{ "id": 8411512, "name": "MOORE'S FERRY DEVELOPMENT CORPORATION, Plaintiff v. CITY OF HICKORY, Defendant and Third-Party Plaintiff v. MOORE'S FERRY OWNERS ASSOCIATION, INC. (aka MOORE'S FERRY HOMEOWNERS ASSOCIATION, INC.), Third-Party Defendant", "name_abbreviation": "Moore's Ferry Development Corp. v. City of Hickory", "decision_date": "2004-09-21", "docket_number": "No. COA03-1271", "first_page": "441", "last_page": "448", "citations": [ { "type": "official", "cite": "166 N.C. App. 441" } ], "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": "271 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566003 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0294-01" ] }, { "cite": "12 S.E. 64", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "opinion_index": 0 }, { "cite": "107 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273906 ], "year": 1890, "opinion_index": 0, "case_paths": [ "/nc/107/0432-01" ] }, { "cite": "77 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682330 ], "year": 1877, "opinion_index": 0, "case_paths": [ "/nc/77/0188-01" ] }, { "cite": "31 S.E. 655", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1898, "opinion_index": 0 }, { "cite": "123 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657972 ], "year": 1898, "opinion_index": 0, "case_paths": [ "/nc/123/0138-01" ] }, { "cite": "340 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1986, "pin_cites": [ { "page": "513" }, { "page": "513", "parenthetical": "internal citations omitted" }, { "page": "513" }, { "page": "515" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523153 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "692" }, { "page": "693" }, { "page": "693" }, { "page": "695" }, { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0688-01" ] }, { "cite": "68 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1910, "opinion_index": 0 }, { "cite": "152 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271625 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/nc/152/0416-01" ] }, { "cite": "90 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "902-03", "parenthetical": "quoting Butler v. Tobacco Co., 152 N.C. 416, 68 S.E. 12 (1910)" }, { "page": "902-03" } ], "opinion_index": 0 }, { "cite": "243 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624967 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "370", "parenthetical": "quoting Butler v. Tobacco Co., 152 N.C. 416, 68 S.E. 12 (1910)" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0364-01" ] }, { "cite": "317 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526249 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0331-01" ] } ], "analysis": { "cardinality": 751, "char_count": 17870, "ocr_confidence": 0.745, "pagerank": { "raw": 6.8330052001468e-08, "percentile": 0.4169656223200658 }, "sha256": "3c95f7992313b17027302f6c95bf058c1bc38e335d4c08d428c0566a945b8b8c", "simhash": "1:c194e832b1257c42", "word_count": 2926 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and GEER concur." ], "parties": [ "MOORE\u2019S FERRY DEVELOPMENT CORPORATION, Plaintiff v. CITY OF HICKORY, Defendant and Third-Party Plaintiff v. MOORE\u2019S FERRY OWNERS ASSOCIATION, INC. (aka MOORE\u2019S FERRY HOMEOWNERS ASSOCIATION, INC.), Third-Party Defendant" ], "opinions": [ { "text": "THORNBURG, Judge.\nPlaintiff appeals from an order granting summary judgment in favor of defendant and denying a motion for summary judgment filed by plaintiff.\nFacts\nThe record tends to establish the following: Plaintiff is a North Carolina corporation in the real estate development business. In 1985, plaintiff owned a tract of land in Catawba County and developed it into a subdivision known as the Landing at Moore\u2019s Ferry (\u201cOld Moore\u2019s Ferry\u201d). In January 1986, Old Moore\u2019s Ferry was annexed into defendant\u2019s jurisdiction. Old Moore\u2019s Ferry included a guardhouse at the intersection of 3rd Street, N.W. and Icard Ferry Road. The guardhouse is located upon a small strip of land which was retained as a privately-held common area within the right-of-way for 3rd Street, N.W. Plaintiff organized a homeowners\u2019 association, Moore\u2019s Ferry Owner\u2019s Association (\u201cHomeowners\u2019 Association\u201d), on 28 April 1986. On or about 27 May 1994, defendant approved Phase VI of Old Moore\u2019s Ferry and in so doing accepted as a city street 42nd Avenue Drive, N.W., which ran from 3rd Street, N.W. in an easterly direction into the subdivision to its terminus as a cul-de-sac.