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    "judges": [
      "Judges GREENE and THOMAS concur."
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    "parties": [
      "K. MARK STEPHENS and wife, DENISE BUFF STEPHENS and V. KEN PFAHL and wife, SUSAN C. PFAHL, Plaintiffs v. MICHAEL J. DORTCH and wife, ELYN SIKES DORTCH, Defendants"
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        "text": "HUNTER, Judge.\nMichael J. Dortch and Elyn Sikes Dortch (\u201cdefendants\u201d) appeal the entry of judgment in favor of K. Mark Stephens, Denise Buff Stephens, V. Ken Pfahl and Susan C. Pfahl (\u201cplaintiffs\u201d). We affirm.\nOn 20 November 1930, an easement was created among owners of various lots in the Club Acres subdivision of Charlotte. The easement was created by an agreement (\u201cthe agreement\u201d) wherein the owners of a portion of lots 28 and 30 of Club Acres dedicated to the public and to the owners of the remainder of lots 28 and 30, and lots 6, 25, 26, 29, and 31 of Club Acres, their heirs and assigns, a tract of land on the westerly edge of lot 28 to be used as a roadway. The easement was described in the agreement as beginning at the common point of lots 6, 28 and 30 of Club Acres, and extending \u201cto a stake in the Northerly edge of Belvedere Avenue as now laid out.\u201d\nOn 4 October 1993, defendants acquired the westerly portion of lot 28 of Club Acres fronting on Belvedere Avenue and over which the 1930 easement passes. The defendants knew of the easement at the time they purchased the property. On 15 May 1996, defendants filed a Declaration of Withdrawal of Dedication with the Mecklenburg County Register of Deeds in which they sought to extinguish the easement over lot 28. Plaintiffs are owners of a portion of lots 6 and 28 of Club Acres. Plaintiffs maintain the easement is their only means of access to nearby Belvedere Avenue.\nOn 7 May 1999, plaintiffs filed this action seeking a declaration that defendants\u2019 Withdrawal of Dedication was void, and that they are entitled to use the easement described in the November 1930 agreement. Defendants filed a counterclaim, seeking a determination that plaintiffs are not entitled to use the easement, nor any other portion of defendants\u2019 property as a means of access to plaintiffs\u2019 property. Both parties filed motions for summary judgment.\nOn 11 August 2000, the trial court entered partial summary judgment in favor of plaintiffs. The trial court found: (1) the easement established by the agreement is an easement appurtenant to those properties for which the easement was created, including lots 6, 25, and 28 of Club Acres in which plaintiffs have an interest; and (2) the easement area has never been accepted for maintenance by a governmental entity, has never been used by the general public, and therefore, the Withdrawal of Dedication was effective as to members of the general public. The trial court concluded plaintiffs have an easement appurtenant for ingress and egress to their property, and that the easement is only available to and enforceable by the landowners of lots 6, 25, and 28 of Club Acres.\nThe trial court further concluded the easement extends from the common corner of all three lots to Belvedere Avenue as laid out at the time the agreement was entered. The court determined there remained an issue of material fact as to whether Belvedere Avenue is in the same location today as it was when the agreement was entered, and whether the easement extends to Belvedere Avenue as it exists-today.\nOn 14 August 2000, the trial court conducted a bench trial on the remaining issue of the easement\u2019s location. The trial court found that when plotted upon the ground, the easement as described in the agreement did not extend from the common boundary of lots 6, 28, and 30 all the way to the northern margin of Belvedere Avenue. The trial court determined the easement fell short of Belvedere Avenue by thirty feet. The trial court determined, however, that Belvedere Avenue exists today in the same location as it existed in November 1930, and that the call to \u201ca stake in the Northerly edge of Belvedere Avenue as now laid out\u201d was a call to a monument that governs over the distance stated in the agreement. The trial court concluded the easement extends to Belvedere Avenue as it exists today, and that it provides plaintiffs a means of ingress and egress to and from Belvedere Avenue. Defendants appeal.\nDefendants argue: (1) the trial court erred in concluding the Withdrawal of Dedication did not terminate plaintiffs\u2019 right to use the easement; and (2) the trial court erred in determining plaintiffs have a right to ingress and egress from their property to Belvedere Avenue by means of the easement.