{ "id": 4158870, "name": "Z.A. SNEEDEN'S SONS, INC., Plaintiff v. ZP No. 116, L.L.C., Defendants and Third-Party Plaintiff, AND LOWE'S HOME CENTERS, INC., AND MCDONALD'S CORPORATION, Defendants v. STUART SNEEDEN AND Z.A. SNEEDEN, L.L.C., Third-Party Defendants and Third-Party Plaintiffs v. JEFFREY ZIMMER, Third-Party Defendant", "name_abbreviation": "Z.A. Sneeden's Sons, Inc. v. ZP No. 116, L.L.C.", "decision_date": "2008-05-06", "docket_number": "No. COA07-1031", "first_page": "90", "last_page": "101", "citations": [ { "type": "official", "cite": "190 N.C. App. 90" } ], "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": "649 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639270 ], "year": 2007, "pin_cites": [ { "page": "661", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0658-01" ] }, { "cite": "326 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "264", "parenthetical": "citation and quotation omitted" }, { "page": "264", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724054 ], "year": 1985, "pin_cites": [ { "page": "146", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0143-01" ] }, { "cite": "413 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "298", "parenthetical": "citation omitted" }, { "page": "436" }, { "page": "298" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523703 ], "year": 1992, "pin_cites": [ { "page": "435", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0432-01" ] }, { "cite": "243 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "409", "parenthetical": "citations omitted" }, { "page": "409" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552082 ], "year": 1978, "pin_cites": [ { "page": "188", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0185-01" ] }, { "cite": "75 S.E. 719", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1912, "pin_cites": [ { "page": "720", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "160 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270270 ], "year": 1912, "pin_cites": [ { "page": "19-20", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/160/0017-01" ] }, { "cite": "133 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "472", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "260 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575708 ], "year": 1963, "pin_cites": [ { "page": "598", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0587-01" ] }, { "cite": "316 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "270", "parenthetical": "citation and quotation omitted" }, { "parenthetical": "emphasis original" }, { "page": "270" } ], "opinion_index": 0 }, { "cite": "311 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683743 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "249", "parenthetical": "citation and quotation omitted" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0245-01" ] }, { "cite": "199 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "10", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "283 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560241 ], "year": 1973, "pin_cites": [ { "page": "730", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0714-01" ] }, { "cite": "560 S.E.2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219969, 220200, 219983, 219888, 220082 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0283-03", "/nc/355/0283-02", "/nc/355/0283-05", "/nc/355/0283-04", "/nc/355/0283-01" ] }, { "cite": "557 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 81", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363747 ], "year": 2001, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0081-01" ] }, { "cite": "293 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "170", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568700 ], "year": 1982, "pin_cites": [ { "page": "361", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0357-01" ] }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "881" }, { "page": "881", "parenthetical": "citation and quotation omitted" }, { "page": "881" }, { "page": "882" } ], "opinion_index": 0 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "16" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0001-01" ] }, { "cite": "185 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212179 ], "year": 2007, "pin_cites": [ { "page": "672", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0668-01" ] } ], "analysis": { "cardinality": 1025, "char_count": 27445, "ocr_confidence": 0.744, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.35574545079655223 }, "sha256": "46a9af9683baf2d6ea11a99683651868b7ec09dc43e0f3c001257628a60b9f0b", "simhash": "1:07bfc03e26b6accb", "word_count": 4317 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "Z.A. SNEEDEN\u2019S SONS, INC., Plaintiff v. ZP No. 116, L.L.C., Defendants and Third-Party Plaintiff, AND LOWE\u2019S HOME CENTERS, INC., AND MCDONALD\u2019S CORPORATION, Defendants v. STUART SNEEDEN AND Z.A. SNEEDEN, L.L.C., Third-Party Defendants and Third-Party Plaintiffs v. JEFFREY ZIMMER, Third-Party Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nZ.A. Sneeden\u2019s Sons, Inc. and Z.A. Sneeden, L.L.C. (collectively, \u201cplaintiffs\u201d) appeal order entered granting summary judgment in favor of ZP No. 116, Lowe\u2019s Home Centers, Inc., McDonald\u2019s Corporation, and Jeffrey Zimmer (collectively, \u201cdefendants\u201d). We affirm in part, reverse in part, and remand.