#### J. A. SHINGLETON v. STATE OF NORTH CAROLINA and NORTH CAROLINA WILDLIFE RESOURCES COMMISSION.

(Filed 20 November 1963.)

1. Easements § 1—

An easement appurtenant is incident to and exists only in connection with a dominant estate owned by the same person, and passes with the title to the dominant estate; an easement in gross is a mere personal interest or right to use the land of another, is not appurtenant to any estate and attaches only to the person, and ends with the death of the owner of the easement.

2. Same—

Whether a deed creates an easement appurtenant or in gross must be determined by a construction of the language of the contract to ascertain ,the intention of the parties aided, if necessary, by the situation of the parties and the surrounding circumstances, and an easement which in its nature is appropriate and a useful adjunct of land owned by the grantee of the easement, in the absence of a ¡showing that 'the parties intended a mere personal right, will be declared ¡an easement appurtenant, regardless of the form in which such intention is expressed.

3. Same—

The fact that ¡the words “heirs and assigns” are not entered after the name of the grantee of an easement is not controlling in determining whether the easement granted is an easement appurtenant or in gross. G.S. 39-1.

4. Same— Deed held to convey easement appurtenant and not merely in gross.

Suit involving dispute between plaintiff and the Wildlife Resources Commission in regard to the ownership of certain lands was settled by an *452■agreement under which plaintiff: conveyed bo 'tine State a portion of the land in dispute and tlie State conveyed to plaintiff a portion, and thereafter a consent judgment was entered reciting generally the execution and delivery of the deeds, tihe payment of a sum of money by the ©bate in settlement, and ‘the action wias dismissed. The '.State’s conveyance was by quitclaim deed to plaintiff, Ms heirs and assigns and, -after the description, provided that the 'State reserved 'the right to use the roads existing on tibe tract conveyed and that plaintiff was granted the right to use roads existing on the other lands of the Commission for the purpose of ingress and egress by the most direct route. Held: The easement granted was an easement appurtenant and not in gross.

5. Easements § 8—

An easement will ordinarily foe construed to embrace all uses which are treasonably necessary iamd convenient in connection with the enjoyment of the dominant estate not only for those purposes to which it is devoted at the time of the grant but also- those ‘bo -which it may thereafter be reasonably devoted, without unnecessarily burdening the servient estate.

6. Same—

The grant of am easement 'appurtenant for ingress and egress to lands owned by ithe grantee, in the absence of a showing that -the lands of the grantee were used for business purposes, does not embrace the right of ingress a-nd egress by the public generally, but only to the grantee, his agents, servants, employees and licensees, and it is no violation of the grantee’s rights that he be required to give permission to those who use the easement in connection with the use and enjoyment of the dominant estate.

7. Easement § 6; State § 4—

I-n an action under the Declaratory Judgment Act to construe an easement granted by -the [State, judgment may not be entered enjoining the -State and its employees from interfering with the easement as defined by the court, since no action may foe maintained against the State or any agency thereof in tort or to restrain the commission of a tort.

8. State § 4; Public Officers § 9—

A public officer, even -though he assumes to act under the -authority and pursuant to the direction of the State, may be held personally liable by an individual whose rights are invaded by such officer in disregard of laiw.

9. State § 4; Courts § 3—

Controversy between an individual and the -State as to the extent of an .easement granted to the individual by the -State may be made the basis of a suit against the 'State in the 'Superior Court under -the Declaratory Judgment Act, since such suit involves title to realty within the purview of G.S. 41-10.1.

Appeal by defendants from Parker, J., April-May 1963 Session of Pender.

*453Action to construe the easement provisions of a deed under the Declaratory Judgment Act, G.S., Oh. 1, Art. 26.

Isaac C. Wright and George Rountree, Jr., for plaintiff..

Attorney General Bridón (by Parks H. Icenhour, Real Property Attorney); Corbett & Fisler; and White and Ay cock for defendants.

