Opinion
No. COA10-23
Filed 15 February 2011 This case not for publication
Appeal by Defendants from order entered 7 August 2009 by Judge Gary Locklear in Superior Court, Pender County. Heard in the Court of Appeals 18 August 2010.
Shipman Wright, LLP, by Gary K. Shipman and Matthew W. Buckmiller, for Plaintiffs-Appellees. Murchison, Taylor Gibson, PLLC, by Andrew K. McVey, for Defendants-Appellants.
Pender County No. 07 CVS 617.
Robert King, Ann King, Margaret Whaley, and A. William King (Plaintiffs) filed this action seeking injunctive relief and a declaratory judgment, as well as asserting alternative claims for breach of contract and an action to quiet title. Plaintiffs sought to enforce certain alleged easements over real property owned by Robert Orr and Marianne Orr (Defendants). Plaintiffs raised the following issues: (1) the existence of a "twelve-foot exception" running along the edge of Defendants' real property to a point located on Topsail Sound known as "Edens Landing;" (2) the existence of a sixty-foot right-of-way running along the edge of Defendants' real property, to access a family cemetery located therein; and (3) the boundaries of the family cemetery located on Defendants' real property. Defendants filed an answer and counterclaim on 23 April 2008, claiming to have obtained title to the alleged easements by adverse possession. Upon cross-motions for summary judgment, the trial court entered an order granting summary judgment in favor of Plaintiffs. Defendants appeal.
A. Factual Background I. The King Family
A.D. King and wife, Annie King, and L.E. Stanley and wife, Gaynelle Stanley, executed a quitclaim deed in 1932 conveying to A.W. King a large parcel of land known as "lot No. 1[,]" located in Pender County. This deed (the 1932 deed) was recorded in Book 429, page 46, Pender County Register of Deeds and contained the following language:
There is to be a 12 foot road excepted on the East side of the line between lots Nos. 1 2. . . . Edens Landing was not divided by the commissioners and all of the same was assigned and allotted to Gaynelle Smith Stanley, A.D. King and A.W. King in common stock.
A.W. King died intestate in 1972 and his real property was divided among his heirs. Pursuant to the division of the property, A.W. King's heirs prepared a map entitled, "Map of Survey of A.W. King Estate Division" (the Estate map). The Estate map was recorded in Map Book 13, page 2, Pender County Register of Deeds on 24 May 1974. The Estate map depicts six tracts of land bordering on Bishop's Creek and Topsail Sound in Topsail Township, and a seventh tract that does not adjoin the other six tracts. Running through the six contiguous tracts and ending at a point 724.11 feet along the eastern edge of Tract Six is a "sixty (60.0') foot right-of-way . . . not dedicated to the general public." There is also a King Family cemetery (the cemetery) located within Tract Six, though the cemetery was not depicted on the Estate map. The Estate map also shows that the six contiguous tracts were adjacent to real property owned by A.S. King. According to Plaintiffs' deposition testimony, which is unchallenged by Defendants, A.D. King was a party to the 1932 deed, and A.S. King was his son. A.S. King was the father of Robert King, who now owns the adjoining real property with his wife, Ann King. Robert King and Ann King do not currently own any of the tracts depicted on the Estate map.
Margaret Whaley was married to Homer King, the son of A.W. King. Homer King died in 1972. Margaret Whaley owns Tracts Five and Seven as shown on the Estate map and as described in a deed recorded in Book 473, page 83, Pender County Register of Deeds. Margaret Whaley's deed explicitly refers to the Estate map for "a more particular description" and contains the following language:
Together with a perpetual right-of-way easement for ingress and egress over and across that certain road leading from the land herein described to its intersection with Leeward Drive of Black Beard Cove Subdivision, said right-of-way easement being more particularly shown by broken lines on the [Estate map] above referred to.
A. William King is the son of Margaret Whaley and the grandson of A.W. King. A. William King does not currently own any of the tracts depicted on the Estate map.
II. The Orrs
The disputed property, as shown on the Estate map, is known as Tract Six. Defendants purchased Tract Six from Alma King Eubank and Thelma E. King in 1990. Defendants took title pursuant to a general warranty deed (the Orr deed), recorded in Book 757, page 948, Pender County Register of Deeds. The Orr deed contained the following language describing the real property:
Being all of Tract No. 6 of the A.W. King Division, containing 58.24 acres, more or less, as shown on a map thereof recorded in Map Book 13 at page 2 of the Pender County Registry.
Together with the rights of way and easements appurtenant thereto shown on the map recorded in Map Book 13 at page 2 and in Book 180 at page 88, Book 444 at page 25 and Book 444 at page 365, both of the Pender County Registry.
Subject to the easements shown on the map in Map Book 13 at page 2 and in the deed recorded in Book 429 at page 46, both of the Pender County Registry.
And being the identical lands shown on a map entitled "Survey Map for Robert C. Orr and wife, Marianne J. Orr," by Thompson Surveying Company, PA, dated July 1990 and recorded in Map Book 25 at page 119 of the Pender County Registry.