\nI. Background\nIn early 2000, Jeffery Zimmer and ZP No. 116 (\u201cZP\u201d) 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 \u201c[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.\u201d' To satisfy this condition, ZP was required to partially gain access to its property through adjoining property owned by Z.A. Sneeden\u2019s Sons, Inc. (\u201cSneeden\u201d).\nOn 26 October 2000, Sneeden, ZP, and Lowe\u2019s Home Centers, Inc. (\u201cLowe\u2019s\u201d) entered into an easement agreement (\u201ceasement\u201d), recorded in Book 2825, Page 276 of the New Hanover County Registry. The easement granted Lowe\u2019s and ZP a non-exclusive access easement for \u201cvehicular and pedestrian ingress and egress between Carolina Beach Road, South College Road, the Sneeden Property, the Zimmer Property, and the Lowe\u2019s Property . ...\u201d In consideration for the easement, Sneeden was paid $150,000.00. ZP and Lowe\u2019s also agreed to finance and complete the required construction needed to improve traffic flow on Sneeden Road.\nSubsequently, 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\u2019s, McDonald\u2019s, and other businesses located on Sneeden\u2019s property.\nOn 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\u2019s tract of land, which is adjacent to Sneeden\u2019s and Lowe\u2019s 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\u2019s property, owned by Wal-Mart Stores East, Inc. (\u201cWal-Mart\u201d). ZP complied with this condition and also installed an additional access driveway, which connected Sneeden Road to its property.\nOn 13 August 2003, Sneeden filed a complaint against ZP and Lowe\u2019s alleging: (1) ZP was attempting to extend its easement rights to Wal-Mart and Lowe\u2019s causing their invitees and guests to trespass on Sneeden Road; (2) Lowe\u2019s 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\u2019s, ZP\u2019s, and Lowe\u2019s intent based upon mutual mistake, mistake of a draftsman, and fraud; and (4) an unfair and deceptive trade practice claim against ZP.\nOn 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 \u201cobstructing or interfering with [ZP\u2019s] right to use, enjoyment, and benefits of such Access Easement Areas.\u201d 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.\nOn 30 August 2005, plaintiffs filed an additional motion to amend their complaint. Plaintiffs\u2019 motion stated, \u201cit 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.\u201d Plaintiffs\u2019 motion also sought to add two additional claims for relief: (1) an injunction to prohibit and prevent ZP\u2019s and Lowe\u2019s guests and invitees from entry upon plaintiffs\u2019 land and (2) a declaratory judgment as to the rights of the parties involving the private road connection from College Road to Lowe\u2019s business location. ZP and Lowe\u2019s subsequently filed amended answers again asserting the affirmative defenses of laches, estoppel, and waiver.\nOn 13 March 2006, the trial court ordered McDonald\u2019s Corporation to be joined as a necessary party. On 22 March 2006, plaintiffs filed a complaint against McDonald\u2019s Corporation as a party defendant. On 6 October 2006, McDonald\u2019s Corporation filed their answer and asserted the affirmative defense of laches, estoppel, and waiver. By 22 March 2007, defendants had moved for summary judgment.\nOn 30 April 2007, the trial court entered an order granting defendants\u2019 motions for summary judgment. The trial court dismissed ZP\u2019s counterclaims for slander of title and breach of contract without prejudice. Plaintiffs appeal.\nII. Issues\nPlaintiffs argue the trial court erred by granting defendants\u2019 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\u2019 land; (3) the easement agreement failed to contain a sufficient description; and (4) defendants attempted to extend the right to access and use Sneeden Road to a tract of land not named in the easement agreement.\nTTT- Standard of Review\nSummary 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 fact.\nA defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiffs 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.\nOnce 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.\nWe 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.\nWilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661 (2007) (internal citations and quotations omitted).\nIV. Equitable Estoppel\nPlaintiffs argue the trial court erred by granting defendants\u2019 motion for summary judgment because defendants trespassed on plaintiffs\u2019 land by constructing four exit lanes across plaintiffs\u2019 property.