Price v. Bunn

MALLARD, Chief Judge. The first question presented by defendants in this appeal is: “Did the Court err in excluding evidence as to the subject matter, the setting of the parties, the surrounding and attendant circumstances, the object the parties had in view, and the light which the parties possessed when the Easement was *658 made?” This excluded evidence consisted primarily of certain portions of an affidavit made by defendant W. B. Bunn and portions of certain special proceedings and deeds concerning lands situated on both sides of Moccasin Creek and subsequently affected by the dam rebuilt by defendants. Defendants contend that this various evidence was offered “for the purpose of showing that defendants at the first reasonable opportunity acquired those lands on Moccasin Creek which lay downstream from plaintiff’s land and upstream from defendants’ land (that is, between plaintiff’s land and defendants’ land)” and “of showing the light the parties to the easement possessed when the easement was first prepared and was later executed.” We hold that it was not error for the trial judge to exclude this evidence. We concur in the judge’s findings that the language of the easement is “plain and unambiguous” and hold that, for that reason, reference to matters outside of the deed of easement itself is not required for a correct construction. An easement deed is a contract. Weyerhaeuser v. Light Co., 257 N.C. 717, 127 S.E. 2d 539 (1962). “It is elementary that where a contract is plain and unambiguous the construction of the agreement is a matter of law for the court. 2 Strong, N. C. Index 2d, Contracts, § 12, p. 311. In the case of Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 127 S.E. 2d 539, it is stated: ‘When the language of a contract is clear and unambiguous, effect must be given to its terms, and the court, under the guise of constructions, cannot reject what the parties inserted or insert what the parties elected to omit. Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E. 2d 198. It is the province of the courts to construe and not to make contracts for the parties. Williamson v. Miller, 231 N.C. 722, 727, 58 S.E. 2d 743; Green v. Insurance Co., 233 N.C. 321, 327, 64 S.E. 2d 162. The terms of an unambiguous contract are to be taken and understood in their plain, ordinary and popular sense. Bailey v. Insurance Co., 222 N.C. 716, 722, 24 S.E. 2d 614.’ ” Peaseley v. Coke Co., 12 N.C. App. 226, 182 S.E. 2d 810 (1971). Considering the deed or easement in its entirety, we think that the intent of the parties and the meaning of the language they employed are sufficiently clear. The easement provides that the *659 party of the second part, (defendants’ grantor) is to have the easement granted forever, “or so long as” he “may or will use the above rights, privileges and easement, but in the event . . . (he) should fail to keep up> and maintain the dam across Moccasin Creek, and should fail to use the rights and privileges . . . for the period of five years, the terms of this easement shall become null and void and of no effect, and the property and rights herein given, granted and conveyed shall revert to the parties of the first part, their heirs and assigns. * * * ” (Emphasis added.) This language states that J. K. Barrow, his heirs or assigns, had a five-year period within which to exercise the rights and privileges given by the deed. The language employed in connection with this easement is that which would be appropriate for the creation of a fee simple determinable estate. “The estate known as the fee simple determinable is created when apt and appropriate language is used by a grantor or devisor indicative of an intent on the part of the grantor or devisor that a fee simple estate conveyed or devised will expire automatically upon the happening of a certain event or upon the discontinuance of certain existing facts. Typical language creating such estates may specify that the grantee or devisee shall have land ‘until’ some event occurs, or ‘while,’ ‘during,’ or ‘for so long as’ some state of facts continues to exist. Upon the happening of the specified event, the fee simple determinable automatically terminates, and reverts to the grantor or to his heirs. * * * When the specified event occurs, the possessory estate of the grantee or devisee ends by operation of law automatically and without the necessity of any act or re-entry, without the institution of any lawsuit, or the intervention of any court. * * * ” (Emphasis original.) Webster, Real Estate Law in North Carolina, § 35, p. 49. “Determinable easements are well recognized, as in Wallace v. Bellamy, 199 N.C. 759, 155 S.E. 856, where an easement was granted, to terminate upon the construction of certain streets which would provide for ingress and egress to and from the property conveyed in lieu of the way granted in the easement. Likewise, in McDowell v. R. Co., 144 N.C. 721, 57 S.E. 520, an easement for the construction of a railroad was granted on condition the road was constructed in five years; this was held to be a *660 valid easement, subject to terminate if the condition was not met. Also, in Hall v. Turner, 110 N.C. 292, 14 S.E. 791, the easement was to continue so long as grantee maintained a mill at a certain location.” Dees v. Pipeline Co., 266 N.C. 323, 146 S.E. 2d 50 (1966). (Emphasis added.) In the present case, when the five-year period from the date of the creation of the easement elapsed (on or about 27 December 1950) and none of the rights and privileges granted therein; primarily, the right to back water over the plaintiff’s land, but including rights and privileges incidental thereto, had been exercised by J. K. Barrow or his successors in title, the easement was automatically terminated and the interests and rights created thereby reverted to the grantor and his successors in title as a matter of law. Defendants admit that the rights that they have asserted are based upon the easement from Jeans to Barrow, but contend that the intent of the parties is not clear and that “issues as to the facts and circumstances existing at the time the easement was executed” should have been submitted to the jury for determination. We do not find from a review of the record, including that evidence which the hearing judge excluded, that any issues of fact suitable for jury determination were raised other than that of damages. The legal import of the terms of a deed of easement, except where ambiguity obscures