             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-864

                                 Filed: 4 June 2019

Alamance County, No. 17-CVS-1429

BRUCE TAYLOR and SUSAN A. TAYLOR, Plaintiffs,

             vs.

THOMAS HIATT, THOMAS R. HIATT and JEWEL HOLLARS, Defendants.


      Appeal by Plaintiff from order entered 8 March 2018 by Judge James K.

Roberson in Alamance County Superior Court. Heard in the Court of Appeals 13

February 2019.


      Oertel, Koonts & Oertel, PLLC, by Geoffrey K. Oertel, for the Plaintiffs-
      Appellants.

      Pittman & Steele, PLLC, by Timothy W. Gray, for the Defendants-Appellees.


      DILLON, Judge.


      Plaintiffs brought this action seeking a declaration and other relief concerning

an easement extending across Plaintiffs’ property to Defendants’ property. Plaintiffs

appeal the trial court’s order granting summary judgment to Defendants. After

review of the materials before the trial court, we reverse and remand.

                                   I. Background

      Plaintiffs and Defendants own adjacent tracts of land in rural Alamance

County. Defendants access a nearby State road via easements (private roads) which
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                                   Opinion of the Court



span across Plaintiffs’ land. Plaintiffs built two gates and fencing somewhere along

these private roads to fence in their horses. These gates do not prevent Defendants

from being able to access the public road, as Plaintiffs have provided Defendants with

the access code for the gates. However, Defendants contend that, based on language

in the chain of title concerning the easements, Plaintiffs are not allowed to construct

the gates on the easement. Plaintiffs commenced this action, seeking a declaration

of their right to construct and maintain the gates in question.                Defendant

counterclaimed, seeking a declaration that Plaintiffs have no right to erect and

maintain the gates and an order directing Plaintiffs to remove the gates.

                   A. Title History and Creation of the Easements

      The chain of title at issue is described herein. The map below is included for

clarity. The map depicts six tracts of land, referenced in this opinion as Tracts 1-6.

Plaintiffs own Tracts 1 and 3. Defendants own Tract 4. The other tracts, Tracts 2, 5,

and 6, are not subject to this present dispute. Defendants access Roney Lineberry

Road (a public road shown at the top of the map just above Tract 2) via two private

roads. These private roads are depicted on the map below as a dotted line and a thick

line, respectively. The location of these roads, as shown on the map, is approximate.

The record before us is not clear as to the precise location of these roads.




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      The history of these tracts, including Plaintiffs’ and Defendants’ tracts, is as

follows:

      As of 1989, Tracts 1-6 were all part of a single tract (approximately one

hundred nine (109) acres in area) and were owned by the Estate of C.R. Roney (the

“Estate”). Over the years, there have been four maps filed to subdivide this large

tract, ultimately into six tracts. And over the years, two easement roads have been

created to provide access to these tracts as they were being created: the dotted-line

road depicted above was created by a map recorded in 1989, and the solid line road

depicted above was created by a map that was recorded in 2000.

    1. 1989: Division of Large Tract into Two Tracts; Creation of First Easement

      In 1989, the Estate recorded a map (the “1989 Map”) that divided the one

hundred nine (109) acre tract into two separate tracts:      one tract consisting of


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approximately sixty-six (66) acres, which today comprises Tracts 1 and 2; and another

tract consisting of approximately forty-three (43) acres, which today comprises Tracts

3-6.

       Through the filing of this 1989 Map, an easement was created (the “1989

Easement”), depicted above as the dotted-line road, to provide access points of egress

and ingress to various parts of both large tracts. That is, the 1989 Easement provides

more than one access point to each of the two large tracts, as it meanders at or near

the border dividing the two tracts.

       Of significance to this present dispute, the 1989 Map indicates that this 1989

Easement is to remain “open for egress and regress” for the benefit of the owner of

the newly formed sixty-six (66) acre and forty-three (43) acre tracts created by the

division, stating as follows:

             Note: The existing private road shall remain open for
             egress and regress to [the sixty-six (66) acre and forty-three
             (43) acre tracts formed by the 1989 Map]. Road shall be
             maintained by the “owner” or “owners” of [the two tracts].

                  2. 1996: Division of 66-Acre Tract into Two Tracts

       In 1996, the owner of the sixty-six (66) acre tract filed a map (the “1996 Map”)

subdividing that tract into two tracts, depicted above as Tract 1 (nine acres) and Tract

2 (fifty-seven (57) acres). The 1996 Map depicts the 1989 Easement, the dotted-line

road depicted above, in essentially the same location as depicted on the 1989 Map,

reiterating that the easement is to remain open for the benefit of the adjacent forty-


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three (43) acre tract as well as the newly formed Tracts 1 and 2, which had made up

the sixty-six (66) acre tract.

