Mason v. Andersen

*571 ARNOLD, Judge. The question presented by this appeal is whether the language in the Masons’ deed, “This deed is delivered and accepted subject to those restrictions which are recorded in Book 174, at page 256, Orange County Registry,” purports to convey an easement to plaintiffs. Plaintiffs argue that an easement is conveyed and that defendants have broken their covenant of seisin because they failed to convey the full estate described in the deed. We disagree with plaintiffs and affirm summary judgment for defendants. G.S. 1A-1, Rule 56(c) provides: “ . . . The judgment sought shall be rendered forthwith 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 the party is entitled to a judgment as a matter of law .... ” The indisputable facts raise a question of law in the case at bar, i.e., whether the deed conveys an easement. Since there are no disputes as to material facts summary judgment is the proper procedure to reach final judgment. A deed is to be construed by the court, and the meaning of its terms is a question of law, not of fact. Brown v. Hodges, 232 N.C. 537, 61 S.E. 2d 603 (1950), reh. den. 233 N.C. 617, 65 S.E. 2d 144 (1951). When the language used has a clear legal meaning there is not even room for construction; the only question is that of determining the applicable law. Strickland v. Jackson, 259 N.C. 81, 130 S.E. 2d 22 (1963). In the present case the language used in the deed does not purport to convey from the Andersens to the Masons an easement entitling the landowner to use Lake Forest. The deed states only that it is “ . . . delivered and accepted subject to those restrictions which are recorded in Book 174, at Page 256, Orange County Registry [emphasis added].” A “restriction” as the word is used here is not any kind of “easement.” “An easement is a right to make some use of land owned by another without taking a part thereof.” Builders Supplies Co. v. Gainey, 282 N.C. 261, 266, 192 S.E. 2d 449 (1972). The land benefited is known as dominant land; that burdened is servient. Thus, while an easement might be a restriction on the servient land, it is in no sense a *572 restriction on the dominent land. In the present case, the land sold by the Andersens to the Masons was “ . . . subject to those restrictions . . . [emphasis added].” In other words, by the terms used in the deed it was the servient land. Yet, manifestly, if the Masons had received as part of their estate in the land the privilege of using Lake Forest, their land would have been benefited not burdened; it would have been dominant, not servient. Thus, as a matter of law, the privilege to use Lake Forest was in no sense a “restriction” on the Andersen-Mason land and could not have been conveyed by a deed using the word “restrictions.” The instrument appearing in Book 174, at page 256, of the Orange County Registry, and incorporated by reference in the Masons’ deed, does not use the word “restrictions” to describe the privilege, or easement, created therein to use Lake Forest. It refers “ ... to the following restrictions and conditions upon said lands,” and thereafter nine paragraphs set forth limitations which could only be meaningfully described as restrictions. Next are two paragraphs which refer respectively to “ . . . the foregoing covenants, conditions or restrictions ...” and “ . . . the above restrictive covenants. ...” Next follows a single paragraph which refers to “ . . . these covenants . . . , ” and finally paragraph thirteen conveys the easement in Lake Forest. That paragraph speaks of “the privilege” which is “ ... an appurtenance to the lot conveyed. ...” By incorporating the document in Book 174, page 256, of the Orange County Registry there was an obvious attempt to impose the same restrictive covenants on the plaintiffs’ property as existed on adjoining property. The restrictions referred to in plaintiffs’ deed are those referred to in the first nine paragraphs of the incorporated document. However, the privilege created in paragraph thirteen is an entirely different animal, not imposed, and not conveyed in plaintiffs’ deed. Moreover, the words “This deed is delivered and accepted subject to those restrictions . . . , ” are not words of transfer or conveyance. Therefore, the Masons’ deed purports to give them nothing more than the fee simple described in its granting and habendum clauses. Since that fee was, in fact, conveyed, the covenant of seisin was not broken. The Masons’ deed purports to convey a fee simple in the described land, subject to certain restrictive covenants. It does *573 not purport to convey the privilege, or easement, entitling them to use Lake Forest. Summary judgment is Affirmed. Judges Britt and Vaughn concur.