\nI.\nIn their first argument, defendants contend the trial court erred in determining their Withdrawal of Dedication did not operate to terminate plaintiffs\u2019 right to use the easement. The trial court concluded the Withdrawal of Dedication was not effective as to plaintiffs in its order for partial summary judgment. A review of the granting of summary judgment involves a two-part analysis of whether \u201c(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.\u201d Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d 660, 664 (2000), cert. denied, - U.S. \u2014 , \u2014 L. Ed. 2d (No. 01-69 filed 9 October 2001).\nDefendants argue the trial court\u2019s conclusion that the Withdrawal of Dedication did not terminate plaintiffs\u2019 easement is inconsistent with the plain language of N.C. Gen. Stat. \u00a7 136-96 (1999). That statute provides that when any piece of land dedicated to public use as a roadway has not been opened for and used by the public within fifteen years from its dedication, it shall be presumed to be abandoned by the public for the purpose for which it was dedicated. N.C. Gen. Stat. \u00a7 136-96. The statute states that upon the proper filing of Withdrawal of Dedication, \u201cno person shall have any right, or cause of action thereafter, to enforce any public or private easement therein.\u201d N.C. Gen. Stat. \u00a7 136-96. Defendants argue this language operates to terminate any rights plaintiffs had in the easement area. We disagree.\nThe trial court found that plaintiffs\u2019 easement is appurtenant to lots 6, 25, and 28 of Club Acres, in which they have an interest as landowners. An easement appurtenant is \u201c \u2018an easement created for the purpose of benefitting particular land. This easement attaches to, passes with and is an incident of ownership of the particular land.\u2019 \u201d Harry v. Crescent Resources, Inc., 136 N.C. App. 71, 74, 523 S.E.2d 118, 120 (1999) (citation omitted). Although defendants do not assign error to this particular finding of the trial court, we note the evidence supports the trial court\u2019s determination that plaintiffs have an easement appurtenant.\nIn Brown v. Weaver-Rogers Assoc., 131 N.C. App. 120, 505 S.E.2d 322 (1998), disc. review denied, 350 N.C. 92, 532 S.E.2d 523 (1999), this Court determined that a grant of an easement is reasonably interpreted to be an easement appurtenant where the grant includes such language as \u201c \u2018his heirs and assigns.\u2019 \u201d Id. at 123, 505 S.E.2d at 325. We noted the use of such words \u201cindicates an intent that the grant was not personal to [the grantee], but would extend beyond the life of [the grantee] and would run with the land.\u201d Id. We stated that more significantly, the grant did not mention the term \u201c . \u201cin gross[,]\u201d \u2019 \u201d nor did it . . \u2018qualify the grantee\u2019s rights by the use of such terms as \u201cpersonally\u201d or \u201cin person.\u201d \u2019 \u201d Id. at 123-24, 505 S.E.2d at 325 (citation omitted).\nLikewise, the agreement at issue here states the easement was dedicated to the grantees, \u201ctheir heirs and assigns.\u201d As in Brown, the agreement in this case does not include the term \u201cin gross,\u201d nor does it contain language such as \u201cpersonally,\u201d \u201cin person,\u201d or any other language suggesting the grantors intended to limit the easement rights to the named grantees. A reasonable interpretation of the agreement supports the trial court\u2019s finding that the easement is appurtenant to plaintiffs\u2019 land.\n\u201cOnce an easement appurtenant is properly created, it runs with the land and is not personal to the landowner.\u201d Id. at 123, 505 S.E.2d at 324. \u201cAn appurtenant easement is an incorporeal right attached to the land and incapable of existence separate and apart from the particular land to which it is annexed.\u201d Yount v. Lowe, 288 N.C. 90, 97, 215 S.E.2d 563, 567 (1975). Such an easement \u201cadheres to the land\u201d and \u201ccan be conveyed only by conveying the land involved.\u201d Frost v. Robinson, 76 N.C. App. 399, 400, 333 S.E.2d 319, 320 (1985).\nIn Butler Drive Property Owners Assn. v. Edwards, 109 N.C. App. 580, 427 S.E.2d 879 (1993), the petitioners filed a declaratory judgment action seeking a determination that the respondents had no right to ingress and egress over an easement which abutted respondents\u2019 property because the easement had never been dedicated to the general public. This Court drew a distinction between the issue of dedication to the general public and the issue of an easement appurtenant. We stated:\n[Petitioners have failed to address the fact that respondents are not merely members of the \u2018general public\u2019 or purchasers of a lot outside of the subdivision possessing no interest in [the easement area]. On the contrary, respondents are owners of a parcel of land with an appurtenant easement that gives them the right of ingress and egress over [the easement area].