\nThe 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\u2019s and ZP easement rights over this tract of property.\nEquitable estoppel has been recognized in North Carolina as a valid legal doctrine. Whiteacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 16, 591 S.E.2d 870, 881 (2004). Equitable estoppel should be applied:\nwhen 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.\nId. at 17, 591 S.E.2d at 881 (citation and quotation omitted).\nNorth Carolina has also adopted the doctrine of quasi-estoppel. Id. at 18, 591 S.E.2d at 881. Quasi-estoppel \u201cdoes not require detrimental reliance per se by anyone, but is directly grounded instead upon a party\u2019s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.\u201d Godley v. County of Pitt, 306 N.C. 357, 361, 293 S.E.2d 167, 170 (1982) (citations omitted). \u201cIn comparison to equitable estoppel, quasi-estoppel is inherently flexible and cannot be reduced to any rigid formulation.\u201d Whiteacre, 358 N.C. at 18, 591 S.E.2d at 882. \u201c[T]he essential purpose of quasiestoppel ... is to prevent a party from benefitting by taking two clearly inconsistent positions.\u201d 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).\nHere, plaintiffs were paid and accepted $150,000.00 in consideration for the easement. ZP and Lowe\u2019s also agreed to pay all costs required to reconfigure the intersection of Sneeden Road and South College Road. ZP and Lowe\u2019s agreed to \u201crework the intersection\u201d 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\u2019s and Sneeden\u2019s 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\u2019s further agreed to maintain the newly configured roadway pursuant to the easement agreement. Subsequently, the general public, including plaintiffs\u2019 and defendants\u2019 tenants and their customers, began using Sneeden Road to access the shopping centers.\nPlaintiffs 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\u2019s access over the property in controversy. Id. This assignment of error is overruled. In light of our holding, it is unnecessary to review the remaining assignments of error addressing this tract of property.\nV. Easement Description\nPlaintiffs argue the trial court erred by granting defendants\u2019 motion for summary judgment because the easement did not contain a sufficient description. We disagree.\nWhen an easement is created by an express grant:\nNo 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.\nHensley 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 \u201cmust either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers.\u201d Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984) (citation and quotation omitted).\nA grant of an easement will only be held as void:\nwhen there is such an uncertainty appearing on the face of the instrument itself that the court \u2014 reading the language in the light of all the facts and circumstances referred to in the instrument \u2014 is yet unable to derive therefrom the intention of the parties as to what land was to be conveyed.\nId. (emphasis original) (citation omitted).\nIt 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.\nHere, the easement agreement granted ZP and Lowe\u2019s an access easement \u201cover and across the \u2018Lowe\u2019s Access Easement Area\u2019 \u201d 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 \u201cSneeden\u2019s Access Easement\u201d and \u201cLowe\u2019s Access Easement.\u201d\nPlaintiffs\u2019 main contention both in their brief and during oral arguments was that because certain calls were missing from the easement\u2019s 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.\nAlthough calls were missing within the easement\u2019s 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) (\u201cWhere 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.\u201d). Accordingly, Exhibit D3 determines whether the easement description is sufficient.\nExhibit 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 \u201cto derive therefrom the intention of the parties as to what land was to be conveyed.\u201d 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.\nVI. Easement Rights\nPlaintiffs also argue that the trial court erred in granting defendant\u2019s motion for summary judgment because defendants: (1) improperly granted rights over the Lowe\u2019s Access easement to Wal-Mart in a separate agreement between defendants\u2019 and Wal-Mart and (2) the easement between plaintiffs and defendants did not permit defendants to pave a portion of the Lowe\u2019s Access easement in any area unless the paved portion created passage off defendants\u2019 property directly onto Sneeden Road. We find genuine issues of material fact regarding plaintiffs\u2019 second argument.\nAs a general matter, easements are \u201cgranted 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.