Wallace v. Bellamy

Adams, J. It is essential that wo bear in mind the significance of the issues. Only two were formulated because they involve the whole controversy. The defendants admitted that the plaintiff has the record title and consented that to the first issue an affirmative answer should be given by the trial court. The principal question thus left undetermined was that of the defendants’ adverse possession, although there are assignments of error based upon the court’s refusal to dismiss the action, and upon the charge and the exclusion of evidence. The real source of the controversy is the following clauses in the deed under which the defendants acquired title to lots 23 and 24: “Also the right of way in and over the lands of the party of the first part, lying between the premises hereby conveyed and Banks Channel on the west, for the purpose of ingress and egress; but the right of way shall cease and determine whenever the party of the first part shall open and establish streets or alleys extending from the Banks Channel to the Ocean, either to the north or south of the premises hereby conveyed.” These clauses are in all the deeds under which the defendants claim title. On 13 June, 1927, the Tidewater Power Company, which derived its title through mesne conveyances from the Wilmington Seacoast Railroad Company, as the defendants derived theirs, executed and delivered to the town of Wrightsville Beach certain lots to be “opened up and used only for streets”; and on the same day the Tidewater Company conveyed to the plaintiff several parcels of land, including that which is in controversy. The plaintiff took his title subject to this provision. It is immaterial, therefore, whether the streets, if opened at all, were opened by the plaintiff or his predecessor in title. The defendants suggest that a letter written by the male defendant from Fiesole, Italy, on 10 June, 1927, led to an attempt by the Tide-# water Power Company to open the streets in order to deprive the de^ fendants of their right of ingress and egress. In view of the dates borne by the letter and the deed this vjould seem to be improbable; but if the streets were opened and established the motive is immaterial. Bell v. Danzer, 187 N. C., 224. [763] It is insisted by the appellants that the streets just referred to are not contiguous or so near to the defendants’ property as to be available as a right of way from the Ocean to the Sound, and that it is impossible to open such streets without obtaining a reconveyance from the owners of lots 25 and 26 on the north or of lot 22 on the south of lots 23 and 24. In effect this is a contention that the proposed streets must adjoin lots 23 and 24, or at least one of them, and that the trial court should have given such construction to the several deeds. This interpretation would result in very seriously impairing, if not practically destroying, the entire scheme upon which the sale of lots and the erection of buildings was founded; it would require the appropriation of about one-third the building lots for the use of streets. It is manifest that such a result was not in the minds of the parties. For this reason, it may be, the defendants receded somewhat from this position by saying that the language of the deeds imports that the right of way should continue until a street or alley should be opened next to, or adjoining, or so near their lots as to be reasonably convenient for the owners’ use and for the use of their guests and friends. But on this point the appellants have no ground of complaint, for the judge’s instruction to the jury was in substantial agreement with this view, as is obvious from the following paragraph: “The language of this deed, gentlemen, from Holt to Mr. and Mrs. Bellamy, says that the right of way granted in said deed shall cease and determine whenever a street or alleyway shall be opened and established to the north or south of said lot. That means, I charge you, that the street must have been opened contiguous to said lot, and if not, so reasonably near thereto as to make it convenient to the owners of the lot to pass to the Ocean and Sound.” It is said by the appellants that the north street or alley is 260 feet from lots 23 and 24, and the one on the south is distant 210 feet, and that his Honor, instead of submitting the question to the jury, should have held as a conclusion of law that neither of them was a street or alley in contemplation of the provisions contained in the deeds. We find no agreement or stipulation in the chain of title as to the proximity of the streets or alleys to the lots owned by the defendants. The deeds contain the contract of the parties; and by the terms thereof they must abide. In the interpretation of contracts the general rule is that a court will not resort to construction where the intent of the parties is expressed in clear and unambiguous language; but if the terms are equivocal or ambiguous the jury may in proper cases determine the meaning of the words in which the agreement is expressed. This elementary principle is of frequent application in ascertaining the intention of the parties. Porter v. Construction Co., 195 N. C., 328; Patton v. Lumber Co., 179 N. C., 103; Faust v. Rohr, 166 N. C., 187; Young v. [764] Jeffreys, 20 N. C., 357. Tbe provision