                    3. 2000: Division of 43-Acre Tract into Three Tracts

        In 2000, the owner of the forty-three (43) acre tract filed a map (the “2000

Map”) subdividing that tract into three tracts, depicted above as Tract 3, Tract 4, and

a tract now comprised of Tracts 5 and 6.1 The 2000 Map depicts the top portion of

the 1989 Easement, but also depicts a new private road (the “2000 Easement”), shown

in the above map as the solid line, to provide access from the 1989 Easement to the

three newly formed tracts, Tracts 3, 4 and what are now 5 and 6.

        The 2000 Easement is described on the 2000 Map as a “30’ R/W [right-of-way]

EASEMENT.”           The 2000 Map, however, does not contain any other language

concerning this new 2000 Easement. That is, unlike the 1989 Map’s description of

the 1989 Easement, there is no language in the 2000 Map indicating that the 2000

Easement is to remain “open.”

                            B. Plaintiffs’ Construction of the Gates

        In 2017, Plaintiffs, who own Tracts 1 and 3, erected two access gates to keep

their horses secured on their tracts. There is nothing in the record indicating exactly

where on Plaintiffs’ tracts the gates were installed. In other words, there is nothing




        1The 2000 Map did not create Tracts 5 and 6 as two separate tracts, but as one tract. The
subdivision of Tracts 5 and 6 occurred later, but that subdivision is not relevant to this present matter.

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in the record to indicate whether the gates were installed on the 1989 Easement or

the 2000 Easement, as some portion of both easements are on Plaintiffs’ land.

      Plaintiffs provided Defendants with the access code to the gates so that

Defendants could still access Roney Lineberry Road by way of the easements. But,

over the course of time, a number of disputes between the parties arose concerning

the gates.

                                C. Procedural History

      In July 2017, Plaintiffs commenced this action requesting a declaratory

judgment regarding their right to construct and maintain the gates. Defendants

answered and counterclaimed, requesting removal of the access gates.

      In March 2018, after a hearing on the matter, the trial court entered an

amended judgment declaring that Plaintiffs were prohibited “from having gates, bars,

fences and the like on the Private Road” and directing Plaintiffs to “remove the gates

erected upon the Private Road[.]” The trial court certified its order for immediate

appellate review. Plaintiffs timely appealed.

      In April 2018, while their appeal was pending with our Court, Plaintiffs filed

a motion for relief with the trial court, requesting that they be allowed to offer into

evidence a new survey which purported to show where the gates were in fact located.

Plaintiff contended that this survey constituted new evidence on which the trial court




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should reverse its prior order. The trial court indicated that it would likely deny the

motion, but did not have jurisdiction to do so in light of Plaintiffs’ pending appeal.

                                      II. Analysis

      Plaintiffs appeal an order granting Defendants summary judgment against

Plaintiffs’ claims. We review a grant of summary judgment de novo, to determine

whether the record shows, in the light most favorable to the nonmoving party, that

there was no genuine issue of material fact remaining for the trial court to resolve.

Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007). In our review, we

may only consider the record on appeal, composed of the materials before the trial

court at the time of the hearing. Waste Mgmt. of Carolinas, Inc., v. Peerless Ins.

Co., 315 N.C. 688, 690, 340 S.E.2d 374, 377 (1986).

      Typically, the owner of a servient estate “may erect gates across [an easement]

when necessary to the reasonable enjoyment of his estate, provided they are not of

such nature as to materially impair or unreasonably interfere” with the purpose of

the easement to the dominant estate. Chesson v. Jordan, 224 N.C. 289, 293, 29 S.E.2d

906, 909 (1944); accord Merrell v. Jenkins, 242 N.C. 636, 637-38, 89 S.E.2d 242, 243-

44 (1955). However, our Supreme Court has held that the owner of a servient estate

generally may not erect gates on an easement where the instrument granting the

easement provides that the easement is to remain “open,” stating as follows:

             Generally, the grant of a way without reservation of the
             right to maintain gates does not necessarily preclude the


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             owner of the land from having them; unless it is expressly
             stipulated that the way shall be an open one or it appears
             from the terms of the grant or the circumstances that such
             was the intention, the owner of the servient estate may
             erect gates across the way if they are constructed so as not
             to interfere unreasonably with the right of passage.