\nId. at 584, 427 S.E.2d at 881. Likewise, in the instant case, plaintiffs are owners of an easement appurtenant, and thus have rights to the easement above and beyond those of the general public.\nFurther, our Supreme Court has specifically held that N.C. Gen. Stat. \u00a7 136-96 \u201chas no application and a street may not be withdrawn from dedication, over objection of one owning a lot or lots within the subdivision, if the street \u2018be necessary to afford convenient ingress or egress to\u2019 such lot or lots.\u201d Janicki v. Lorek, 255 N.C. 53, 59, 120 S.E.2d 413, 418 (1961) (citations omitted). When it is established that a lot in a subdivision abuts the street sought to be withdrawn,\nit will be conclusively presumed that the street is \u2018necessary to afford convenient ingress or egress\u2019 to or from the lot, and, in the absence of consent by the lot owner to the withdrawal, G.S. \u00a7 136-96 has no application and the dedication may not be withdrawn irrespective of lapse of time or whether or not the street has been opened and used.\nId. at 60, 120 S.E.2d at 418.\nDefendants have not argued on appeal that plaintiffs do not need the easement for convenient ingress and egress t\u00f3 their property; therefore, under Janicki, the conclusive presumption is that the easement is necessary to provide convenient ingress and egress for plaintiffs\u2019 property, and any withdrawal under N.C. Gen. Stat. \u00a7 136-96 has no application to plaintiffs\u2019 easement appurtenant. The trial court correctly determined under N.C. Gen. Stat. \u00a7 136-96 that defendants\u2019 Withdrawal of Dedication did not extinguish plaintiffs\u2019 rights in the appurtenant easement as owners of the adjoining property. This argument is therefore overruled.\nII.\nIn their next argument, defendants maintain the trial court erred in determining plaintiffs have a right to ingress and egress over the easement to and from Belvedere Avenue. Specifically, they argue the evidence shows the easement falls short of Belvedere Avenue by thirty feet, and that the trial court erred in concluding the easement extends to Belvedere Avenue as it exists today. The trial court determined the exact location of the easement during the bench trial which followed the entry of partial summary judgment for plaintiffs. \u201c \u2018It is well established that where the trial court sits without a jury, the court\u2019s findings of fact are conclusive if supported by competent evidence, even though other evidence might sustain contrary findings.\u2019 \u201d Goodson v. Goodson, 145 N.C. App 356, 361, 551 S.E.2d 200, 204 (2001) (citation omitted).\nThe trial court\u2019s pertinent findings of fact are:\n3. The description of the area set aside in the Easement Agreement.. . called for a beginning point at the common boundary of Blocks 6, 28 and 30 of Club Acres and ran from the beginning point to a stake in Highland Road. The description then extended from the stake in Highland Road two courses and distances \u201cto a stake in the northerly edge of Belvedere Avenue as now laid out.\u201d\n4. When plotted upon the ground, the Easement Area . . . does not extend from the common boundary of Blocks 6, 28, and 30 of Club Acres to the northern margin of Belvedere Avenue as it exists today; the Easement Area falls approximately 30 feet short of Belvedere Avenue.\n5. Belvedere Avenue was dedicated prior to November 20, \u2018 1930, by a map of Midwood Subdivision dated 1914 and recorded in Book 230 at pages 96 and 97, Mecklenburg County Registry and a Map of St. Andrews Place dated August 1926 recorded in Map Book 3 at page 343, Mecklenburg County Registry.\n6. The description to Lots 1 and 2 of Midwood contained in a deed dated May 30, 1930 and recorded in Book 777 at page 417, Mecklenburg County Registry calls for \u201can iron stake in the northerly margin of Belvedere Avenue, said point being the southeastern comer of Lot No. 1 as shown on the Map of Midwood . . . .\u201d\n7. The eastern boundary of Lot No. 1 of Midwood is the western boundary of the defendant\u2019s [sic] property and includes the western boundary of the Easement Area.\n8. The Court cannot determine if Belvedere Avenue was actually constructed or paved in November of 1930, but based upon the other exhibits and testimony presented, Belvedere Avenue existed as a specifically dedicated right-of-way that had been staked in November of 1930 and it is still in the same location today.