Builders Supplies Co. of Goldsboro, NC v. Gainey , 10 N.C. App. 364 ( 1971 )

178 S.E.2d 794 (1971) 10 N.C. App. 364

BUILDERS SUPPLIES COMPANY OF GOLDSBORO, NORTH CAROLINA, Inc.
v.
Norwood A. GAINEY and wife, Edna Frances Gainey.

No. 708SC591.

Court of Appeals of North Carolina.

February 3, 1971. Certiorari Denied April 6, 1971.

Smith & Everett by James N. Smith, Goldsboro, for plaintiff appellant.

Taylor, Allen, Warren & Kerr by John H. Kerr, III, Goldsboro, for defendant appellees.

Certiorari Denied by Supreme Court April 6, 1971.

MORRIS, Judge.

Defendants contend that the reservation of the sand and gravel rights in the deed of Bryan Rock and Sand Company to defendants is void for vagueness, but if not void for vagueness, constituted a right extending only to Bryan Rock and Sand Company to select the 35-acre tract.

We agree with defendants that the easement now before us leaves a lot to be desired with respect to certainty and clarity and suffers greatly when compared to the reservation approved in Reynolds v. B. V. Hedrick Gravel & Sand Co., 263 N.C. 609, 139 S.E.2d 888 (1964). Nevertheless, we are, in our opinion, bound by the result reached in Piedmont Natural Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678 (1958), followed by this Court in Feldman v. Transcontinental Gas Pipe Line Corp., 9 N.C.App. 162, 175 S.E.2d 713 (1970).

In Piedmont Natural Gas Co. v. Day, supra, defendants' predecessors in title, for a valuable consideration, sold to Piedmont Natural Gas Company, Inc., its successors and assigns, "a right of way and easement for the purposes of laying, constructing, maintaining, operating, repairing, altering, replacing, and removing pipe lines (with valves, regulators, meters, fittings, * * * and appurtenant facilities) for the transportation of gas, oil, petroleum products, or any other liquids, gases or substances which can be transported through a pipe line, the Grantee to have the right to select the route (the laying of the first pipe line to constitute the selection of the route by the Grantee) under, upon, over, through, and across lands of the Grantor," (specifically describing a 50-acre tract). The Gas Company contracted to pay and did pay for damages to crops, timber, and fences resulting from the construction of the pipe line. The grantors of the easement subsequently conveyed to defendants a portion of the 50-acre tract, the deed containing an exception as to encumbrances with respect to Gas Company easement. Plaintiff brought suit to enjoin and restrain defendants from interfering with its easement rights. Defendants contended that the easement was void for indefiniteness by reason of the failure to locate the line or boundary of the easement and that the recorded instrument constituted a cloud on their title. Justice Higgins, writing for a unanimous Court, said:

"The easement here involved is not open to the objection the line along which the pipes were to be laid is not defined in the grant. The instrument itself gives the grantee the right to select the line. The plaintiff made the selection, constructed the line, paid the damages to the crops, timber and fences, and took from the grantors a full receipt for the payment. This occurred long before the defendants acquired title from the original grantors. Both the defendants' contract to purchase and their deed specifically state the land is free and clear of all encumbrances, `except those certain easements heretofore granted to Duke Power Company, Southern Bell Telephone and Telegraph Company, and Piedmont Natural Gas Company.'

`It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant.' Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541, 543. The defendants' contention the grant is void for uncertainty of description cannot be sustained."

In the case before us, plaintiff introduced evidence which, if believed, tended to show that Bryan Rock and Sand Company made the selection of the 35 acres and staked it off without objection from defendants, that defendants removed sand and gravel from the 330-acre tract up to the lines so staked off, that defendants subsequently assisted plaintiff in locating the stakes for a survey to be made of the 35-acre tract.

In light of Piedmont Natural Gas Co. v. Day, supra, and Feldman v. Transcontinental Gas Pipe Line Corp., supra, we are constrained to hold that the evidence presented was sufficient to withstand a motion for directed verdict.

The record before us is barren of the grounds for the motion for directed verdict. G.S. 1A-1, Rule 50(a) contains the requirement that "a motion for a directed verdict shall state the specific grounds therefor." Nor does the judgment supply the grounds. This Court has held that an appellant who failed to state specific grounds for his motion for directed verdict is not entitled, on appeal from the Court's refusal to allow the motion, to question the insufficiency of the evidence to support the verdict. Wheeler v. Denton, 9 N.C.App. 167, 175 S.E.2d 769 (1970). Conversely, if such a motion is granted, the adverse party who did not object at trial to the failure of the motion to state specific grounds therefor cannot raise the objection on appeal. Pergerson v. Williams, 9 N.C.App. 512, 176 S.E.2d 885 (1970). The record does not disclose an objection made at trial, nor does appellant raise the question on appeal. Therefore, and also because the Rules of Civil Procedure, at the time the trial of this matter had so recently become effective, we have reviewed the matter on its merits. Turner v. Turner, 9 N.C.App. 336, 176 S.E.2d 24 (1970).

Reversed.

BROCK and VAUGHN, JJ., concur.