{ "id": 8615403, "name": "SUE AGNES BORDERS v. ELVA ELIZABETH YARBROUGH", "name_abbreviation": "Borders v. Yarbrough", "decision_date": "1953-04-15", "docket_number": "", "first_page": "540", "last_page": "544", "citations": [ { "type": "official", "cite": "237 N.C. 540" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "160 S.E. 352", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625333 ], "opinion_index": 0, "case_paths": [ "/nc/201/0355-01" ] }, { "cite": "46 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8680990 ], "opinion_index": 0, "case_paths": [ "/nc/46/0013-01" ] }, { "cite": "30 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "8 S.E. 140", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "101 N.C. 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650777 ], "opinion_index": 0, "case_paths": [ "/nc/101/0408-01" ] }, { "cite": "148 S.E. 246", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628422 ], "opinion_index": 0, "case_paths": [ "/nc/197/0280-01" ] }, { "cite": "62 S.E. 2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596944 ], "opinion_index": 0, "case_paths": [ "/nc/233/0026-01" ] }, { "cite": "174 La. 586", "category": "reporters:state", "reporter": "La.", "case_ids": [ 10024448, 5421854 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/so/141/0067-01", "/la/174/0585-01" ] }, { "cite": "162 S.E. 727", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626253 ], "opinion_index": 0, "case_paths": [ "/nc/202/0344-01" ] }, { "cite": "19 S.E. 2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626799 ], "opinion_index": 0, "case_paths": [ "/nc/221/0178-01" ] }, { "cite": "64 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8680903 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/64/0001-01" ] } ], "analysis": { "cardinality": 555, "char_count": 11474, "ocr_confidence": 0.502, "pagerank": { "raw": 4.799901246108855e-07, "percentile": 0.9312768813934712 }, "sha256": "6a88b516a294762f4220fa3dd4c2725e516ebe162bd50c343742a06dd0deb304", "simhash": "1:83b3e7410e21a509", "word_count": 1977 }, "last_updated": "2023-07-14T15:56:56.799237+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SUE AGNES BORDERS v. ELVA ELIZABETH YARBROUGH." ], "opinions": [ { "text": "Pakkeb, J.\nThe appellant in her brief makes only these contentions: First, that the description of an easement in the deed is too uncertain, vague and indefinite to permit identification with reasonable certainty of an easement; that the claimed easement is not apparent; and that the plaintiff does not allege in her complaint that her right to run a sewer line across defendant\u2019s lot is a way of necessity.\nAn easement is an interest in land, and is generally created by deed. Mordecai Law Lectures, Vol. 1, p. 464; Norfleet v. Cromwell, 64 N.C. 1; Thompson v. Umberger, 221 N.C. 178, 19 S.E. 2d 484. G.S. 47-27 provides for the recordation of deeds of easements. \u201cGrantees take title to lands subject to duly recorded easements which have been granted by their predecessors in title. G.S. 47-27; Walker v. Phelps, 202 N.C. 344, 162 S.E. 727; Norfleet v. Cromwell, 64 N.C. 1; Burgas v. Stoutz, 174 La. 586, 141 So. 67; J. T. Donohue Realty Co. v. Wagner, supra; 28 C.J.S., Section 24, p. 676, et seq.\u201d Waldrop v. Brevard, 233 N.C. 26, 62 S.E. 2d 512. To the same effect, 17 Am. Jur., Easements, Sec. 132.\n\u201cWith reference to the manner of grant, the rule is that in describing an easement, all that is required is a description which identifies the land that is the subject of the easement and expresses the intention of the parties. No set form or particular words are necessary to grant an easement. As a general rule, any words clearly showing the intention to grant an easement which is by law grantable are sufficient. In easements, as in deeds generally, the intention of the parties is determined by a fair interpretation of the grant.\u201d 17 Am. Jur., Easements, Sec. 25.\n\u201cAn easement may be created by express grant. No 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.\u201d 28 C.J.S., Easements, Sec. 24.\n\"It is stated in 110 A.L.R., Annotation p. 175 \u201cwhere the grant of an easement of way does not definitely locate it, it has been consistently held that a reasonable and convenient way for all parties is thereby implied, in view of all the circumstances\u201d (Citing numerous authorities); and also at p. 178 \u201cIt is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant.