SWAIM v. SIMPSON

Plaintiff filed this declaratory judgment action after defendants refused to allow the installation of underground utility and telephone lines on plaintiff's easement which runs across their property. Defendants acknowledged the existence of the easement, but maintained that it was limited to ingress and egress. The trial court granted summary judgment for plaintiff and stated that "the easement . . . is hereby declared to include the right to locate, install and maintain all facilities for the provision of domestic utilities in furtherance of plaintiff's use of his property for residential purposes." Defendants appeal.

ARNOLD, Chief Judge.

Defendants argue that the trial court erred by increasing the extent and scope of the easement. They maintain that "[n]o language exists in any of the deeds of record which suggest that the scope of easement was anything other than an access easement to and from the state road." Conversely, plaintiff argues that the grantors clearly "intended to provide the owners . . . with an easement sufficient to maintain a residence, which would logically include access and utilities."

The purpose of an easement "should be set forth precisely." I Patrick K. Hetrick James B. McLaughlin, Jr., Webster's Real Estate Law in North Carolina § 15-9 (4th ed. 1994). When the scope and extent of an easement is in debate, the following rules apply:

First, the scope of an express easement is controlled by the terms of the conveyance if the conveyance is precise as to this issue. Second, if the conveyance speaks to the scope of the easement in less than precise terms (i.e., it is ambiguous), the scope may be determined by reference to the attendant circumstances, the situation of the parties, and by the acts of the parties in the use of the easement immediately following the grant. Third, if the conveyance is silent as to the scope of the easement, extrinsic evidence is inadmissible as to the scope or extent of the easement. However, in this latter situation, a reasonable use is implied.

Id. at § 15-21; see also Williams v. Abernethy, 102 N.C. App. 462, 464-65, 402 S.E.2d 438, 440 (1991) (stating that "[w]hen an easement is created by an express conveyance and the conveyance is `perfectly precise' as to the extent of the easement, the terms of the conveyance control").

Here, plaintiff was granted an express easement over Lot Six. The grant states that "[a]lso conveyed herewith is an easement of right of way for ingress and egress to the above described tract to N.C. S. R. #1146, and which easement is more fully described in that conveyance recorded in Book 233, page 210 . . . on April 30, 1982." The easement, in Book 233, page 210, is described as "providing access of ingress and egress to and from" plaintiff's lots.

Generally, "once an easement has been established, the easement holder must not change the use for which the easement was created so as to increase the burden of the servient tract." Webster's, supra, § 15-21 (italics omitted). In construing the easement to provide for the location, installation, and maintenance of facilities for domestic utilities, the trial court increased the use of the easement and the burden on the servient estate. Had the grantors intended a greater use, such use should have been specified. See Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962) (stating that "[w]hen the language . . . 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"). Because the deed identified the easement as one for ingress and egress, the trial court erred in expanding its use.

The trial court's order is reversed and this case is remanded for entry of summary judgment for defendants.

Reversed and remanded.

Judge MARTIN, Mark D., concurs.

Judge JOHNSON dissents with a separate opinion.