Billie J. HENSLEY and wife, Joyce Hensley
v.
Clyde RAMSEY.
No. 77.
Supreme Court of North Carolina.
August 31, 1973.*7 Lamar Gudger, Asheville, for defendant appellant.
Roberts & Cogburn, by Max O. Cogburn, Asheville, for plaintiffs appellees.
BOBBITT, Chief Justice.
At the conclusion of plaintiffs' evidence defendant moved for a directed verdict in *8 his favor "for lack of the plaintiffs' evidence to sustain a case against the defendant." The record indicates the court then heard argument by defendant's counsel in support of this motion but is silent as to the content of such argument. Defendant's motion was denied. At the conclusion of all the evidence the record shows simply: "Defendant renews his motion for directed verdict. Motion denied."
Nothing in the record indicates that defendant, subsequent to the return of the verdict, moved for a directed verdict or for judgment notwithstanding the verdict or made any other motion. Nor does the record indicate that the court at that time considered on its own motion whether a directed verdict should have been entered.
Defendant excepted to and assigns as error the denial of his motions for a directed verdict. Plaintiffs contend that defendant's failure to comply with the requirements of Rule 50, Rules of Civil Procedure, G.S. § 1A-1, precludes consideration of these assignments on this appeal.
We note first that Rule 50(a) requires that "[a] motion for a directed verdict shall state the specific grounds therefor." Cited decisions based on the identical provision in Rule 50(a) of the Federal Rules [Title 28, U.S.C.A., Federal Rules of Civil Procedure, Rules 43 to 51, pp. 375-376] support the statement that "[t]he requirement that grounds be stated on a motion for a directed verdict is mandatory." 9 Wright & Miller, Federal Practice and Procedure, § 2533, p. 579 (1971). The better practice is to set forth the specific grounds in a written motion. 9 Wright & Miller, op. cit. § 2533, p. 581. If the movant relies upon an oral statement for such specific grounds, a transcript thereof must be incorporated in the case on appeal.
Apart from the failure of the record to disclose the specific grounds urged by defendant in support of his motions for a directed verdict, whether a directed verdict should have been granted is not presented on this appeal.
Rule 50(b), which bears the caption, "Motion for judgment notwithstanding the verdict," is composed of sections (1) and (2).
Rule 50(b)(1) provides:
"Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the submission of the action to the jury shall be deemed to be subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. In either case the motion shall be granted if it appears that the motion for directed verdict could properly have been granted. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the judge may allow the judgment to stand or may set aside the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the judge may direct the entry of judgment as if the requested verdict had been directed or may order a new trial. Not later than ten (10) days after entry of judgment or the discharge of the jury if a verdict was not returned, the judge on his own motion may, with or without further notice and hearing, grant, deny, or redeny a motion for directed verdict made at the close of all the evidence that was denied or for any reason was not granted." (Our italics.)
Rule 50(b) authorizes "a `reserved directed verdict' motion practice." Phillips *9 Supplement (1970) to the Second Edition of McIntosh, N.C. Practice and Procedure, § 1488.35, p. 29, hereafter cited as Phillips. The reservation of final ruling on a motion for a directed verdict affords the basis for the post-verdict motion for judgment notwithstanding the verdict.
Our Rule 50(b)(2) provides:
"An appellate court, on finding that a trial judge should have granted a motion for directed verdict made at the close of all the evidence, may not direct entry of judgment in accordance with the motion unless the party who made the motion for a directed verdict also moved for judgment in accordance with Rule 50(b)(1) or the trial judge on his own motion granted, denied or redenied the motion for a directed verdict in accordance with Rule 50(b)(1)." (Our italics.)
Our Rule 50(b)(2) has no counterpart in Federal Rule 50(b).
In Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 91 L.Ed. 849, 67 S. Ct. 752 (1947), the Supreme Court of the United States held that, in the absence of a post-verdict motion for judgment notwithstanding the verdict in accordance with Federal Rule 50(b), the Circuit Court of Appeals had no authority to enter judgment in accordance with the defendant's motion for a directed verdict but was limited to the award of a new trial. Accord, Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177 (1948). The reasons underlying the decisions in Cone and in Globe Liquor Co. are set forth in the opinions of Justice Black. See also, Comment in Phillips, op. cit., p. 33, n. 14. For criticisms of these decisions, see 5A Moore's Federal Practice, ¶ 50.12, pp. 2367-74 (2d Ed.1971). Seemingly to free the trial judge from dependence upon the initiative of a litigant after verdict to renew his motion for a directed verdict or for judgment notwithstanding the verdict, the General Assembly amended Rule 50(b) as originally proposed, see Chapter 954, Session Laws of 1967, by substituting therefor Rule 50(b)(1) and (b)(2) as quoted above. Chapter 895, Session Laws of 1969. See Elster, Highlights of Legislative Changes to the New Rules of Civil Procedure, 6 Wake Forest Intra.L.Rev. 267, 278-80 (1970).
