![]() With regard to the extrinsic evidence the defendants contended that the location of the easement is ambiguous because defendants stated, “When we purchased our property in 1994 there were no visible roads leading to the lands of the Plaintiff.” The court correctly applied the well established law of North Carolina concerning such evidence. When, as here, the ambiguity in the description is not patent but latent - referring to something extrinsic by which identification might be made - the reservation will not be held to be void for uncertainty.” Implicit in this statement, standing alone, is that if there is a reference in the description to extrinsic evidence, “the reservation will not be held to be void for uncertainty.” It should be obvious that if the evidence referred to in the description fails to locate the easement with reasonable certainty, the grant or reservation will fail also. When the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land - never to create description. The Court clouds the logic of this statement when it states that the “law endeavors to give effect to the intention of the parties, whenever that can be done consistently with rational construction. Literally, this means that the description is rendered void only after the evidence referred to in the grant proves inadequate to locate the easement. see also Bee Tree Missionary Baptist Church v. “It is to be stressed that an alleged grant or reservation of an easement will be void and ineffectual only when there is such an uncertainty appearing on the face of the instrument itself that the court - reading the language in the light of all the facts and circumstances referred to in the instrument - is yet unable to derive therefrom the intention of the parties as to what land was to be conveyed. The Court had little trouble ascertaining that the ambiguity of the description was latent, thus permitting parol evidence as to the location. It is interesting to note that the Defendants counterclaimed for a determination of their easement rights based upon virtually identical language. “Grantor's reserve the right to the use of spring water according to such use as is now made by them, along with the right of ingress, egress and regress in and to the above described property, giving and granting to Grantees a like right of ingress, egress and regress over the lands retained by Grantors as such right of way now exists on said lands.” (emphasis in the original). ![]() The defendants contended that the trial court erred because the deed conveying the right of way was not valid because of the lack of an adequate description. In 2001, the trial judge granted partial summary judgment finding that the plaintiffs were entitled to use the recorded easement and that the defendants were entitled to: “he right to take water from the spring which is located on the lands of the Plaintiffs, which spring is the spring which was providing water to the lands now owned by Defendants on October 24, 1967, together with the right to maintain repair and place a reservoir at said spring and pipeline leading from said reservoir, along its then existing route to the lands of Defendants.” After a subsequent trial, the jury fixed the location and width of plaintiffs' right of way on defendants' property.ĭefendants appealed, alleging that the trial court erred in granting partial summary judgment in favor of the plaintiffs and by allowing the use of a deposition of a former owner of the plaintiffs' property, on the grounds that she was unavailable. The defendants denied this allegation and claimed that they had an easement across plaintiffs' property for the use of a spring on plaintiffs' property. Plaintiffs filed a complaint in 1999 against the defendants alleging that they intentionally blocked a recorded easement running across defendants' property.
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