The Orr deed thus refers to a "Survey Map" prepared by Thompson Surveying Company (the Thompson map).
III. The Thompson Map
The Thompson map was recorded in Map Book 25, page 119, Pender County Register of Deeds on 9 August 1990. The Thompson map depicts a more detailed drawing of Tract Six, and shows a portion of Tract Five to the north. Also visible on the Thompson map are three features pertinent to the dispute: (1) a broken line labeled "60 feet easement to cemetery" which extends into Tract Six and follows the path of the sixty foot right-of-way depicted on the Estate map; (2) another broken line, labeled "12 Foot Road Exception" within the sixty foot cemetery easement that extends the length of Tract Six to the water line at Edens Landing; and (3) a plot of land within Tract Six marked by solid lines and described by clear metes and bounds and labeled "Cemetery[.]" The label for the "12 Foot Road Exception" contains the following reference: "per book 180, page 83 and book 429, page 46." Neither the cemetery nor the "60 feet easement to cemetery" contain such a reference.
IV. The Dispute
The dispute arose in 2005 when Defendants erected a gate (the gate) across the sixty foot right-of-way and prevented Plaintiffs from accessing the cemetery. Defendants also tore down a fence surrounding the cemetery and erected a new fence that contained a smaller area than the original fence.
Plaintiffs filed a complaint in Superior Court in Pender County seeking: (1) a declaratory judgment regarding the property rights and interests of Plaintiffs and Defendants in accessing and using the cemetery, the sixty foot right-of-way, and the twelve foot road exception; (2) a preliminary injunction restraining Defendants from "prohibiting Plaintiffs['] access to the cemetery and Plaintiff[s] King['s] and Whaley's use of the 60 foot easement and 12 foot road exception;" (3) damages for breach of contract as third-party beneficiaries of a contract between Defendants and Alma King Eubank and Thelma E. King; (4) in the alternative, a quiet title action alleging Plaintiffs had acquired title to the easements in question through adverse possession; and (5) a declaratory judgment and permanent injunction to remove the gate and enjoin Defendants from interfering with Plaintiffs' use of all easements and reasonable use of the cemetery. Defendants filed an answer and counterclaim alleging that, in the event the trial court determined that Defendants were not the record owners of the disputed real property, Defendants had obtained title to the property by adverse possession.
Plaintiffs also filed a petition requesting that the Clerk of Superior Court determine Plaintiffs' rights as to the cemetery, pursuant to N.C. Gen. Stat. § 65-75 (2007). The Clerk entered an order on 21 November 2007 (the Clerk's order) containing the following pertinent language:
N.C. Gen. Stat. § 65-75 was repealed effective 1 July 2007. The current provisions relating to "Access to and Maintenance of Abandoned or Neglected Cemeteries" may be found at N.C. Gen. Stat. § 65-101 et seq.
1. Plaintiffs shall have the right to access the Cemetery to restore, maintain and/or visit the Cemetery, provided that such access shall be subject to the following rules, restrictions, and limitations:
. . . .
(d) Plaintiffs shall access the Cemetery by traveling Willwood Lane to Willwood Lane Extension to the Cemetery and may not deviate in all entries and exits from the property.
. . . .
3. If final judgment in [respect to Plaintiffs' Complaint] is rendered in favor of . . . Plaintiffs and the [trial court] determines Plaintiffs have the 60-foot easement and 12-foot exception, Plaintiffs may, at that time, access the Cemetery using one of those means. If[,] however, Judgment is rendered in favor of Defendants, Plaintiffs may continue to access the Cemetery by traveling Willwood Lane to Willwood Lane Extension to the Cemetery.
Both Plaintiffs and Defendants filed cross-motions for summary judgment. In an order entered 7 August 2009, the trial court granted Plaintiffs' motion for summary judgment and denied Defendants' motion for summary judgment. The trial court concluded that Defendants took title to Tract Six subject to easements and other property interests in Defendants' chain of title, including the sixty foot right-of-way, the twelve foot exception extending to Edens Landing, and the rights of Plaintiffs and other members of the King family in and to the cemetery. The trial court further concluded that: (1) Robert King, Ann King, and Margaret Whaley had the right to use the twelve foot exception to Edens Landing as shown on the Thompson map; (2) Margaret Whaley had the right to use the sixty foot right-of-way as shown on the Estate map and the Thompson map; (3) Robert King, Ann King, and A. William King had the right to use the sixty foot right-of-way to gain access to the cemetery pursuant to the Clerk's order; and (4) the boundaries of the cemetery were, and should be, as they were depicted on the Thompson map. The trial court then concluded:
Defendants should be enjoined and restrained from denying . . . Plaintiffs access to the Cemetery using the 60' Easement; enjoined and restrained from denying . . . Robert King and Margaret Whaley the right to use the 12' Exception; and enjoined and restrained from denying . . . Margaret Whaley the right to use the 60['] Easement as access.
Defendants appeal.