Now under the italicized portion of Rule 50(b)(1) and under the italicized portion of Rule 50(b)(2), as quoted above, the trial judge on his own motion, within the time prescribed in Rule 50(b)(1), may grant, deny, or redeny the motion for a directed verdict in accordance with Rule 50(b)(1).
We note that Rule 41 and Rule 50(b) were rewritten and enacted by Sections 10 and 11, respectively, of Chapter 895, Session Laws of 1969. Whether the court, after the entry of judgment and within the time prescribed by Rule 50(b)(1), upon motion or on its own motion may set aside the verdict and judgment and order a voluntary dismissal without prejudice upon such terms and conditions as justice requires, is not presented on this appeal. See Rule 41(a)(2); also, King v. Lee, 279 N.C. 100, 181 S.E.2d 400 (1971).
Since the defendant made no post-verdict motion and since the trial judge after verdict did not of his own motion consider whether a directed verdict should have been entered, this Court "may not direct entry of judgment in accordance with the motion" by reason of the express terms of Rule 50(b)(2).
We consider now whether defendant's other assignments of error entitle him to a new trial.
Evidence offered by defendant was sufficient to support findings that W. W. Chambers, from whom plaintiffs derive their title, acquired the property now owned by plaintiffs subsequent and subject *10 to the easement which the Duncans had previously conveyed to the Buckners, as appurtenant to the property conveyed by the Duncans to the Buckners, that is, "a right-of-way to a road across said Duncan's lot along said Lankford's line."
A deed which conveys a portion of the grantor's property and in addition grants the right of ingress and egress over other lands of the grantor to a highway creates an easement in favor of and appurtenant to the land conveyed and subjects the remaining land of the grantor to the burden of such easement. Andrews v. Lovejoy, 247 N.C. 554, 101 S.E.2d 395 (1958). "An appurtenant easement is one which is attached to and passes with the dominant tenement as an appurtenance thereof. . . ." Shingleton v. State, 260 N.C. 451, 454, 133 S.E.2d 183, 185 (1963).
Evidence offered by defendant was sufficient to support findings that plaintiffs' ownership of the 1.88 acres was based on a connected chain of title to the Duncans. In connection therewith, we note that, upon the death of W. W. Chambers, a presumption arose that he died intestate. Collins v. Coleman & Co., 262 N. C. 478, 480, 137 S.E.2d 803, 805 (1964), and cases cited; Stansbury, North Carolina Evidence § 250 (2d Ed.1963).
Evidence offered by defendant was sufficient to support findings that defendant's ownership of the easement over the strip in controversy is based on a connected chain of title to the Duncans and that defendant, in respect of the easement, has a better title from the common source. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889).
Defendant relies solely upon an easement created by express grant. "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." 28 C. J.S., Easements § 24; Borders v. Yarbrough, 237 N.C. 540, 542, 75 S.E.2d 541, 543 (1953); Oliver v. Ernul, 277 N.C. 591, 597, 178 S.E.2d 393, 396 (1971).
We hold the easement granted by the Duncans to the Buckners sufficient in these respects. The easement granted is a right-of-way across the Duncan lot. The Flat Creek-Georgetown Road was the only public road accessible to the Buckners by crossing the Duncan lot. The location of the right-of-way is fixed as along the Langford (Lankford) line. Hensley testified that defendant "was claiming 10 foot."
"Grantees take title to lands subject to duly recorded easements which have been granted by their predecessors in title." Waldrop v. Brevard, 233 N.C. 26, 30, 62 S.E.2d 512, 514 (1950); Borders v. Yarbrough, supra, 237 N.C. at 542, 75 S.E.2d at 543; Reed v. Elmore, 246 N.C. 221, 230, 98 S.E.2d 360, 366 (1957).
"The law contemplates that a purchaser of land will examine each recorded deed or other instrument in his chain of title, and charges him with notice of every fact affecting his title which such an examination would disclose." Higdon v. Jaffa, 231 N. C. 242, 248, 56 S.E.2d 661, 665 (1949); Hege v. Sellers, 241 N.C. 240, 248, 84 S.E. 2d 892, 898 (1954). Consequently, when plaintiffs purchased the property described in the complaint they were charged with notice of the easement to which their property was subjected by the terms of the deed (D-5) from the Duncans to the Buckners.
Defendant excepted to the submission of each of the three issues and to instructions of the court with reference thereto.
*11 The first issue, "Was the easement held by the defendant terminated by adverse possession by the plaintiffs?", was answered "No." The wording of the issue implies that plaintiffs conceded that defendant had an easement but contended it had been terminated by plaintiffs' adverse possession.