\nWe hold these findings conclusive on appeal, as they are supported by competent evidence. Findings of fact numbers three and four are undisputed. The agreement clearly states the easement was intended to run \u201cto a stake in the Northerly edge of Belvedere Avenue as now laid out.\u201d The trial court\u2019s finding that Belvedere Avenue was dedicated prior to the agreement is also supported by the evidence. A 1914 map of neighboring Midwood Subdivision clearly locates Belvedere Avenue. The description of Belvedere Avenue in finding of fact number six is supported by the 30 May 1930 deed to Midwood lots one and two contained in the record. Maps in the record also support the finding that the eastern boundary of lot number one in Midwood is also the western boundary of defendants\u2019 property, or lot 28.\nMost significantly, the court\u2019s finding that Belvedere Avenue existed as a specifically dedicated right of way that was staked in November 1930 and is in the same location today is supported by competent evidence. The agreement itself states that the easement area, \u201ca road opened down the Westerly edge of Lot 28,\u201d was in use at the time of the dedication, and the 30 May 1930 recorded deed to Midwood lot one contains a description of the northerly margin of Belvedere Avenue. Moreover, Clifford Clark Nielson (\u201cNielson\u201d), who testified as an expert in land surveying, opined that Belvedere Avenue today is in the same location as it was in November 1930.\nNielson testified that a comparison of the 1926 map of St. Andrew\u2019s Place and a recent tax map shows Belvedere Avenue is now in the same location as it was in 1926. He stated it was his opinion that Belvedere Avenue was never moved from the location depicted on the maps dated 1914 and 1926 referenced in the court\u2019s findings of fact. Nielson testified Belvedere Avenue has not been widened from its original sixty-foot right of way that was platted in 1926. He further testified that although Belvedere Avenue may not have been paved at the time of the agreement, it had been platted, and therefore existed as a right of way which was at some point paved in the same location as Belvedere Avenue today.\nWe hold this evidence to be competent evidence supporting the trial court\u2019s findings of fact, particularly the finding that Belvedere Avenue existed as a specifically dedicated right of way in 1930 and is still in the same location today. Although there may be evidence in the record to the contrary, where the trial court sits as a finder of fact, its findings must simply be supported by competent evidence. See Goodson, 145 N.C. App. at 361, 551 S.E.2d at 204.\nThe trial court concluded that although the description of distance in the agreement fell short of Belvedere Avenue, the call in the agreement to \u201ca stake in the Northerly edge of Belvedere Avenue as now laid out\u201d serves as a call to a monument and prevails over the stated footage. The trial court further concluded the agreement intended the easement to extend to Belvedere Avenue as it exists today for the purpose of providing ingress and egress to appurtenant lot owners.\nDefendants argue a stake is not sufficiently permanent to serve as a monument. However, the trial court found the call to a monument was a stake \u201cin the Northerly edge of Belvedere Avenue,\u201d which the court found to be in the same location today as at the time of the agreement in 1930. Thus, Belvedere Avenue, which has remained the same, may serve as a monument that governs over the distances described in the agreement. \u201c \u2018Where the calls are inconsistent, the general rule is that calls to natural objects control courses and distances. A call to a wall, or to another\u2019s line, if known or established, is a call to a monument within the meaning of this rule, as is a call to a highway.\u2019 \u201d Highway Comm. v. Gamble, 9 N.C. App. 618, 623-24, 177 S.E.2d 434, 438 (1970) (citation omitted) (emphasis omitted).\nWe further noted in Gamble that our Supreme Court has held that a roadway is \u201cof such permanent character as to become a monument of boundary.\u201d Id. at 624, 177 S.E.2d at 438 (citing Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603 (1950), Franklin v. Faulkner, 248 N.C. 656, 104 S.E.2d 841 (1958)). An artificial monument of boundary, such as a roadway, \u201cin case of conflict, is considered the superior call in reference to course and distance, and controls the same when it is properly identified and placed and called for in the deed as a corner of the land.