Prentice v. Roberts , 32 N.C. App. 379 ( 1977 )

232 S.E.2d 286 (1977)

Chester H. PRENTICE and Betty L. Prentice
v.
Talmadge ROBERTS and Linda Roberts.

No. 7628SC635.

Court of Appeals of North Carolina.

February 16, 1977.

McGuire, Wood, Erwin & Crow by Charles R. Worley, Asheville, for plaintiffs-appellants.

Bennett, Kelly & Cagle by Robert F. Orr, Asheville, for defendants-appellees.

HEDRICK, Judge.

Plaintiffs assign as error the summary judgment entered for defendants. The question presented by this assignment of error is whether the descriptions of the lot and the easement in the sales agreement and the property sketch are patently or latently ambiguous.

". . . The only requisite in evaluating the written contract, as to the certainty of the thing described, is that there be no patent ambiguity in the description. There is a patent ambiguity when the terms of the writing leaves the subject of the contract, the land, in a state of absolute uncertainty, and refer to nothing extrinsic by which it might possibly be identified with certainty. . . .

A patent ambiguity raises a question of construction; a latent ambiguity raises a question of identity. If the ambiguity is latent, evidence dehors the contract is both competent and necessary. A description is said to be latently ambiguous if it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made. In such case plaintiff may offer evidence, parol and other, with reference to such extrinsic matter tending to identify the property, and defendant may offer such evidence with reference thereto tending to show impossibility of identification, i. e., ambiguity." (Citations omitted) Lane v. Coe, 262 N.C. 8, 12-13, 136 S.E.2d 269, 273 (1964). See also Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

An easement is an interest in land and is subject to the statute of frauds. Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541 (1953); Gruber v. Eubank, 197 N.C. 280, 148 S.E. 246 (1929). "No particular words are necessary to constitute a grant, and any words which clearly show the intention to give an easement, which is by law grantable, are sufficient to effect that purpose, provided the language is certain and definite in its terms. . . . The instrument should describe with reasonable certainty the easement created and the dominant and servient tenements." (Citations omitted). Hensley v. Ramsey, 283 N.C. 714, 730, 199 S.E.2d 1, 10 (1973). When the grant does "describe with reasonable certainty the easement created and the dominant and servient tenements," but does not definitely locate it, the easement is not held void for uncertainty under the statute of frauds, but instead, the grantee is entitled to a reasonable and convenient way located in the manner and within the limits set forth in the grant. Andrews v. Lovejoy, 247 N.C. 554, 101 S.E.2d 395 (1958); Borders v. Yarbrough, supra; Feldman v. Gas Pipe Line Corp., 9 N.C.App. 162, 175 S.E.2d 713 (1970); 28 C.J.S. Easements § 80 (1941). The easement may also be located by the practical location by the grantee, acquiesced in by the grantor. Borders v. Yarbrough, supra; Annot. 110 A.L.R. 174, 178-180 (1937).

The property sketch referred to in the sales agreement, and made a part of the record on appeal is quite specific and depicts two tracts of land lying on the east side of a road running generally north and south. The northern tract is labeled "Roberts" and the southern tract is labeled "Nanney." At the eastern side of the Roberts' tract is depicted the four sides of a smaller tract. The easement referred to in the sales agreement is shown on the property sketch and runs from the road through the Nanney and Roberts tracts ending at the smaller parcel on the east side of the Roberts' tract. The property sketch is in considerable more detail than herein described; however, we do not feel it necessary to have the sketch reproduced in this opinion.

We hold the court erred in concluding that the description of the lot and easement contained in the sales agreement and property sketch is patently ambiguous. The description is latently ambiguous, and it may be possible to locate the property by the use of extrinsic evidence referred to in the sales agreement and sketch. The sales agreement and sketch also describe the easement intended to serve the ½-acre lot with reasonable certainty.

Plaintiffs assign as error the denial of their motions for partial summary judgment. There can be no adjudication of plaintiffs' claim, or any part thereof, until there has been a resolution of the issue of whether the property sketch was attached to and made a part of the sales agreement. This assignment of error is not sustained.

For the reasons stated the order denying plaintiffs' motion for partial summary judgment is affirmed, the order allowing defendants' motion for summary judgment is reversed, and the cause is remanded to the superior court for further proceedings.

Affirmed in part; reversed and remanded in part.

VAUGHN and CLARK, JJ., concur.