BUILDERS SUPPLIES COMPANY OF GOLDSBORO, NORTH CAROLINA, INC.
v.
Norwood A. GAINEY.
No. 42.
Supreme Court of North Carolina.
November 15, 1972.*452 Smith & Everett, by James N. Smith, Goldsboro, for plaintiff.
Taylor, Allen, Warren & Kerr, by John H. Kerr, III, Goldsboro, for defendant.
LAKE, Justice.
The first trial of this action in the superior court resulted in a judgment for the defendant upon a directed verdict. On appeal from that judgment, the Court of Appeals held the evidence presented at that trial was sufficient to withstand a motion for a directed verdict and granted a new trial. Builders Supplies Co. v. Gainey, 10 N.C.App. 364, 178 S.E.2d 794. The Court of Appeals was then of the opinion that the reservation in the deed from Bryan to *453 the defendant gave Bryan an easement, the exact location of which within the larger tract conveyed to the defendant could be fixed by Bryan within the rule of Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678, and Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541. This Court denied certiorari. Builders Supplies Co. v. Gainey, 278 N.C. 300, 180 S.E.2d 178. Such denial does not constitute approval of the reasoning upon which the Court of Appeals reached its decision. See: Concurring opinion by Mr. Justice Frankfurter in Brown v. Allen, 344 U.S. 443, 491, 73 S. Ct. 397, 439, 97 L. Ed. 469, 507; State v. Case, 268 N.C. 330, 150 S.E.2d 509.
Upon the second trial in the superior court, the jury rendered a verdict in favor of the defendant, finding both (1) that the plaintiff is barred by laches from asserting any claim to the sand and gravel in question, and (2) that the plaintiff is not the owner of or entitled to remove such sand and gravel. The superior court thereupon entered judgment for the defendant and, upon appeal to it, the Court of Appeals found no error. Builders Supplies Co. v. Gainey, 14 N.C.App. 678, 189 S.E.2d 657. Upon such second appeal, the Court of Appeals was of the opinion that the reservation in Bryan's deed to the defendant and his wife gave Bryan not an easement nor an interest in the sand and gravel in place upon the tract in question but a profit a prendre.
We agree with the latter conclusion of the Court of Appeals that the right, if any, reserved by Bryan in its deed to the defendant and his wife was not an easement. An easement is a right to make some use of land owned by another without taking a part thereof. Richfield Oil Co. v. Hercules Gasoline Co., 112 Cal. App. 431, 297 P. 73; Webster, Real Estate Law in North Carolina, §§ 270, 309; 25 Am. Jur.2d, Easements, §§ 2, 4; 28 C.J.S. Easements § 3; Black's Law Dictionary.
A profit a prendre, though similar to and sometimes called an easement, see Powell on Real Property, § 405, differs therefrom in that it is the right to enter upon the land of another and to take therefrom some part or product thereof, game and fish being considered a part or product of the land for this purpose. Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365; Webster, Real Estate Law in North Carolina, § 309; 25 Am.Jur.2d, Easements, § 4; 28 C.J.S. Easements § 3f; Black's Law Dictionary. Profits a prendre are frequently called "rights of common." Webster, Real Estate Law in North Carolina, § 309; 25 Am.Jur.2d, Easements, § 4. See also Powell on Real Property, § 417. Customarily, at least, the grant of a profit a prendre does not preclude the grantor from exercising a like right upon the land or granting such right to others also.
The grant of a profit a prendre is to be distinguished from a conveyance of a present estate in such material in its natural state upon the land, such as a timber deed or a deed to unmined minerals. For example, the grant of a right to enter upon the grantor's land and cut and remove firewood therefrom for the grantee's own use would be a grant of a profit a prendre and would convey no present title to standing trees, whereas a deed to all the trees of a specified type and size upon a described tract of land would convey to the grantee the present title to such standing timber.
The intent of the parties, as disclosed by the conveyance, when read in the light of surrounding circumstances known to the parties, determines whether the conveyance is a grant of a profit a prendre or a grant of a present estate in the designated portion of the grantor's land, assuming the sufficiency of the deed otherwise. Annot., 66 A.L.R. 2d 978, 984. Unquestionably, the owner of land may, by a conveyance otherwise valid, convey a present estate in unmined minerals, retaining in himself the title to the other parts of his land, or may convey a present estate in such other parts of the land and retain in himself the title to the unmined minerals *454 therein. Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117; Hoilman v. Johnson, 164 N.C. 268, 80 S.E. 249; Outlaw v. Gray, 163 N. C. 325, 79 S.E. 676. Similarly, he may make a present conveyance, or reservation, of standing timber. Westmoreland v. Lowe, 225 N.C. 553, 35 S.E.2d 613. As is said in 54 Am.Jur.2d, Mines and Minerals, § 103, the owner of land "can divide his estate horizontally as well as vertically, so that title to the surface vests in one person and title to the minerals in another." As illustrated by conveyances of growing timber, this is not due to any peculiar quality in mineral substances. We perceive no basis for distinguishing in this respect between minerals and growing timber on the one hand and other identifiable substances constituting parts of the land of the grantor.