\u201d Nelson v. Lineker, 172 N.C. 330, 333, 90 S.E. 251, 252 (1916).\nThe call in the agreement to the northerly edge of Belvedere Avenue governs over course and distance. We have previously held the trial court\u2019s finding that Belvedere Avenue exists today as it did in 1930 to be supported by competent evidence. Thus, Belvedere Avenue is a sufficiently permanent monument upon which the court could base its conclusion that the easement must extend to that roadway as it exists today. We note that with respect to the location of an easement, \u201c \u2018[t]he law endeavors to give effect to the intention of the parties, whenever it can be done consistently with rational construction.\u2019 \u201d Parrish v. Hayworth, 138 N.C. App. 637, 642, 532 S.E.2d 202, 206 (2000) (citation omitted), disc. review denied, 353 N.C. 379, 547 S.E.2d 15 (2001). We agree with the trial court that the agreement intended to provide the owners of the appurtenant lots with convenient ingress and egress for Belvedere Avenue. Having determined the trial court\u2019s findings are supported by competent evidence, and its findings support its conclusions of law, we affirm the entry of judgment for plaintiffs.\nAffirmed.\nJudges GREENE and THOMAS concur.\n. Neither party assigns error to the trial court\u2019s determination that defendants\u2019 Withdrawal of Dedication was effective as to the general public; however, we note that under Janicki, where an appurtenant landowner needing the easement for convenient ingress and egress objects to the withdrawal, as was the case here, N.C. Gen. Stat. \u00a7 136-96 \u201chas no application and a street may not be withdrawn from dedication\" absent the consent of the landowner. Janicki, 255 N.C. at 59, 120 S.E.2d at 418 (emphasis added).",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
    ],
    "attorneys": [
      "Kennedy Covington Lobdell & Hickman, LLP, by Roy H. Michaux, Jr., for plaintiff-appellees.",
      "Ervin & Gates, by Winfred R. Ervin, Jr., for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "K. MARK STEPHENS and wife, DENISE BUFF STEPHENS and V. KEN PFAHL and wife, SUSAN C. PFAHL, Plaintiffs v. MICHAEL J. DORTCH and wife, ELYN SIKES DORTCH, Defendants\nNo. COA00-1430\n(Filed 4 December 2001)\n1. Easements\u2014 appurtenant \u2014 withdrawal of dedication\u2014 ingress and egress\nThe trial court did not err by granting partial summary judgment in favor of plaintiffs and concluding that defendants\u2019 filing of a declaration of withdrawal of dedication under N.C.G.S. \u00a7 136-96 did not operate to terminate plaintiffs\u2019 right to use an easement over a portion of defendants\u2019 property, because: (1) plaintiffs have an easement appurtenant since the agreement states the easement was dedicated to the grantees, their heirs, and assigns; (2) once an easement appurtenant is properly created, it runs with the land and is not personal to the landowner; (3) plaintiffs as owners of an easement appurtenant have rights to the easement above and beyond those of the general public; and (4) N.C.G.S. \u00a7 136-96 has no application and a street may not be withdrawn from dedication, over objection of one owning a lot or lots within the subdivision, if the street is necessary to afford convenient ingress or egress to such lot or lots.\n2. Easements\u2014 right to ingress and egress \u2014 description of distance\nThe trial court did not err by determining that plaintiffs have a right to ingress and egress from their property to Belvedere Avenue by means of an easement over a portion of defendants\u2019 property even though defendant alleges the evidence shows that the easement falls short of the street by thirty feet, because: (1) the trial court\u2019s finding that the street existed as a specifically dedicated right of way that was staked in November 1930 and is in the same location today is supported by competent evidence; (2) although the description of distance in the agreement fell short of the street, the call in the agreement to a stake in the northerly edge of the street as now laid out serves as a call to a monument and prevails over the stated footage; and (3) the agreement intended the easement to extend to the street as it exists today for the purpose of providing ingress and egress to appurtenant lot owners.\nAppeal by defendants from judgment entered 24 August 2000 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 October 2001.\nKennedy Covington Lobdell & Hickman, LLP, by Roy H. Michaux, Jr., for plaintiff-appellees.\nErvin & Gates, by Winfred R. Ervin, Jr., for defendant-appellants."
  },
  "file_name": "0429-01",
  "first_page_order": 459,
  "last_page_order": 468
}