\nOn or about 24 November 1998, defendant annexed a subdivision, also known as the Landing at Moore\u2019s Ferry' (\u201cNew Moore\u2019s Ferry\u201d), which was located to the east of the terminus of 42nd Avenue Drive, N.W. On 2 February 1999, defendant\u2019s City Council considered a petition to lift a moratorium on any further extension of 42nd Avenue Drive, N.W. The moratorium had been put in place to prevent extending the road to provide a connection between Old Moore\u2019s Ferry and New Moore\u2019s Ferry. The minutes from that City Council meeting reflect that members of Homeowners\u2019 Association opposed the extension of the street as they felt that the two neighborhoods were dissimilar. The City Council discussed granting a license to Homeowners\u2019 Association to build a guardhouse on 42nd Avenue Drive, N.W. at the intersection with 3rd Street, N.W. The City Council went on to approve the lifting of the moratorium and further approved a motion that directed defendant\u2019s attorney to draft a licensing agreement to govern the construction and maintenance of a guardhouse on 42nd Avenue Drive, N.W. The draft was to be brought back to the City Council for deliberation and vote.\nThe right-of-way for 42nd Avenue Drive, N.W. was subsequently extended and now runs from 3rd Street, N.W. in an easterly direction through Old Moore\u2019s Ferry and New Moore\u2019s Ferry to N.C. Highway 127. On 18 July 2000, defendant\u2019s City Council approved a revocable license agreement between defendant and Homeowners\u2019 Association authorizing the construction of a visitor\u2019s information center on 42nd Avenue Drive, N.W. at the intersection with 3rd Street, N.W. The revocable license agreement, entered into on 1 August 2000, authorizes Homeowners\u2019 Association \u201cto enter and go upon [42nd Avenue Drive, N.W.] to lay out, construct, and maintain a Visitor\u2019s Information Center . . . .\u201d Included in the license were the following conditions:\n2.[Homeowners\u2019 Association] may erect and fix in and upon [42nd Avenue Drive, N.W.] a Visitor\u2019s Information Center provided that:\na. Said Information Center in no way or manner restricts, prevents, or discourages the general public from using the road and right-of-way upon which the guardhouse is erected, generally known now as 42nd Avenue Drive, NW, Hickory, North Carolina.\nThe City shall review and approve any and all plans and specifications of said Information Center, but shall in no way be responsible for the construction or maintenance of same.\n1. [Homeowners\u2019 Association] shall, and hereby does, indemnify and save harmless the City and any and all of its agents, servants and employees from any and all liability for injuries to, or death of any individual as a result of the construction or maintenance of said Visitor\u2019s Information Center, and [Homeowners\u2019 Association] further does indemnify and save harmless the City and any of its agents, servants or employees from any and all suits or claims which arise or may arise as a result of the construction or maintenance of said Visitor\u2019s Information Center.\n2. The Visitor\u2019s Information Center shall be constructed and maintained in such a manner that it will in no way discourage, prevent, or restrict the general public from using the right of way upon which it is constructed. In addition thereto, there shall be no signs or devices to prevent or give the appearance that the Visitor\u2019s Information Center in any manner is attempting to prevent, discourage, or restrict the general public from using the right of way upon which it is located.\n3. The City shall have the right to come on or about the property referenced herein at any time to monitor the Visitor\u2019s Information Center to insure that it is constructed, maintained, and used for the specific purposes and subject to the specific conditions and restrictions as set forth herein.\n4. This is a purely revocable license and the City may, at any time, revoke same upon 30 days written notice of its intent to revoke.