\u201d\nThe creation of an easement by deed must not be so uncertain, vague and indefinite as to prevent identification with reasonable certainty. Gruber v. Eubank, 197 N.C. 280, 148 S.E. 246; Thompson v. Umberger, supra.\nIn Patton v. Educational Co., 101 N.C. 408, 8 S.E. 140, a deed in the defendant\u2019s chain of title contained this clause: \u201cWith the following reservation, that is to \u00e1ay, the said M. M. Patton reserves 33 feet for a street running from the cross street down L. Clayton\u2019s fence to J. P. Jordan\u2019s fence, thence up Jordan\u2019s fence to the street that leads down to M. M. Patton\u2019s house.\u201d Patton\u2019s deed to Jordan contained the following clause: \u201cAnd further, that the street now opened up through to the college land, thirty-three feet wide, shall be kept open.\u201d This Court said: \u201cThe reservation is not-vague and uncertain, as in Waugh v. Richardson, 30 N.C. 471, and McCormick v. Monroe, 46 N.C. 13, relied on by defendants.\u201d\nWe have examined the original record in Bender v. Tel. Co., 201 N.C. 355, 160 S.E. 352. The description in the conveyance of the right of way, an easement in land, is as follows: \u201cI hereby grant unto the said company, its associated and allied companies, their respective successors, assigns, lessees and agents, the right, privilege and authority to construct, reconstruct, operate and maintain lines of telephone and telegraph, consisting of such poles, wires, cables, conduits, guys, anchors and other fixtures and appurtenances as the grantee may from time to time require, upon, across and/or under the property which I own or in which I have any interest in the Township of Nutbush, County of Warren and State of North Carolina, bounded on the East by R. J. Bender; on the South by Peter Seaman; on the West by Mrs. Henry Bender, and on the North by Prances Taylor, and upon and along the roads, streets or highways adjoining the said property, etc.\u201d This Court said in that case : \u201cThe description in the conveyance of the right-of-way, an easement in land, is sufficiently definite and certain.\u201d\nLet us apply the law to the facts. A deed in the defendant\u2019s chain of title, properly recorded, and specifically referred to in the deed- to the defendant states \u201cthis lot is sold subject to an easement across the same for a sewerage line running from lot No. 5 to the disposal in the street. This shall be a perpetual easement over this lot.\u201d The defendant took title to lot No. 6 subject to this duly recorded easement, which had been granted by her predecessor in title. The description in the deed identifies lot No. 6 as the subject of the easement, and expresses the intention of the parties that a sewerage line shall run from lot No. 5 over lot No. 6 to the disposal in the street. The deed describes with exactness the dominant and servient tenements.\nThe complaint alleges: \u201cThat the sewerage lines of the plaintiff and defendant join at a point on the aforesaid lot No. 6 and a common sewerage line ran to the disposal in the street; that this condition existed before the plaintiff acquired the aforesaid lot No. 5 and before the defendant acquired the aforesaid lot No. 6, and was in accordance with the perpetual easement over the said lot No. 6 in favor of the said lot No. 5; that this condition continued to exist until early in June 1952.\u201d In June 1952 the defendant disconnected plaintiff\u2019s line. This user of a reasonable way for a sewerage line by tbe owner of lot No. 5, tbe dominant tenement, across lot No. 6 to tbe disposal in tbe street, acquiesced in by tbe owner or grantor of tbe servient estate, lot No. 6, sufficiently locates tbe way, wbicb will be deemed to be tbat wbicb was intended by tbe grant of tbe easement.\nTbe description in tbe deed of tbe easement for a sewerage line in tbis case is sufficiently definite and certain and we so bold.\nThe facts in Gruber v. Eubank, supra, relied upon by the defendant, and Thompson v. Umberger, supra, are distinguishable.\nTbe plaintiff having an easement created by deed does not have to allege nor contend for a way by necessity. Under tbe facts of tbis case it is immaterial whether tbe easement is apparent or not.\nTbe demurrer was properly overruled, and tbe defendant\u2019s assignment of error is not tenable.\nAffirmed.", "type": "majority", "author": "Pakkeb, J." } ], "attorneys": [ "Horn & West for plaintiff, appellee.", "Horace Kennedy for defendant, appellant." ], "corrections": "", "head_matter": "SUE AGNES BORDERS v. ELVA ELIZABETH YARBROUGH.\n(Filed 15 April, 1953.)