\u201d 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.\n\u201cAn easement deed is a contract. When such contracts are plain and unambiguous, their .construction is a matter of law for the courts.\u201d 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, \u201cwe are required to look to the instrument in its totality.\u201d Id. at 189, 243 S.E.2d at 409. \u201cWe 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.\u201d Id.\nPlaintiffs 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 \u201cgrantees\u201d and \u201cgrantors\u201d in this document refer to Wal-Mart and defendants, respectively. In relevant part, that document states:\nEach Party hereby grants to the other Parties easements for pedestrian and vehicular traffic in those strips of land on its (Grantor\u2019s) Parcel which are shown on the Site Plan and the Revised Site Plan (hereinafter collectively referred to as \u201cAccess Roads\u201d) for the purpose of providing ingress to and egress from Grantees\u2019 Parcels and each of N.C. Highway 132 (South College Road), the \u201cSneeden Access Road\u201d (as designed on the Revised Site Plan), and U.S. Highway 421 (Carolina Beach Road)[.]\nPlaintiffs 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 \u201cany person entitled to the use thereoff.]\u201d There is no dispute that Wal-Mart does not have rights to use the Lowe\u2019s Access easement or the area known 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.\nFurther, 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, \u201cat such time as all of the Wal-Mart Property is granted the benefit . . . and the use of Sneeden Access Road,\u201d 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\u2019s Access easement, it evidences the parties\u2019 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\u2019s property by virtue of the agreement between defendants and Wal-Mart.\nPlaintiffs next argue that defendants, by paving a portion of the Lowe\u2019s Access easement so that it adjoins Wal-Mart\u2019s property, exceeded the scope of the easement agreement.\n\u201c[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.\u201d Hundley v. Michael, 105 N.C. App. 432, 435, 413 S.E.2d 296, 298 (1992) (citation omitted). \u201c[P]laintiffs [only] have the right to use their property within the easement consistent with the purpose for which the easement was created.\u201d 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\u2019s Access easement that was not a direct access off of defendants\u2019 property.\nTwo provisions in the easement between the parties are illustrative. The first states that, the Lowe\u2019s Access easement was granted \u201cfor the sole purposes of allowing . . . (ii) such maintenance, repair, . . . and other improvements constructed by [defendants] ... [on the Lowe\u2019s Access easement].\" Here, defendants, by paving a portion of the Lowe\u2019s Access easement, improved that easement \u2014 fulfilling one of the \u201csole purposes\u201d of the easement. (Emphasis supplied). However, in the same section, the grant states that the easement \u201cshall be for the benefit of [defendants\u2019] [property or any part thereof[.]\u201d\nDefendants argue that providing an ingress and egress at WalMart\u2019s property benefits defendants\u2019 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\u2019s property and defendants\u2019 actions overburdened plaintiffs\u2019 property in a way not intended by the easement agreement.\nReading 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\u2019s Access easement that did not adjoin defendants\u2019 property. When the intent of the party is not clear from the written agreement, \u201cextrinsic 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.\u201d 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). \u201c[Ejxtrinsic evidence as to the circumstances under which a written instrument was made has been held to be admissible in ascertaining the parties\u2019 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.\u201d Id. at 147, 326 S.E.2d at 264 (citation and quotation omitted).\nBecause we are unable to determine the meaning of those terms, we reverse the trial court\u2019s 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\u2019s Access easement not adjoining their property and (2) rule on whether defendants\u2019 actions overburdened the easement over plaintiffs\u2019 property.\nVIL Conclusion\nBased upon plaintiffs\u2019 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\u2019s access over the 56 feet by 107 feet 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.\nFinally, we find genuine issues of material fact exist regarding whether defendants were allowed to pave a portion of the Lowe\u2019s Access easement that did not adjoin their property and whether defendants\u2019 actions overburdened plaintiffs\u2019 property. The trial court\u2019s order is affirmed in part, reversed in part, and remanded for proceedings not inconsistent with this opinion.