\n5. Upon revocation of this license agreement, [Homeowners\u2019 Association] shall, within 90 days of the date of said revocation, remove the Information Center and leave the property in the same condition it was in prior to construction of the Information Center.\nPlaintiff filed this action seeking to have the license revoked, the structure removed and damages imposed against defendant. Defendant answered and initiated a third-party complaint against Homeowners\u2019 Association for indemnification and removal of the structure should the trial court find for plaintiff. Plaintiff and defendant each moved for summary judgment on the matter. After a hearing, the trial court granted defendant\u2019s motion and denied plaintiff\u2019s motion. Plaintiff appeals.\nThe sole issue on appeal is whether the trial court erred by granting summary judgment on plaintiff\u2019s claim in favor of defendant. Plaintiff\u2019s claim was based upon the premise that it was unlawful for defendant to license Homeowners\u2019 Association to construct a structure in the public street right-of-way and that the structure created an obstruction of the right-of-way and a public nuisance. Plaintiff makes virtually identical arguments on appeal. Defendant argues on appeal that the structure was not a private obstruction or a public nuisance and that defendant had statutory authority to issue the license. After careful consideration of the record and briefs, we reverse and remand.\nSummary judgment is appropriate where \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003). The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Gray v. Hager, 69 N.C. App. 331, 317 S.E.2d 59 (1984).\nStatutory Authority\n\u201cThe town authorities hold the streets in trust for the purposes of public traffic and cannot, in the absence of statutory power, grant to anyone the right to obstruct the street to the inconvenience of the public, even for public purposes, and for private purposes not at all.\u201d Blowing Rock v. Gregorie, 243 N.C. 364, 370, 90 S.E.2d 898, 902-03 (1956) (quoting Butler v. Tobacco Co., 152 N.C. 416, 68 S.E. 12 (1910)). Defendant asserts that N.C. Gen. Stat. \u00a7\u00a7 160A-296(a)(6) and (8) provide statutory authority for the license at issue here.\nN.C. Gen. Stat. \u00a7 160A-296(aY6)\nN.C. Gen. Stat. \u00a7 160A-296(a)(6) provides:\n(a) A city shall have general authority and control over all public streets, sidewalks, alleys, bridges, and other ways of public passage within its corporate limits except to the extent that authority and control over certain streets and bridges is vested in the Board of Transportation. General authority and control includes but is not limited to:\n(6) The power to regulate, license, and prohibit digging in the streets, sidewalks, or alleys, or placing therein or thereon any pipes, poles, wires, fixtures, or appliances of any kind either on, above, or below the surface.\nN.C. Gen. Stat. \u00a7 160A-296(a)(6) (2003) (emphasis added). Defendant argues that the agreement is a license and that the structure in question can be classified as either a fixture or an appliance. Thus, defendant argues that this statute authorizes the granting of the license.\nOur courts have not previously found it necessary to address the meaning of \u201cappliance\u201d in the context of a city\u2019s control of its public streets. An \u201cappliance\u201d is \u201ca device or instrument, especially one operated by electricity and designed for household use.\u201d The American Heritage Dictionary 121 (2nd College ed. 1985). Clearly, neither this definition nor any other reasonable meaning of the word \u201cappliance\u201d can apply to the structure in question. Defendant\u2019s argument that the structure is an appliance fails.\nA \u201cfixture\u201d is \u201cpersonal property that is attached to land or a building and that is regarded as an irremovable part of the real property.\u201d Black\u2019s Law Dictionary 669 (8th ed. 2004). In Little v. National Service Industries, Inc., 79 N.C. App. 688, 340 S.E.2d 510 (1986), this Court quoted the definition of a fixture found in 1 Thompson on Real Property, \u201c \u2018[a] fixture has been defined as that which, though originally a moveable chattel, is, by reason of its annexation to land, or association in the use of land, regarded as a part of the land, partaking of its character ....