Woodlief v. Johnson

*53 EAGLES, Judge. I Defendants first assign as error the trial court’s denial of their motion to dismiss pursuant to G.S. 1A-1, Rule 41 made at the close of plaintiffs’ evidence and the trial court’s findings of fact and conclusions of law that the 1956 deed recorded at Book 133, Page 502, Bladen County Registry, creates an express grant of an easement to both plaintiffs and defendants over Godwin Street. In a non-jury case, as here, after the plaintiff has rested his case, defendant may move pursuant to G.S. 1A-1, Rule 41(b) for a dismissal on the ground that upon the facts and the law plaintiff has shown no right to relief. Helms v. Rea, 282 N.C. 610, 194 S.E. 2d 1 (1973). The question presented is whether the plaintiffs evidence, taken as true, would support findings of fact upon which the trier of fact could properly base a judgment for the plaintiff. Our examination of the record in this case reveals sufficient evidence supporting the denial of the motion to dismiss and the trial court’s findings of fact and conclusions of law that there was an express grant of an easement to both plaintiffs and defendants over Godwin Street. Where the trial judge sits as the trier of fact, his findings are conclusive upon appeal if supported by competent evidence, even though there may be evidence to the contrary. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E. 2d 113 (1970), rev’d on other grounds, 279 N.C. 123, 181 S.E. 2d 438 (1971). The basis for defendants’ first assignment of error is that the trial court lacked subject matter jurisdiction in this case and that the 1956 deed from the Godwins purporting to create a 30 foot easement from Highway 41 to the waters’ edge did not constitute the grant of an express easement as a matter of law. We disagree. It is well established that parties cannot by consent give a court subject matter jurisdiction which it does not have. State v. Fisher, 270 N.C. 315, 154 S.E. 2d 333 (1967). Though the parties have consented to subject matter jurisdiction in the district court here, defendants contend that since the North Carolina Department of Natural Resources and Community Development has ex- *54 elusive authority to develop rules and regulations for piers and boat ramps on State-owned White Lake, the plaintiffs should have first requested a declaratory ruling by the Department of Natural Resources and Community Development. While we agree with defendants’ contentions as to the pier and boat ramp itself (an issue discussed infra), we do not agree that the district court lacked subject matter jurisdiction to determine the parties’ rights in the easement in question over Godwin Street which is not State-owned. An action to obtain a judicial declaration of rights to an easement is authorized by our Declaratory Judgment Act and may be brought in the district court division, G.S. 1-262, G.S. 7A-242; see, Hubbard v. Josey, 267 N.C. 651, 148 S.E. 2d 638 (1966); Carver v. Leatherwood, 230 N.C. 96, 52 S.E. 2d 1 (1949). Accordingly, the district court had subject matter jurisdiction to determine the parties’ rights in the easement in question from Highway 41 to the waters’ edge of White Lake. The trial court found as fact and concluded as law that the 1956 deed from the Godwins to certain named grantees and all present and future owners created an express grant of an easement. The express grant in a deed is an accepted method for creating easements in North Carolina. Hetrick, Webster’s Heal Estate Law in North Carolina, Section 311 (1981). The written instrument creating an easement by grant must describe with reasonable certainty the easement created and must also describe the dominant and servient tracts involved. Hensley v. Ramsey, 283 N.C. 714, 199 S.E. 2d 1 (1973). The 1956 easement deed was stipulated into evidence and reveals that there is an express grant of a perpetual right of easement of egress, ingress and regress over and upon that thirty foot strip of land to be used as a street running through the center of that certain tract of land heretofore conveyed . . . and recorded in Book 107 at page 605, and the said street to run in an eastwardly direction from Highway 41 to the western edge of White Lake; the northern edge of said street runs with the southern line of the Cecil R. Butler lot as recorded in Book 125 at page 331; the Southern edge of said street runs with the northern line of the W. H. Brown lot as recorded in Book 107 at page 362, and others. *55 This is a more detailed description of the location of an easement than that approved by our Supreme Court in Hensley v. Ramsey, supra, where the easement was described as “a right-of-way across the Duncan lot . . . The location of the right-of-way is fixed as along the Langford (Lankford) line.” 283 N.C. at 730, 199 S.E. 2d at 10. It is also clear from