Sand and gravel are no less capable of identification and separation from other portions of the land than are many mineral ores in their natural state in the earth. As the Court of Appeals noted in its opinion, commercial gravel was said not to be a "mineral" in Lillington Stone Co. v. Maxwell, 203 N.C. 151, 165 S.E. 351, the question for decision being the right of the plaintiff to a refund of taxes paid on gasoline used in excavating gravel under a statute permitting such refund if the gasoline was used in the operation of "mining machinery." In 54 Am.Jur.2d, Mines and Minerals, § 8, it is said, "Generally, on the ground that they do not possess exceptional qualities or value, but are only part of the soil itself, sand, gravel and clay are not considered minerals, although there is some contrary authority." The circumstance that these substances are not included within the term "minerals," as used in statutes regulating commercial mining or relating to taxation, does not preclude these substances from being the subject of a conveyance while embedded in the earth. Sand and gravel are included in the definition of "minerals" in the Mining Act of 1971. G.S. § 74-49(6).
In Outlaw v. Gray, supra, the owner of land conveyed to the grantee, his heirs and assigns, "the right of entering in and upon the lands hereinafter described for the purpose of searching for all marl deposits and fossil substance, and for taking and removing therefrom said marl and fossil substance which he may find embedded in the earth of the said lands, and for mining and quarrying operations for that purpose to any extent he may deem advisable, but not to hold possession of any part of the said lands for any other purpose whatsoever." This Court said: "It must be admitted that the deed is sufficient in form to convey a fee in the land itself, had that been the subject of conveyance. That being so, it is sufficient to convey a fee in the mineral deposits described in it."
We are unable to distinguish Outlaw v. Gray, supra, from the case before us except that in that case the land, upon which the rights in question were to be exercised, was specifically described. Consequently, we conclude that the deed from Bryan to the defendant and wife was not intended to reserve a profit a prendre to Bryan but was intended to reserve in Bryan the fee simple estate in the sand and gravel upon a tract of 35 acres to be selected by Bryan within the larger tract conveyed. Had the reservation related to the entire tract conveyed to the defendant and wife, we think it unquestionable that the reservation would have been sufficient to retain in Bryan a transferable fee simple estate in the sand and gravel upon the land.
We turn, therefore, to the sufficiency of the description in the reservation of the land to which it relates. In Cathey v. Lumber Company, 151 N.C. 592, 66 S.E. 580, this Court, speaking through Justice Brown, said:
"It is self-evident that a certain part of a whole cannot be set apart unless the part can be in some way identified. Therefore, where a grantor undertakes *455 to convey a part of a tract of land, his conveyance must itself furnish the means by which the part can be located, otherwise his deed is void, for it is elementary that every deed of conveyance must set forth a subject-matter, either certain within itself, or capable of being made certain by recurrence to something extrinsic to which the deed refers."
In Katz v. Daughtrey, 198 N.C. 393, 151 S.E. 879, Chief Justice Stacy, speaking for the Court, said:
"That the deed is void for vagueness and uncertainty of description would seem to admit of no doubt. It fails to describe with certainty the property sought to be conveyed, and it contains no reference to anything extrinsic, which by recourse thereto is capable of making the description certain under the principle of, `Id certum est quod certum reddi potest.' [Citations omitted.]
"The defendant's deed presumably attempts to convey twenty-five acres of a fifty-acre tract (though this may be doubted) without fixing the beginning point or any of the boundaries of the twenty-five acres. This is too vague and indefinite to admit of parol evidence to fit the description to the thing intended to be conveyed."
In McDaris v. "T" Corporation, 265 N. C. 298, 144 S.E.2d 59, Justice Clifton Moore, speaking for the Court, said: "`Parole evidence is admissible to fit the description to the land. G.S. § 8-39. "Such evidence cannot, however, be used to enlarge the scope of the descriptive words."' Baldwin v. Hinton, 243 N.C. 113, 90 S.E.2d 316. The purpose of parol evidence is to fit the description to the property, not to create a description."