\u2019\u201d Id. at 692, 340 S.E.2d at 513 (quoting 1 Thompson on Real Property, 1980 Replacement, \u00a7 55 at 179 (1980)). The factors to be examined in identifying fixtures include: \u201c(1) the manner in which the article is attached to the realty; (2) the nature of the article and the purpose for which it is attached to the realty; and (3) the intention with which the annexation of the article to the realty is made.\u201d Little, 79 N.C. App. at 692, 340 S.E.2d at 513 (internal citations omitted).\nIn addition to these tests, \u201cwhen additions are made to the land by its owner, it is generally viewed that the purpose of the addition is to enhance the value of the land, and the chattel becomes a part of the land.\u201d Id. (citing Belvin v. Paper Co., 123 N.C. 138, 31 S.E. 655 (1898); Moore v. Vallentine, 77 N.C. 188 (1877)). \u201cOn the other hand, where the improvement is made by one who does not own the fee, such as a tenant, the law is indulgent and, in order to encourage industry, the tenant is permitted \u2018the greatest latitude\u2019 in removing equipment which he has installed upon the land.\u201d Little, 79 N.C. App. at 693, 340 S.E.2d at 513 (citing Overman v. Sasser, 107 N.C. 432, 12 S.E. 64 (1890)). Further, \u201c[w]here the controversy is between parties connected to the transaction in some manner, as in a controversy between the owner of the land and the one who annexed the chattel, the subjective intent of the parties as evidenced by their words, conduct, or agreements, express or implied, is the relevant intent.\u201d Little, 79 N.C. App. at 693, 340 S.E.2d at 513.\nIn the instant case, the structure in question was erected in the public right-of-way by Homeowners\u2019 Association. Thus, the presumption that the structure was to become a part of the real property did not arise since the structure was not erected by the owner of the land. Also, we conclude that the subjective intent of the parties is relevant as plaintiff is the owner of the underlying land upon which this structure has been built.\n\u201cSummary judgment is generally not appropriate where intent or other subjective feelings are at issue.\u201d Little, 79 N.C. App. at 695, 340 S.E.2d at 514-15 (citing Feibus & Co., Inc. v. Construction Co., 301 N.C. 294, 271 S.E.2d 385 (1980)). \u201cThe rule that intent should generally be a question of fact for the jury does not mean, however, that it should always be so.\u201d Little, 79 N.C. App. at 695, 340 S.E.2d at 515.\nHere, the intent of the parties is not in dispute. This intent is evidenced by the terms of the license between the parties and the various responsibilities of the parties under the license. The structure was erected pursuant to a license that provided that the license was purely revocable and that defendant could at any time revoke same upon 30 days written notice of its intent to revoke. The license further provided: \u201cUpon revocation of this license agreement, [Homeowners\u2019 Association] shall, within 90 days . . . remove the Information Center and leave the property in the same condition it was in prior to construction . . . .\u201d During the term of the license, neither plaintiff nor defendant was responsible for the repair and maintenance of this structure even though it was on their property and right-of-way, respectively. By the terms of the license, Homeowners\u2019 Association was to \u201cindemnify and save harmless [defendant] . . . from any and all liability for injuries to, or death of any individual as a result of the construction or maintenance of said Visitor\u2019s Information Center, and . . . from any and all suits or claims which arise or may arise as a result of the construction or maintenance ....\u201d Thus, the terms of the license show that the parties never intended for the structure to become a part of the land so as to pass with the real property; the structure was to remain personal property. Accordingly, the structure cannot be classified as a fixture.\nAs we conclude that the structure is neither an appliance nor a fixture, N.C. Gen. Stat. \u00a7 160A-296(a)(6) does not provide defendant with statutory authority to permit Homeowners\u2019 Association to build in the street right-of-way. See Gregorie, 243 N.C. at 370, 90 S.E.2d at 902-03. We recognize that the determination of whether something qualifies as a fixture is a fact-specific inquiry. Given the clear intent of the parties to this license that the structure constructed in the public right-of-way be completely removable and the responsibility of Homeowners\u2019 Association, we limit our holding to the facts of this case.