M. E. Gruber, Inc. v. Eubank

Brogden, J. Two questions are presented by the record: • T. Does the language in the deeds, constituting plaintiff’s chain of title, create an easement across the said.land known as the Jerusalem Trail? 2. If not, has such easement to said strip of land, known as the Jerusalem Trail, been acquired by prescription? It must be observed at the outset that no person or group of persons is claiming an easement across plaintiff’s land or attempting to assert any right to use that strip of land described in the case as the Jerusalem Trail. The plaintiff has brought this suit against the defendants, alleging that the language in the deed constitutes an easement, which is an encumbrance upon his title, and therefore resulting in a breach of the covenant in the deed from the defendant to the plaintiff, and thus entitling the plaintiff to a rescission of the contract for the purchase of the land or for damages. The language of the deed creating the alleged easement occurs in the description of the property and is as follows: “Thence south 5 degs. east, running on the west side of the creek 1 poles to a stake on the west side of the creek; thence same course 1 pole to a stake, reserving at all times the full.and entire use of the distance of 40 yards of said creek for the use of my Elat Rock settlement, and that it may not be directed (diverted) from the same.” This language is found in the deed from Baring to DeOhoisel and in every deed constituting the chain of title under which Seigling claims, though it is not inserted in the deed from Seigling to the plaintiffs. Baring, at the date of the deed in 1836, owned a large boundary of land. An examination of the description of the property from Baring to DeOhoisel discloses that the reservation occurs as a part of the description of the land. It further appears from plats filed in the cause that the line of the land *284 conveyed, by Baring to DeCboisel was entirely on tbe east side of tbe creek and only touched tbe creek at tbe elbow. Tbis elbow of forty yards, therefore, was the only part of the creek left on tbe Flat Bock side of tbe creek. In other words, a person living or owning land on tbe Elat Bock side of tbe creek would only touch tbe creek at tbe elbow without trespassing upon tbe DeOhoisel land, which is now tbe land in controversy. The law recognizes nine methods of creating or establishing easements. Mordecai Law Lectures, Yol. 1, 464-471. However, in the case at bar the easement in controversy arises either from the reservation in the deed or by prescription. An easement, of course, is an interest in land, and, if it is created by deed, either by express grant or by reservation, the description thereof must not be too uncertain, vague and indefinite. Waugh v. Richardson, 30 N. C., 470; McCormick v. Monroe, 46 N. C., 13; Patton v. Educational Co., 101 N. C., 408, 8 S. E., 140; S. v. Suttle, 115 N. C., 784, 20 S. E., 725. See, also, Bissette v. Strickland, 191 N. C., 260, 131 S. E., 655, and Bryson v. McCoy, 194 N. C., 91, 138 S. E., 420; Coastal Land and Timber Co. v. Eubank, 196 N. C., 724. Tbe principles of law relating to easements are clear enough and plain enough, but tbe chief difficulty arises in construing or interpreting tbe language contained in tbe deed. A reservation of “a distance of 40 yards of said creek . . . and that it may not be diverted from tbe same” is too ambiguous and uncertain to create a public way for one-third of a mile across a tract of land. Tbe identity of such an interest in land would of neeesssity rest in conjecture and speculation, and we therefore bold that tbe language in tbe deed was not sufficient to identify tbe easement asserted by tbe plaintiff. Tbe second phase of tbe controversy involves tbe question as to whether tbe Jerusalem Trail by virtue of use amounted to a public way across tbe lands of tbe plaintiff. There is evidence in tbe record of tbe existence of tbe Jerusalem Trail about forty or forty-five years ago. There is further evidence that within tbe past ten years people have been seen walking in portions of tbis trail, and that in former years numbers of people used tbe walkway for going to church or for other purposes. However, it further appears that forty years ago tbe entire tract of land was under fence, and that subsequently a cow pasture and a bog pasture enclosed by a wire fence bad been constructed across tbis area, and that while stiles bad been erected, they bad been built for tbe exclusive use of employees of tbe owner. Indeed, tbe testimony discloses that summer boarders and sightseers were tbe persons most frequently seen upon tbe premises in recent years. *285 Mere user is not sufficient to create sucb an easement as contended for by tbe plaintiffs. Boyden v. Achenbach, 79 N. C., 539; Snowden v. Bell, 159 N. C., 497, 75 S. E., 721; S. v. Norris, 174 N. C., 808, 93 S. E., 950; Nash v. Shute, 184 N. C., 383, 114 S. E., 470. Tbe legal essentials for creating an easement by prescription are thus stated in 9 R. C. L., 772: “To establish an easement by prescription it must be: first, continued and uninterrupted use or enjoyment; second, identity of tbe thing enjoyed; third, a claim of right adverse to the owner of the soil, known to and acquiesced in by him.” Draper v. Conner, 187 N. C., 18, 121 S. E., 29; Durham v. Wright, 190 N. C., 568, 130 S. E., 161. The evidence in the case at bar, viewed in a light most favorable to the plaintiffs, tends to show intermittent and desultory use of portions of that strip of land known as the Jerusalem Trail. There is no suggestion of any claim of right by any person or group of persons. In the last analysis it appears that neighbors, sightseers and summer boarders from time to time walked in this trail at places where it was not enclosed by fence or grown up in bushes and timber or obliterated by cultivation. There is no evidence tending to establish the existence of such an easement, and the judgment of nonsuit was properly entered. Affirmed. ClabxsoN, J., not sitting.