tbat tbe defendants’ right o-f way should cease and determine upon opening and establishing the contemplated streets or alleys was clearly expressed; but the term “north or south of the premises” is ambiguous. For the reasons above stated we concur in his Honor’s conclusion that the parties did not contemplate that the streets or alleys should necessarily adjoin the lots owned by the defendants, but that they should be near enough to enable the defendants with reasonable convenience to go to and from the Sound. As previously observed, the defendants seem to- have conceded the correctness of this position. The jury were told to pass upon the question as preliminary or incidental to their determination of the time when the ‘defendants’ alleged adverse possession began. The question being incidental, a mere question of fact, a separate issue was not necessary. Bailey v. Hassell, 184 N. C., 450; Power Co. v. Power Co., 171 N. C., 248. Moreover, the defendants did not object to the issues of record or tender an issue addressed to the location of the streets. They should have done so- if they desired to take advantage of the alleged error. Bank v. Bank, 197 N. C., 526; Brennan Wilkes, 179 N. C., 512; Maxwell v. McIver, 113 N. C., 288; Porter v. R. R., 97 N. C., 66; Clements v. Rogers, 95 N. C., 248. The issues submitted and the verdict returned indicate that the appellants rested their case principally upon the defense of adverse posses-, sion. The defense presupposes the opening of the streets, because up to the time they were opened and established the defendants’ right to use the land had been permissive; that is, the easement had remained permissive until the defendants had committed some act sufficient in character to point to an adverse claim. The permissive exercise of an easement does not silently bar the owner’s title. The defendants cannot assert title under and at the same time against the plaintiff and those from whom his title was derived. Whitten v. Peace, 188 N. C., 298; Perry v. White, 185 N. C., 79; Vanderbilt v. Chapman, 175 N. C., 11; Snowden v. Bell, 159 N. C., 500. The plaintiff offered evidence tending to show that the streets or alleys referred to in the deeds had not been opened and established until 1927; the defendants introduced deeds making provision for streets more than twenty years earlier. If the former position is correct the defendants’ adverse possession could not have matured their title; and in reference to the latter the court charged the jury to answer the second issue in the affirmative if, after the streets had been opened and established, the defendants had continued in possession, exercising dominion and control over the. land openly, notoriously, and adversely, claiming it as their own under known and visible boundaries for a period of twenty years. The jury found the facts to be otherwise, and returned a negative answer [765] to tbe second issue. Tbe defendants’ prayer for instruction witb respect to adverse possession was properly declined because it disregards altogether tbe time wben tbeir easement in tbe property was to come to an end. There was no error in tbe exclusion of evidence offered to show adverse possession by Harris and Holt, two of tbe defendants’ predecessors in title. It is elementary that tbe owner’s title to land may be defeated by tbe adverse possession of an occupant and those under whom be claims for a period of twenty years, and that tbe privity between successive occupants which will permit tbe tacking of tbeir possessions is privity of physical possession not derived from or in subordination to tbe true owner. Vanderbilt v. Chapman, 172 N. C., 809. But for obvious reasons tbe defendants cannot avail themselves of tbe proposed testimony. In tbeir answer they admit that they went into possession and exercised tbe easement under tbe Holt deed immediately after its execution on 26 May, 1906, and they offered evidence to tbe effect that they bad not purchased any lot on tbe west side of tbe Wilmington Seaeoast Eailway, but only “an easement of ingress and egress.” Tbe single claim they bad was tbe easement; they did not assert any other title to tbe disputed land at tbe time of tbeir entry. By tbe terms of tbe deed, in a certain event tbe easement was to cease. Claiming under tbe deed granting tbe easement, tbe defendants confirmed it; by claiming tbe benefits they assumed tbe imposed burdens; they may not assail tbe deed upon which at tbe same time they base tbeir right of entry. Hill v. Hill, 176 N. C., 194; Fort v. Allen, 110 N. C., 183; Fisher v. Mining Co., 94 N. C., 397; Curlee v. Smith, 91 N. C., 172; Leach v. Jones, 86 N. C., 404; Grandy v. Bailey, 35 N. C., 221. This is not a denial of tbeir right to establish subsequent adverse possession, but it is a denial of tbeir right to tack tbeir subsequent possession to tbe alleged adverse possession of those who occupied tbe property previously to tbe entry of tbe defendants under tbe limitations of tbeir deed. Tbe defendants offered evidence tending to show that tbeir possession was permissive until 1907. Tbeir claim of subsequent adverse possession was presented to tbe jury by instructions in which we find no error. It is manifest from what we have said that tbe motion to dismiss the action was properly denied. No error.