the intent of the parties, is a matter of law for determination by the court. Weyerhaeuser v. Light Co., supra. The defendants excepted to nearly all of the findings of fact and conclusions of law of the hearing judge and contend further that the court erred in its “interpretation” of the easement, in allowing the plaintiff’s motion for summary judgment and in failing to grant summary judgment for the defendants. Defendants have seized upon the absence of any explicit requirement in the deed of easement requiring that the dam be rebuilt by a stated date and contend that the previously quoted provisions or limitations contained in the habendum clause of the deed became operative only after the dam was rebuilt, if it ever were rebuilt at all. Stated differently, the defendants contend that J. K. Barrow or his successors in title to the dominant tract had an indefinite period of time within which to rebuild the dam (if, in fact, they ever chose to rebuild it at all) and that until such time the rights and privileges granted by *661 the deed were in full force, subject to reverting only if the owners of the dominant tract thereafter failed to keep up or maintain the dam for a period of five years or more. We hold that the language of the easement does not admit of such a construction. In their fourth assignment of error, the defendants contend that the court erred in failing to consider evidence “of special circumstances for equity to consider in that people other than the defendants who owned land adjoining the lake have built houses along the high water mark of the lake . . . and many people have acquired lots adjoining said lake from persons other than the defendants . . . . ” Defendants also set out the contention (which is not disputed) that much expense has been incurred in acquiring and clearing land and in building the dam and contend that it is “inequitable” for plaintiff, having only six acres affected by the impoundment, to demand that the project be “discarded.” In McDowell v. R.R., 144 N.C. 721, 57 S.E. 520 (1907), the plaintiff had deeded to the defendant railroad a strip of land for the purpose of building a rail line. Following the habendum in the deed was a provision that “if the party of the second part shall fail and neglect for a period of five years from this date to construct its line of railway over the premises hereby granted, then and in that event the title to said lands shall revert to the parties of the first part . . . . ” Five years elapsed and the defendant had not constructed its line of railway over the premises. In McDowell, there were considered “equities” similar to those contended for by the defendants in the case before us. The strip of land granted by the plaintiffs was only a small link in the railroad that was being built from the Georgia state line to Franklin, North Carolina. Apparently, one factor in the railroad’s failure to construct the rail line on the premises in question within the five-year period was that a 1905 Act of the General Assembly required it to concentrate its work forces on another part of the line. In response to the defendant’s contention that it came within “the protective principle of equity jurisprudence, whereby relief is granted against forfeiture,” the Court said: “As we have seen, on 24 May 1906, the estate which had been conveyed by plaintiffs to defendant came to an *662 end and revested in the plaintiffs as if it had never been out of them; in other words, they were in, as of their original estate, by reverter on account of condition broken. Is it within the province, or the power of a court of equity to destroy the estate now in plaintiffs and revest it in the defendant? * * * * * * Bispham says: ‘But equity will not, in general, and in the absence of special circumstances calling for interference, give relief in cases of forfeiture growing out of breach of covenant for repairing, insuring, or doing any specific act.’ It will be observed that while in many cases equity will not enforce a forfeiture, the plaintiff here is not invoking equitable relief; he is standing upon his legal right — his contract. There is nothing harsh or inequitable in the terms of the contract in the time fixed for constructing the road over his premises. During the five years the value of his land was probably impaired by the burden upon it; he may well have been willing to carry the burden during that time, but no longer; this is what his deed declares. * * * ” (Emphasis' added.) In the case before us, rights and interests granted in the deed of easement dated 28 December 1945 reverted, by the terms of the instrument itself, to the plaintiff or her predecessors in title five years after the date thereof. Admittedly, the consequences of this reversion may be harsh from the viewpoint of the defendant, but the judgment complained of results solely from defendants’ failure to ensure that the easement they relied upon was in force before they undertook the project of rebuilding the dam. We are not at liberty to extract from the plaintiff and give to the defendants, in the name of equity, an easement which these defendants have never possessed. Defendants also contend that the easement granted was on a condition subsequent, and that no right of re-entry was reserved; however, no act of re-entry by the grantor would be necessary in the case before us, because, at the time of the breach of the condition, the plaintiff’s predecessors in title were in possession of the servient tract. McDowell v. R.R., supra. Furthermore, we have previously noted that the language of the deed in question indicates that the easement granted was determinable, and reverted automatically, rather than being upon a condition subsequent. *663 The defendants, in their brief, present a number of additional contentions which require no discussion in light of our holding that the hearing judge did not commit error in his construction of the easement relied upon by defendants. The motion for summary judgment permitted the trial judge, in rendering his ruling on the motion, to consider the pleadings, answers to interrogatories and admission on file, together with the affidavit offered. G.S. 1A-1, Rule 56(c). The trial judge correctly found from the evidence offered that there was no genuine issue as to any material fact except damages; therefore, the court properly entered a partial summary judgment, leaving that issue for later jury determination. Affirmed. Judges Morris and Parker concur.