MooRE, J.

The State of North Carolina owns a large .body of land in Pender County, known as the Holly Shelter Wildlife Area. It is managed ,by the North Carolina Wildlife Resource® Commission. No public roads or highway® adjoin or oros® any portion of the Wildlife Area involved in this action. The roads within the area are owned by defendants and used in connection with wildlife management.

There was a dispute between defendants and plaintiff Slhingleton with respect to- the ownership and location of certain land®- within the boundaries of the Area. A suit was instituted, but before trial a compromise settlement was reached. Pursuant to the compromise agreement, .plaintiff herein conveyed to the State a portion of the land -in dispute 'and the State deeded to Shingleiton a portion. After these deeds were executed and delivered, a consent judgment wias entered reciting generally the execution and delivery of the deeds, the payment of a sum of money by the State, and the satisfactory settlement of the matter® in controversy, and the action was dismissed.

The said conveyance by the State to plaintiff herein was by quitclaim deed. It-conveyed to J. A. Shinigleton and “this heirs and assigns” 110 acres situate in Topsail Township, Pender County. This land is described by metes and bound’s, and lies entirely within, and a considerable distance from, the boundaries of (the Wildlife Area. Immediately below ¡the description are the following easement provisions:

> “The party of the first part reserves from this conveyance the right to maintain and use the roiads existing on the above described lands; and the said J. A. Slhingleton is hereby granted the right to- use the roads existing on otiher lands of the Wildlife Resource® Commission for the purpose of ingreeis and egress to .and from ¡the above described lands by the moat direct route.”

The present controversy “arose when the plaintiff’s (J. A. Shingle-ton’s) brother and other kinsmen were attempting to go .over (the) moad .in question which leads from the public road through the Wildlife Refuge of the defendants by the most direct route to the plaintiff’s land and . . . defendants placed -a locked gate at the entrance to- the road -in question and mounted armed guards to keep out all persons except plaintiff.”

*454Plaintiff -contends the -right-of-way granted him by the State is an easement appurtenant. Defendants -contend it is an. ©aisememt in gross ■and may fee used and enjoyed -only by J. A. Shimgleton personally. J. A. -Shingleton instituted tlhe present action feo> have determined his rights under the grant of easement, and makes allegations which, he contends, entitles him to injunctive -relief.

Triad by jury was waived -and -the judge made findings of fact and conclusions of law and entered judgment. It -was adjudged that the easement granted toy the State to- the plaintiff “'is- am unlimited easement appurtenant to plaintiff’s land, given to plaintiff for his use and the use of his -agents, servants, employees-, licensees, and this public generally Who- (have not been re-fused permission to- use- the easement toy the plaintiff,” and “¡that the defendants, their agents, servants and employees . . . are enj oin-ed from interfering toy gate ¡or otherwise with the use -of said easement -or roiad as herein provided.”

Am appurtenant easement is one which is attached to and- passes with the dominant tenement as -an appurtenance thereof; it is owned in connection -with other real estate ¡and as am incident -to such ownership. An easement in gross is not appurtenant to any estate in land and does not belong to any person by virtue of his ownership of an estate in other land, tout -iis a mere personal 'interest in -or right to- use -the land of -another; it is purely personal -and usually ends -with the death of the grantee. Davis v. Robinson, 189 N.C. 589, 127 S.E. 697. An easement appurtenant is in-cap-ab-le of existence ap-art from tine particular 1-amd to which it is annexed, it -exists only if the same person has title to the easement and the dominant -estate; it must bear some relation to- the use of the dominant -estate, and it must agree in- mature and quality to the thing to- w/hi-ch it is claimed to- be appurtenant. Am easement appurtenant is incident to an elstate, and inheres in -the land, concern© the premise©, pertains- -to- its enjoyment, -and passes with -the transfer of the title to the land, -including transfer -by descent. 17A Am. Jur., Easements, ss. 9, 11, pp. 624, 625, 627. If -am easement is -im gross there is no dominant tenement-; ¡an- easement is in gross and personal to -the grantee -because it iis- not appurtenant -to- -other premises. Ibid, pp. 626-7. A-n •easement -in gross -attache© to- the -person -and mot to land. 89 A. L. R. 1189.