the face of the 1956 deed that the God-wins retained title to the thirty foot strip of land through the center of the tract later known as Godwin Street. It is that thirty foot tract that is the servient tract, the dominant tracts being all of those lots subdivided out of the original tract of land recorded in Book 107, page 17, Bladen County Registry. Additionally, we note that the trial court made a finding of fact that at the time of the conveyance of the easement on 25 October 1956, the Godwins held title to Godwin Street. That finding of fact is not contested on appeal. Accordingly, there was sufficient evidence from which the trial court could find and conclude that the easement deed adequately described the easement with reasonable certainty and described the dominant and servient tracts involved. Defendants also argue that the deed from the Godwins creating the easement was never unconditionally accepted by plaintiff Woodliefs and is therefor invalid. We disagree. In North Carolina, acceptance is presumed if the conveyance is beneficial to the grantee even though he may have no knowledge of the transaction. Ballard v. Ballard, 230 N.C. 629, 55 S.E. 2d 316 (1949). Here, all parties agreed that it was in their mutual interest to establish the easement for the common use of all present and future owners of the lots conveyed out of the original tract. This use is beneficial to the plaintiffs and acceptance must be presumed. Ballard v. Ballard, supra. We are aware that the presumption of delivery and acceptance does not apply if the deed is subject to a condition or otherwise imposes an obligation upon the grantee. Beaver v. Ledbetter, 269 N.C. 142, 152 S.E. 2d 165 (1967). However, the deed in question is not subject to condition and does not, on its face, impose any obligation upon any grantee. We also cannot say that plaintiffs have breached the easement contract by the fact that a grocery store building sits squarely upon the easement on plaintiffs’ land, nor can we say that the building’s presence manifests an intent not to accept the benefits of the easement. We note that the building was in place in 1944, *56 long before the easement deed of 1956. Under the facts of this case, it would be speculative to presume a non-acceptance of the easement by plaintiffs. Based upon the record before us, we hold that there was sufficient evidence to withstand defendants’ motion to dismiss pursuant to G.S. 1A-1, Rule 41 and sufficient evidence from which the trial court could find and conclude as a matter of law that the 1956 deed created “an express and perpetual easement of egress, ingress and regress over and upon that certain 30-foot strip of land known as Godwin Street.” II Defendants next assign as error the trial court’s findings of fact and conclusion of law that the pier at the end of Godwin Street was an extension of the Godwin Street easement. We agree that there was error. While it is true that the pier was in existence at the time of the grant of the easement in 1956, the pier extends over State-owned White Lake. The North Carolina Department of Natural Resources and Community Development has the exclusive authority to develop rules and regulations and to issue permits for the construction and use of piers and boat ramps on White Lake. G.S. 113-8, G.S. 113-35, G.S. 146-13. As to the rights of the parties in the pier and boat ramp, original jurisdiction for a declaratory ruling rests in the North Carolina Department of Natural Resources and Community Development pursuant to the Administrative Procedure Act, G.S. 150A-1, et seq. Plaintiffs did not pursue declaratory relief pursuant to G.S. 150A-17 and have failed to exhaust their administrative remedies prior to instituting this action. Wake County Hospital v. Industrial Commission, 8 N.C. App. 259, 174 S.E. 2d 292 (1970). Accordingly, the trial court lacked subject matter jurisdiction to adjudicate the parties’ rights and interests in the pier and boat ramp. For the reasons herein stated, we affirm so much of the judgment of the district court which declares that the named parties both plaintiff and defendant and their successors in title are owners of a perpetual easement of egress, ingress and regress over and upon that certain 30-foot strip of land known as Godwin Street which extends from State Road 1515 to White Lake and *57 that all parties are permanently restrained and enjoined from obstructing or interfering with the rights of any other party to Godwin Street. We reverse so much of the judgment of the district court which purports to adjudicate the parties’ rights and interests in the pier located at the end of Godwin Street and extending over the waters of White Lake. Defendants’ remaining assignments of error are without merit. Affirmed in part, reversed in part. Judges WHICHARD and JOHNSON concur.