An easement by grant as set forth in his chain of title is the only easement claimed by defendant. This involves only a strip of land of undefined width within the boundaries of the 1.88 acres described in P-1 and shown on P-2 extending from the northern boundary of the Flat Creek-Georgetown Road along and immediately west of the Wheeler (formerly Garrison) line 308 feet, more or less, to the adjoining parcel of land owned by defendant.
Since the plaintiffs did not concede defendant owned the easement claimed by defendant, the only explanation of the wording of the first issue is that indicated by the following excerpt from the charge: "[T]here's been some evidence which tends to show . . . that a road was built to the property owned by Clyde Ramsey . . . before Duncan ever deeded it out and before the easement was granted. Now, if you should find that to be the fact, members of the jury, then I instruct you that the easement that was granted to Buckner and later on down the line got into the defendant Ramsey, was to that road that existed at that time and that road only." Defendant's exception to this instruction was well taken. To what extent the route used by the Duncans prior to their deed to the Buckners crossed the remaining Duncan lands or the land of George Langford, Mrs. Duncan's uncle, is immaterial. The Duncans could not grant an easement over any land except that which they then owned.
In connection with the first issue, the court also stated: "[T]he court instructs you . . . that the defendant did come into some easement by these deeds." The impression prevails that the thrust of the court's instructions with reference to adverse possession was directed solely to such portion of the plaintiffs' land as was included within the route used by the Duncans prior to their deed to the Buckners. [Note: The injunction portion of the judgment is in accord with that view.]
The second issue, "Did the defendant trespass upon the property of the plaintiffs?", was answered "Yes." In connection therewith the court instructed the jury: "[I]f you should find that the road was there before the easement was granted by the Duncans and . . . that this easement referred specifically to that road, that the holder of the easement has no right to move that road to some place else on the property without the permission of the person owning the property." This instruction involves the same error, namely, that the easement granted by the Duncans to the Buckners related to an undefined course partly through Duncan lands and partly through Langford lands to the Flat Creek-Georgetown Road rather than to the strip of land described in the Duncan-Buckner deed over which the Duncans had authority to grant an easement.
Nothing in the evidence suggests that the use of any route or wagon road in whole or in part on the Langford (now Wheeler) land was other than permissive.
The court instructed the jury it would be their duty to answer the first issue, "Yes," if satisfied from the evidence and by its greater weight "that the plaintiff possessed his land under known boundaries and with color of title, in actual, open, hostile, exclusive and continuous possession, that such possession was hostile to the use by the defendant of his easement for a continuous period of at least seven years.. . ." (Our italics.) Thus, the court treated plaintiffs' recorded deed dated 17 *12 March 1960 from Frank Chambers (unmarried) solely as color of title.
Assuming, but not conceding, that plaintiffs had adverse possession of the controverted strip for seven years, such possession would be insufficient to "terminate" defendant's easement. There was evidence to support findings that plaintiffs owned the 1.88 acres by a connected chain of title to the Duncans. If this evidence was accepted, their deed from Frank Chambers constituted a link in a valid chain of title to the 1.88 acres.
"Color of title is generally defined as a written instrument which purports to convey the land described therein but fails to do so because of a want of title in the grantor or some defect in the mode of conveyance." Price v. Tomrich Corp., 275 N. C. 385, 391, 167 S.E.2d 766, 770 (1969). "Color of title is that which gives the semblance or appearance of title, but is not title in factthat which, on its face, professes to pass title, but fails to do so because of a want of title in the person from whom it comes or the employment of an ineffective means of conveyance. It is a title in appearance only. If an instrument actually passes the title, it is clear that it is not `color of title.' The term implies that a valid title has not passed." 3 Am.Jur.2d, Adverse Possession § 105, p. 188. Accord, Justice v. Mitchell, 238 N.C. 364, 366, 78 S.E.2d 122, 124-125 (1953), and cases cited.
A valid deed, nothing else appearing, may serve as color of title. Price v. Tomrich, supra, 275 N.C. at 392, 167 S.E. 2d at 770. However, when it is shown that the landowner has a good title based on a connected chain of title to a common source, such landowner will not be permitted to ignore a duly recorded easement granted by his predecessors in title by the fiction of treating his valid deed merely as color of title and thereby defeat an outstanding valid easement by adverse possession for a period of seven years.
The last quoted portion of the charge is erroneous and defendant's exceptive assignment of error thereto is well taken.
On cross-examination of defendant, plaintiffs' counsel was permitted over defendant's objection to elicit testimony from defendant tending to show that defendant had acquired land contiguous to the parcel conveyed by the Duncans to the Buckners and from this after-acquired land had access to the Flat Creek-Georgetown Road. The admission of this testimony was erroneous. When an easement is created by a deed, the existence or nonexistence of other access to the highway does not affect the easement. Andrews v. Lovejoy, supra, 247 N.C. at 557, 101 S.E.2d at 398.
It is unnecessary to discuss any of defendant's remaining assignments of error. For the errors indicated, the defendant is awarded a new trial.
New trial.
*13 APPENDIX