The easement im the instant ease is by deed, which is of course a contract. “The controlling purpose o-f the -court -in construing a contract is to ascertain the -intention of the parties 'as of the time -the contract was made, and to do this consideration must be given to the purpose -to be accomplished, the -su-bj ©ct-matter ¡of the -contract, -and -the situation of the parties.” Weyerhaeuser Co. v. Light Co., 257 N.C. 717, *455 127 S.E. 2d 539. “If there is any doubt entertained as to the real intention, we should reject that interpretation which leads to injustice and «adopt that one which conforms more to the presumed meaning, because it does not produce unusual and unjust results.” Patrick v. Insurance Co., 176 N.C. 660, 97 S.E. 657; Hine v. Blumenthal, 239 N.C. 537, 547, 80 S.E. 2d 458. “Whether an easement is appurtenant or in gross is controlled mainly by the nature of the right and the intention of the panties creating it, and must be determined iby the fair interpretation of the grant . . . creating the easement, aided if necessary by the situation of the property and the surrounding circumstances. If it appears from such a construction of the grant . . . that the panties intended to create a 'right in the nature of an easement in the property retained for the benefit of the property granted, . . . such right will be deemed an easement -appurtenant and not in gross, regardless oif the form in which ©ucfh. intention is expressed. On the other hand, if it appears from isuch a construction that the parties intended to' create a right to be attached to -tire person to whom it was granted ..., it will be deemed to be -an easement in gross. An easement its appurtenant to land, if it is so in fact, although it its not declared to foe so in the deed or instrument creating it; and an easement, which in its nature is appropriate and a useful adjunct of land owned by the grantee of the easement, will be declared an ‘easement 'appurtenant,’ ¡and not ‘in gross,’ in the absence of a ©bowing that the parties intended it to be a mere personal right.” 28 C. J. S., Basements, s. 4c, pp. 636-7. In caste of doubt, an easement is presumed to- be appurtenant, and not in gross. 17A Am. Jur., Easements, s. 12, p. 628.

