Jr., for defendant appellants.\nShore Hudspeth & Harding, P.A., by N. Lawrence Hudspeth, III, and Douglas R Mayo, for plaintiff appellee."
  },
  "file_name": "0863-01",
  "first_page_order": 897,
  "last_page_order": 899
}