\n1. Easements \u00a7 1\u2014\nAn easement is an interest in land, and is generally created by deed.\n2. Easements \u00a7 6\u2014\nGrantees take title to land subject to duly recorded easements which have been granted by their predecessors in title. G.S. 47-27.\n3. Easements \u00a7 1\u2014\nThe creation of an easement by deed must not be so uncertain, vague and indefinite as to prevent identification with reasonable certainty.\n4. Same \u2014 User of reasonable easement, acquiesced in by owner of servient tenement, held to locate with sufficient certainty easement granted by deed.\nThe deed to defendant stated that the lot was subject to a perpetual easement across same for a sewerage line running \u201cfrom lot No. 5 to the disposal in the street.\u201d Prior to the execution of the deed to defendant the sewerage line across defendant\u2019s lot had been constructed, and was used for some time after defendant acquired title to lot No. 6. Held: The dominant and servient tenements were identified, and the user of the easement, acquiesced in by the owner of the servient estate, locates the way with sufficient certainty, and therefore the description in the deed is sufficiently definite and certain to create the easement, irrespective of any way of necessity or whether the easement is apparent or not.\nAppeal by defendant from Crisp, Special Judge, September Civil Term, 1952, of Cleveland.\nThis is a civil action to have the plaintiff adjudged the holder of a perpetual easement for sewerage purposes over the defendant\u2019s land; to enjoin the defendant from interfering with the plaintiff\u2019s use of the alleged easement, and for compensatory and punitive damages because of defendant\u2019s acts in interfering with the use of the alleged easement causing sewerage to back up in plaintiff\u2019s house.\nThe complaint in substance alleges: The plaintiff and the defendant are owners in fee simple of adjoining lots on the west side of Churchill Drive in Shelby, North Carolina, the plaintiff owning lot No. 5 and the defendant lot No. 6 of Beam Bros, property known as \u201cBeaumonde\u201d; a plat of which is properly recorded in the public registry of Cleveland County. Plaintiff's deed, properly recorded is dated 1 November 1951. Defendant's deed properly recorded is dated 1 February 1952.\nImmediately after the description in the deed to the defendant of lot No. 6 by metes and bounds appears the following: The same being the property conveyed 11 October, 1951, to Berender and wife by Gardner and wife, as will appear of record in the Register of Deeds Office of Cleveland County, reference being made to said deed for further identification and description of the property: \u201cSubject to the restrictions and provisions contained in the deed above referred to, reference being made to same for full text thereof.\u201d The deed referred to recorded in Deed Book 6-P at p. 140 describes lot No. 6, and sets forth certain restrictions and easement, including the following: \u201cthis lot is sold subject to an easement across the same for a sewerage line running from lot No. 5 to the disposal in the street. This shall be a perpetual easement over this lot.\u201d\nBefore the plaintiff bought lot No. 5 and the defendant lot No. 6, a sewer line, pursuant to the easement granted, was run from lot No. 5 across lot No. 6; that the sewer lines of the plaintiff and defendant joined at a point on lot No. 6, and a common sewer line ran to the disposal in the street, and that this condition existed before and at the time plaintiff bought lot No. 5 and the defendant lot No. 6, and continued to exist until early June 1952.\nIn June 1952, the defendant had her sewer line uncovered, and discovered the joint sewer line; the defendant then had the plaintiff\u2019s sewer line disconnected, and started to take up the joint sewer line. Over the plaintiff\u2019s protests the defendant put in a different sewer line, not connecting with it the plaintiff\u2019s sewer line. The defendant then covered with dirt the lines, leaving the plaintiff\u2019s sewerage line loose in the dirt with no outlet to the disposal in the street. As a result sewage in August began backing up in plaintiff\u2019s house, and the defendant refuses to allow plaintiff to go upon her property to make necessary repairs.\nFrom a judgment overruling a demurrer to the complaint, the defendant appeals, assigning error.\nAffirmed.\nHorn & West for plaintiff, appellee.\nHorace Kennedy for defendant, appellant." }, "file_name": "0540-01", "first_page_order": 584, "last_page_order": 588 }