Defendants contend that the easement of ingress tatnd egress granted by -them its in .gross and personal to J. A. Shingleton. The grant does not use the term “appurtenant” nor the term “in gross.” It does not qualify plaintiff’s right by use of such terms as “personally” or “in person.” The language of the grant is that “the said J. A. Shingleton is •hereby granted the right . . .” The fact that the words “heirs 'and assigns” are not inserted after the name of the grantee does not control interpretation. G.S. 39-1; 28 C. J. S., Easements, s. 4c, p. 637. Defendants insist ¡that the consent judgment indicates that the easement was a right personal to plaintiff. We do not so- interpret it. The consent judgment makes no direct reference to the ea.sement, it merely refers to -the deed from ¡the State to plaintiff. The only writing bearing upon, the question is the provision in the deed. It will be observed that the deed, in addition to the .grant of easement to the plaintiff, reserves the .right to the State to “Maintain and use the roads existing on” the land conveyed to plaintiff. We do not understand ¡that defendants con*456tend that the reads across plaintiff's 110-aore toot can be used curly by tibe individual members of tibe Wildlife Resources .Commission and that tibe agents, servants, employees and lioense.es of the Commission are excluded. Yeti tibe reservation and tlhe grant are written in. parallel moid'es of expression. It seems clear that the reservation of easement is appurtenant tio tihe lands retained by the State. In tihe .absence of express .provision in the grant restricting the easement to the personal use of plaintiff, tihe presumption is that it is an easement appurtenant to plaintiffls 110-acre ¡tract. Moreover, the situation of filie property ¡a/nd tihe surrounding ¡circumstances indicate beyond, question ¡that an easement appurtenant was intended. The original controversy, in tihe settlement of which the deed wais given, .arose from conflicting claims oif rights ¡and title to lands. The record ¡does mot disclose that plaintiff Ibas ever claimed ¡any personal rights, apart from land ownership, in the Wildlife Area. The deed ¡conveys to plaintiff a ¡tract of land which, without some adequate -access over defendants’ lands, would 'be completely cut off from any public or private ro,ad. The grant of easement was so- clearly connected with .tire conveyance of the 110-aore tract ¡that in tihe deed it follows immediately tihe description of the land. The words “ingress” ¡and “egress” as used in tihe grant of easement show clearly it was intended that tihe easement is connected with and is to be used for tihe ¡benefit -of ¡the land. The roiad in question is appurtenant to tihe land in .fact, anid- leads from the land across the Wildlife Area tio tihe public road beyond. Apart from tihe ownership of the 110-acre tract, the easement is worthless. If plaintiff did not own this land he would have no business or interest of any kind within the Wildlife A^ea. The land was conveyed tio plaintiff in fee. It iis not reasonable tio ■conclude that the ¡State would undertake -to. grant and plaintiff to accept a right of .access to land which would end .at the death of -plaintiff and render the -land thereafter inaccessible ¡and worthless. Furthermore, it is not reasonable to- ¡suppose -that plaintiff could, ¡acting alone, cut ■and remove timber .from ¡his land or cultivate, harvest and remove ¡crops, or -make other beneficial use of the land. Certainly the parties did! not intend that plaintiff’s heirs, devisees ¡or -alssigns Should have no ¡ale-cess to -the ¡property. We hold that the easement granted by ¡the State to plaintiff is ¡appurtenant to plaintiff’s land described in the deed.

The court below .adjudged that the ¡State .granted “an unlimited easement appurtenant to- plaintiff’© land . . . for his use ¡and tihe use of his agents, servants, employees, licensees, ¡and the public generally who have not been refused permission to use this easement ¡by plaintiff.” In our ¡opinion tihe record -in this case does not ©how that the general public ¡should ibe -permitted to use the road. “It is -an established principle *457that -th-e unrestricted grant of a© easement gives -the grantee all su-ch rights as are incidental or -necessary to the reasonable and proper enjoyment -of the easement. A grant . . . of an easement in general terms is limited to >a use which is reasonably necessary .and loomveniant and as little burdensome to- the iservient estate ais possible for the use -contemplated. Am unlimited conveyance -of -an easement is in law a grant of unlimited reasonable use. Such grant is not restricted to use merely for the purposes of the -dominant estate .as -are reasonably required at .the díate of the grant, but the right may .be exercised by the owners of the dominant estate for any use to which the latter -estate may be subsequently devoted. Thus there may be -an increase in the volume and hind .of use of such an easement during the comise -o-f its enjoyment.” 12A Am. Jur., Easements, s. 113, pp. 720, 721. “The reasonable use and enjoyment of an easement is to be determined in the light of the situation of the property and the surrounding circumstances.” What is a reasonable use is a question of fact. Ibid., p. 721.

In -determining what uses of the easement are reasonably necessary and -convenient, consideration must be given to- the purposes for which the easement was granted. Sparrow v. Tobacco Co., 232 N.C. 589, 61 S.E. 2d 700. The owners of the servient estate may make any use of their property -and road not inconsistent with the reasonable use an-d enjoyment of the easement granted. Light Co. v. Bowman, 229 N.C. 682, 51 S.E. 2d 191. The easement was granted for the purpose of ingress and egress to and from p-laintiff’s 110-acre tract of land. The ingress -and egress must have -some relation, directly or incidentally, to the actual use -of the land -by the owner. The record iis silent ais to what use is being made -o-f the land, but it is safe to assume that in its position oif isolation it is not being used for any business which would reasonably require that the general public .have -access thereto. It is suggested in plaintiff’s brief that it is timberland or farmland. Plaintiff hais made- no showing which, justifies the us-e of the easement by the general public. Furthermore, defendants are maintaining a wil-dlife refuge on the lands -o-ver which the road passes. Access by the general public is -inimical to the maintenance of such refuge. I-t is no violation of plaintiff’s nights under his easement that he b-e required to give permission to those wh-o travel the road in -connection with the use and enj oymen-t of the -dominant estate. The wo-rdis “and the public generally who have not been refused permission to use this easement by the plaintiff,” will be stricken from -th-e judgment belo-w.