\nAffirmed in Part; Reversed in Part; and Remanded.\nJudges HUNTER and McCULLOUGH concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "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 \u00c1mam, for defendant-appellee McDonald\u2019s Corporation.", "Hogue, Hill, Jones, Nash & Lynch, L.L.P., by Wayne A. Bullard and Anna J. Averitt, for defendant-appellees Lowe\u2019s Home Centers, Inc." ], "corrections": "", "head_matter": "Z.A. SNEEDEN\u2019S SONS, INC., Plaintiff v. ZP No. 116, L.L.C., Defendants and Third-Party Plaintiff, AND LOWE\u2019S HOME CENTERS, INC., AND MCDONALD\u2019S CORPORATION, Defendants v. STUART SNEEDEN AND Z.A. SNEEDEN, L.L.C., Third-Party Defendants and Third-Party Plaintiffs v. JEFFREY ZIMMER, Third-Party Defendant\nNo. COA07-1031\n(Filed 6 May 2008)\n1. Easements; Estoppel\u2014 consideration \u2014 mutual benefit\u2014 quasi-estoppel \u2014 summary judgment\nThe trial court did not err in an easement case by granting defendants\u2019 motion for summary judgment even though plaintiffs contend that defendants trespassed on plaintiffs\u2019 land by constructing four exit lanes across plaintiffs\u2019 property because: (1) quasi-estoppel does not require detrimental reliance per se by anyone, but is directly grounded instead upon a party\u2019s acquiescence or acceptance of payment or benefits by virtue of which that party is thereafter prevented from benefitting by taking two clearly inconsistent positions; (2) plaintiffs were paid and accepted $150,000 in consideration for the easement, and ZP and Lowe\u2019s also agreed to pay all costs required to reconfigure the intersection of the pertinent roads; and (3) plaintiffs are estopped from now asserting the easement did not give ZP and Lowe\u2019s access over the pertinent property when plaintiffs accepted payment for and have enjoyed the mutual benefits of the easement and reconfiguration of the pertinent road for over five years.\n2. Easements\u2014 summary judgment \u2014 sufficiency of description\nThe trial court did not err in an easement case by grant- \u25a0 ing defendants\u2019 motion for summary judgment even though plaintiffs contend the easement did not contain a sufficient description because: (1) although calls were missing within the easement\u2019s metes and bounds description, this omission does not cause the easement to become ineffective and void; (2) Exhibit D3 clearly showed the location and path of the easement in relation to the adjoining properties; and (3) the Court of Appeals was able to derive the intention of the parties as to what land was to be conveyed based upon a review of the easement and its attached exhibits.\n3. Easements\u2014 separate agreement \u2014 amendment to declaration \u2014 summary judgment\nThe trial court did not err in an easement case by granting defendants\u2019 motion for summary judgment even though plaintiffs contend defendants improperly granted rights over the Lowe\u2019s access easement to Wal-Mart in a separate agreement between defendants and Wal-Mart because: (1) the amendment to the declaration recognized that Wal-Mart had no rights at the time the document was executed and included a specific limitation that stated at such time as all of the Wal-Mart property is granted the benefit and the use of the access road, Wal-Mart will be required to pay a pro-rata share of costs to expand the road; and (2) the amendment evidenced the parties\u2019 intention 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 the pertinent property by virtue of the agreement between defendants and Wal-Mart.\n4. Easements\u2014 summary judgment \u2014 genuine issue of material fact \u2014 intention of parties \u2014 extrinsic evidence impermissible\nThe trial court erred in an easement case by granting defendants\u2019 motion for summary judgment based on the issue of whether the easement between plaintiffs and defendants permitted defendants to pave a portion creating passage off defendants\u2019 property directly onto the pertinent road, and the case is remanded to the trial court to hear parol evidence regarding the meaning of the terms of the easement and to rule on whether the easement between the parties allowed for defendants to pave a portion of the Lowe\u2019s access easement not adjoining their property, and rule on whether defendants\u2019 actions overburdened the easement over plaintiffs\u2019 property.\nAppeal by plaintiff, Z.A. Sneeden\u2019s 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.\nBoxley, 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.\nWard 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.\nHunton & Williams, L.L.P., by Robert C. Van \u00c1mam, for defendant-appellee McDonald\u2019s Corporation.\nHogue, Hill, Jones, Nash & Lynch, L.L.P., by Wayne A. Bullard and Anna J. Averitt, for defendant-appellees Lowe\u2019s Home Centers, Inc." }, "file_name": "0090-01", "first_page_order": 122, "last_page_order": 133 }