In Gas Co. v. Day, supra, and in Borders v. Yarbrough, supra, this Court sustained claims of easements on the basis of the well settled rule that where a grant of an eastment of way does not locate the way upon the grantor's land, which land is described sufficiently, a subsequent, actual location of the way upon the described tract by the grantee, acquiesced in by the owner of the servient estate, locates the way sufficiently to enable the courts to protect the right of the grantee therein.
Our research has disclosed no decision by this Court applying to grants of possessory interests in land the above mentioned rule applicable to the location of easements of way. In American Law of Property, § 8.21, it is said:
"A possessory interest, as contrasted with an incorporeal interest, involves the exclusive possession of a certain space. Hence its creation requires the designation of the space to be occupied. An easement authorizes the limited use of land within space occupied by another. Its nature does not require the precise description of that space which the creation of a possessory interest does."
In Thompson on Real Property, § 3053, it is said:
"A deed to a specified number of acres out of a larger tract with the right in the grantee to select the location of his acreage will be valid provided the grantee makes a selection. No title passes until the selection is made. The deed itself only gives the right to make the selection, and to enforce a conveyance of the land that may be chosen in the manner provided by the deed. Until a selection is made, the grantee's continuing right thereof will pass to subsequent grantees. A right given the vendee to select a definite number of acres of land out of a larger tract affords the means of rendering the description certain."
In Harris v. Woodard, 130 N.C. 580, 41 S.E. 790, Justice Clark, later Chief Justice, said:
"Here there is no subject-matter which is either definite in itself or capable of being reduced to a certainty by recurrence to something to which the deed refers. No beginning point, nor *456 directions, nor distances are given, and there is nothing which authorizes any one to lay off the lines of any particular 3 acres out of the 40 in the tract, which tract is bounded by the parties named." (Emphasis added.)
It is not necessary in the present case for us to decide whether the above mentioned rule with reference to the subsequent location of an easement of way applies also to a deed which purports to convey an undescribed smaller tract contained within a described larger tract, the grantee being authorized to locate such smaller tract. In any event, as shown by the foregoing quotation from Thompson on Real Property, no title passes under such a deed until the selection is made. Prior to that time the grantee would have, at the most, a contractual right to acquire title.
"[A]n executory written contract to sell or convey real property may be abandoned or cancelled by mutual agreement orally expressed." Scott v. Jordan, 235 N.C. 244, 69 S.E.2d 557. The undisputed evidence is that when the defendant requested Bryan to proceed to lay off the 35 acre tract to which its reservation related, Bryan, through its president, informed the defendant that it did not want any of it and, so far as Bryan was concerned, the entire property was the defendant's. At least six more years passed before employees of a successor to Bryan went upon the property and staked out a tract of approximately 35 acres. At least another six years passed before the plaintiff took any steps preparatory to the removal of sand and gravel from the property.
While the owner of a vested estate in unmined minerals, or like substances, does not lose such rights by a mere nonuser, Hoilman v. Johnson, supra, one who has only a contractual right to acquire such an estate may be barred by laches from enforcing it. Laches is the negligent omission for an unreasonable time to assert a right enforceable in equity. Stell v. Trust Co., 223 N.C. 550, 27 S.E.2d 524. "In equity, where lapse of time has resulted in some change in the condition of the property or in the relations of the parties which would make it unjust to permit the prosecution of the claim, the doctrine of laches will be applied. Hence, what delay will constitute laches depends upon the facts and circumstances of each case." Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83.
In 58 C.J.S. Mines and Minerals § 162, it is said:
"Where the grantor reserves not the title but a mere equitable right to enter on the land and drill an oil well, such right may be barred by an unreasonable delay in exercising it; a party holding such an equitable right cannot delay its exercise until time shall demonstrate whether or not its right is of sufficient value to warrant its exercise, but, on the contrary, the very fact that the property has increased in value during his delay is an important factor in invoking the doctrine of laches."
We agree with the Court of Appeals that the evidence of abandonment by Bryan, followed by the long delay of the plaintiff, and those under whom it claims, in asserting its alleged right to take sand and gravel from the tract ultimately selected by it, coupled with evidence that the defendant had in the meantime cleared the land and removed therefrom much of the overburden, which work was necessary in order to have access to the sand and gravel thereunder, fully justified the submission to the jury of the issue of laches.
We find no error in the decision of the Court of Appeals which would justify a reversal thereof.
No error.