The court below decreed “that the defendants, their -agents, servants and employees, be, and they are -hereby enjoined from interfering -by lo-cked gate o-r otherwise with the use -of said -easement or road as here*458in. provided.”'This portion oí the judgment is mot sustained. The owner of property cannot maintain am notion against the State or any agency of the State in tort for damages to property (except -as provided 'by statute, G.S., Oh. 143, Art. 31). It follows that he cannot maintain an action .against it to restrain the commission of a tort. However, the landowner is not without a remedy. When public officers whose duty it is to supervise and direct a State agency attempt or threaten to invade the property rights of a citizen in disregard of law, they are not relieved of responsibility by the immunity oí the State from suit, even though they 'act or assume to act under (the authority and pursuant to the directions of the State. Schloss v. Highway Commission, 230 N.C. 489, 492, 53 S.E. 2d 517. In the instant action none of the officer's or agents of the State are parties. And even if they were p>arties, it should be borne in mind that the plaintiff in the use of the road in question may not impose unnecessary and unreasonable burdens upon the servient tenement. In the light of the meagre facts presented by the record, it would seem that defendants’ officers would be acting within defendants’ rights in intercepting and questioning users of the road to ascertain their .identity and status, ‘and to- determine whether they have permission for such use, and in preventing them from molesting or talcing game, wildlife or trees from the lands of defendants, should such be attempted. Furthermore, the maintenance of a gate, even, a looked gate, would not necessarily be inconsistent with plaintiff’s rights so long as the use of the road by himself and his agents, servants, employees and licensees is not unreasonably interfered with thereby. We Me not called upon on this appeal to. promulgate ‘rules for the guidance of the parties. But reasonable men can most certainly arrive at an. understanding that will protect the rights of all.

Defendants demur ore tenus to the complaint on the ground that the superior court is without jurisdiction of tire subject-matter of this action. They contend that the State 'has not consented to be .sued in an action such as that alleged. The demurrer' is overruled. G.S. 41-10.1, in pertinent part, provides that “Whenever the State of North Carolina ox .any agency or department thereof, .asserts a claim of title to land which has not been taken by condemnation and any individual . , . likewise asserts a claim of title to said land, such individual . . . may (bring .an action in the superior court . . . against the State or any such agency or department thereof for the purpose of determining such .adverse claims.”

Ah easement is an interest in land land is generally created by deed. Weyerhaeuser Co. v. Light Co., supra; Morganton v. Hudson, 207 N.C. 360, 177 S.E. 169; Combs v. Brickhouse, 201 N.C. 366, 160 S.E. 355. An *459easement -appurtenant to- property is property. Williams v. Highway Commission, 252 N.C. 772, 114 S.E. 2d 782. A private rigihit-of-wiay is an easement and is land. United States v. Welch, 217 U.S. 333 (1910). Every right to land is a title. If ® person hais the actual or constructive possession of property, or 'the right of possession, he has a title thereto-, though another person may be the owner. Roberts v. Wentworth, 59 Mass. 192 (1849); Brady v. Cartaret Realty Co., 90 A. 257 (N.J. 1914). In the instant case there are adverse -claims o>f title to land.

The judgment below wall be modified in accordance with this opinion.

Modified and affirmed.