\nN.C. Gen. Stat. \u00a7 160A-296(aY8)\nDefendant also contends that N.C. Gen. Stat. \u00a7 160A-296(a)(8) confers statutory authority for the agreement in question. N.C. Gen. Stat. \u00a7 160A-296(a)(8) provides:\n(a) A city shall have general authority and control over all public streets, sidewalks, alleys, bridges, and other ways of public passage within its corporate limits except to the extent that authority and control over certain streets and bridges is vested in the Board of Transportation. General authority and control includes but is not limited to:\n(8) The power to grant easements in street rights-of-way as permitted by G.S. 160A-273.\nN.C. Gen. Stat. \u00a7 160A-296(a)(8) (2003). Homeowners\u2019 Association and defendant clearly labeled their agreement a license. A license is \u201ca permission, usually revocable, to commit some act that would otherwise be unlawful.\u201d Black\u2019s Law Dictionary 938 (8th ed. 2004). Whereas, an easement is \u201can interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose .... Unlike a lease or license, an easement may last forever . . . .\u201d Black\u2019s Law Dictionary 548 (8th ed. 2004).\nThe agreement between Homeowners\u2019 Association and defendant did not pass an interest in land, as would be the case with an easement; rather, it only gave permission to Homeowners\u2019 Association to build a structure. Also, the agreement was revocable for any reason upon 30 days written notice. We conclude that the agreement between defendant and Homeowners\u2019 Association is a license and thus, N.C. Gen. Stat. \u00a7 160A-296(a)(8) does not provide statutory authority for defendant to permit Homeowners\u2019 Association to place a structure in the street right-of-way.\nAs we find no statutory authority that permits defendant to authorize the placement of a structure in the public street right-of-way, we conclude that defendant was without authority to enter into the license agreement with Homeowners\u2019 Association. Due to this conclusion, we do not address whether the structure created an obstruction of the right-of-way and/or a public nuisance. We reverse the trial court\u2019s entry of summary judgment for defendant and remand for entry of summary judgment in favor of plaintiff.\nReversed and remanded.\nJudges HUDSON and GEER concur.", "type": "majority", "author": "THORNBURG, Judge." } ], "attorneys": [ "Rufus F Walker, Jr., for plaintiff-appellant.", "Gorham, Crone, Mace & Green, by John W. Crone, III, for defendant-appellee.", "Shumaker, Loop & Kendrick, LLP, by Steven A. Meckler, for third-party defendant." ], "corrections": "", "head_matter": "MOORE\u2019S FERRY DEVELOPMENT CORPORATION, Plaintiff v. CITY OF HICKORY, Defendant and Third-Party Plaintiff v. MOORE\u2019S FERRY OWNERS ASSOCIATION, INC. (aka MOORE\u2019S FERRY HOMEOWNERS ASSOCIATION, INC.), Third-Party Defendant\nNo. COA03-1271\n(Filed 21 September 2004)\nCities and Towns\u2014 control of streets \u2014 easements and licenses\nSummary judgment should not have been granted for a city in an action seeking revocation of a license for a homeowner\u2019s association to build a visitor\u2019s center on the right-of-way of a newly annexed street. Although the city claimed statutory authority to grant easements and to license appliances and fixtures on rights of way, this was not an easement arid the building was neither an appliance (a device or instrument) nor a fixture (it was not built by the owner of the land and the terms of the license indicate that it was to remain personal property and not pass with the land). N.C.G.S. \u00a7 160A-296(a)(6); N.C.G.S. \u00a7 160A-296(a)(8).\nAppeal by plaintiff from order entered 9 May 2003 by Judge Timothy L. Patti in Catawba County Superior Court. Heard in the Court of Appeals 27 May 2004.\nRufus F Walker, Jr., for plaintiff-appellant.\nGorham, Crone, Mace & Green, by John W. Crone, III, for defendant-appellee.\nShumaker, Loop & Kendrick, LLP, by Steven A. Meckler, for third-party defendant." }, "file_name": "0441-01", "first_page_order": 471, "last_page_order": 478 }