Setzer v. Annas, 286 N.C. 534, 539, 212 S.E.2d 154, 157 (1975) (emphasis added).

Indeed, our Supreme Court has interpreted express language suggesting that an

easement remain “open” to mean that it must be free of obstructions, such as fences

or gates. See Patton v. W. Carolina Educ. Co., 101 N.C. 408, 409-11, 8 S.E. 140, 141-

42 (1888) (holding that “[a] street, with gates or fences across it, is not what was

reserved” by a deed stating “that the street now opened up through to the college

land . . . shall be kept open” (emphasis added)).

      It is unquestioned that the 2000 Map creating the 2000 Easement and the 1989

Map creating the 1989 Easement are in Defendants’ chain of title. Defendants

acquired their property, Tract 4, in 2007 in fee simple via a general warranty deed.

The deed expressly conveyed “a permanent access easement for ingress, egress, and

regress over and upon the 30 ft right of way as shown on said plat of survey” recorded

in “Plat Book 65 at Page 118,” the location of the 2000 Map. It is true that the 2000

Map contains no language requiring the easement to remain open, but it does refer

to the “[r]ight of way along Existing Private Road as per Deed Book 1056, Page 56.”

Deed Book 1056, Page 56, contains the deed conveying all of Tracts 1 and 2 from the




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                                  Opinion of the Court



Roney family, “subject to the right of way of the private road shown on [Plat Book No.

39 at Page 160,]” which is the 1989 Map.

      The trial court granted Defendants’ summary judgment motion, determining

that Defendants are entitled to have that portion of the private road upon which

Plaintiffs constructed their gates to remain open and to require Plaintiffs to remove

the gates. We conclude that Defendants were not entitled to summary judgment for

the reasons stated below.

      There is nothing on the 2000 Map or other documents in the chain of title which

suggests that the parties intended that the private road comprising the 2000

Easement had to remain “open.” Therefore, we conclude that Plaintiffs “may erect

gates across [the 2000 Easement] when necessary to the reasonable enjoyment of

[their] estate, provided they are not of such nature as to materially impair or

unreasonably interfere” with the purpose of the easement to Defendants’ tract.

Chesson, 224 N.C. at 293, 29 S.E.2d at 909; see Runyon v. Paley, 331 N.C. 293, 305,

416 S.E.2d 177, 186 (1992) (holding that the meaning of unambiguous language

contained in an easement is a question of law). Whether the gates, if erected on the

2000 Easement, would actually materially impair or unreasonably interfere with

Defendants’ right of egress and ingress is not an issue before us.

      We conclude further that Plaintiffs are, nonetheless, bound by the language

contained in the 1989 Map with respect to the private road constituting the 1989



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Easement: Plaintiffs must keep this easement “open.” See Setzer, 286 N.C. at 539,

212 S.E.2d at 157. As such, we conclude that Plaintiffs are not allowed to install

gates along the 1989 Easement. We further conclude that Defendants, as the owners

of Tract 4, have the right to enforce this restriction.

      We note that there is some discrepancy as to exactly whether some part of the

2000 Easement is actually part of the 1989 Easement as well. If so, that portion

would be bound by the “open” requirement.            Indeed, there is some discrepancy

between the 1989 Map and the 1996 Map as to the exact location of the 1989

Easement.

      In any event, the record shows that Plaintiffs’ tracts, Tracts 1 and 3, contain

portions of both the 1989 Easement and the 2000 Easement over which Defendants

are allowed to travel to access Roney Lineberry Road from Tract 4. And though

Plaintiffs assert in their brief on appeal that the gates are on the 2000 Easement (and

not the 1989 Easement), there is nothing in the record before us that either party

points to which indicates upon which easement the gates are actually located. To be

entitled to summary judgment, it was Defendants’ burden to establish conclusively

that the gates were on the 1989 Easement. Since Defendants have failed in meeting

this burden, Defendants were not entitled to summary judgment.

      Similarly, Plaintiffs are not entitled to summary judgment, as they failed to

meet their burden of proving as a matter of law that their gates are on the 2000



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Easement, and not on the 1989 Easement, and that the gates do not actually impair

or otherwise unreasonably interfere with Defendants’ use of that easement.

      We, therefore, reverse the trial court’s grant of summary judgment and remand

this matter for further proceedings not inconsistent with this opinion.

      REVERSED.

      Judges INMAN and COLLINS concur.




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