B. Standard of Review
We review a trial court's order granting summary judgment de novo. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009). Summary judgment is properly granted "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Id., 678 S.E.2d at 353-54 (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007)). "`Under a de novo review, the court considers the matter anew and freely substitutes its own judgment' for that of the lower tribunal." Id., 678 S.E.2d at 354 (citations omitted).
C. The Twelve Foot Exception
Defendants contend that the trial court erred by granting summary judgment in favor of Plaintiffs as to the right of Robert King, Ann King, and Margaret Whaley to use the twelve foot exception to access Edens Landing as shown on the Thompson map. We agree.
We begin by noting that findings of fact are unnecessary in a summary judgment context. "There is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact." Insurance Agency v. Leasing Corp., 26 N.C. App. 138, 142, 215 S.E.2d 162, 165 (1975). However, "[a]lthough findings of fact are not necessary on a motion for summary judgment, it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment." Id. Thus, any "findings of fact" made by the trial court "insofar as they may resolve issues as to a material fact, have no effect on this appeal and are irrelevant to our decision." Id. In the present case, the trial court's order contains the following pertinent statements:
2. The 12' Exception Deed [(the 1932 deed] provides for a "12 foot road excepted on the East side of the line between lots Nos. 1 2" and that "Edens Landing was not divided by the commissioners and all of the same are assigned and allotted to Gaynelle Smith Stanley, A.D. King and A.W. King in common stock."
3. A.D. King is . . . Robert King's grandfather and A.W. King is . . . Margaret Whaley's father.
. . . .
6. A.W. King owned all of the property provided to him until his death. A.W. King died intestate and in 1972, his heirs, which include . . . Margaret Whaley, agreed upon a division of his property.
. . . .
12. A.S. King, the son of A.D. King and the father of . . . Robert King, owned property inherited from his father located immediately to the west of and abutting the property of A.W. King. A.S. King died intestate, and pursuant to a division of his property, . . . Robert King became the owner of the property abutting the property of A.W. King, and that property is presently owned by [Robert] King and his wife, [Ann King].
. . . .
17. All of the Plaintiffs are "heirs" of A.D. King.
At issue is the ownership of the twelve foot exception referred to in the 1932 deed. An "exception" clause in a deed has the effect of the grantor's retaining a portion of the property which would otherwise have been conveyed in the deed. Trust Co. v. Wyatt, 189 N.C. 107, 109, 126 S.E. 93, 94 (1925) ("by an exception[,] the grantor withdraws from the effect of the grant some part of the thing itself which is in esse and included under the terms of the grant."). Thus, the twelve foot exception described in the 1932 deed was not conveyed to A.W. King but instead was retained by A.D. King, L.E. Stanley, and Gaynelle Stanley. Plaintiffs contend that, as "heirs" of A.D. King, they are entitled to make use of the twelve foot exception. However, Plaintiffs would not merely be entitled to make use of the exception as if it were an easement, but would actually be owners in part of the twelve foot exception, assuming the following facts arguendo: (1) A.D. King retained ownership of the twelve foot exception for the remainder of his life; (2) all of A.D. King's real property was distributed pursuant to the Intestate Succession Act, Chapter 29 of the General Statutes; (3) all Plaintiffs are, in fact, heirs of A.D. King; and (4) none of Plaintiffs had otherwise been divested of their interest in the exception. We do not, however, have sufficient facts before us to make such a determination.
Defendants contend that the trial court's granting Plaintiffs' summary judgment motion was error as to the twelve foot exception because there was a genuine issue of a material fact. Specifically, Defendants challenge the underlying contention that the real property conveyed in the 1932 deed is the same real property as described in the Orr deed. Defendants presented an affidavit of Sherwin Cribb (Mr. Cribb), a real estate attorney, who averred as follows:
9. I have reviewed the deed set forth at Book 429, Page 46 [(the 1932 deed] referenced in the Orr Deed. Although the Orr Deed says that the Orrs took the property subject to the easements set forth at Book 429, Page 46, the deed at Book 429, Page 46 is for a separate tract of land and does not describe any easements on the Orr Property. . . . Neither of the referenced exceptions is on the Orr Property or is taken from the Orr property.
Plaintiffs contend that Mr. Cribb was not competent to provide such an opinion because his opinion was "demonstrably based on inadequate facts and data." Plaintiffs assert that Mr. Cribb did not have available to him all of the information which was available to the Thompson Surveying Company when it made the Thompson Map. However, the trial court's order does not reflect any consideration whatsoever of Mr. Cribb's affidavit, nor a ruling as to its admissibility.
Defendants contend that Mr. Cribb's affidavit raises a genuine issue of material fact as to exactly which tract of real property is subject to the 1932 deed, in that the real property described in the 1932 deed is not congruent with the real property described in the Thompson map and related deeds. Thus, Defendants raise a question regarding whether the real property described in the 1932 deed and the exception contained therein is actually the same real property purchased by Defendants. The issue of whether the 1932 deed pertains to Defendants' property and the alleged exception is a material issue because, if the real property described in the 1932 deed is not the same real property depicted in the Estate map, the twelve foot exception is not located where Plaintiffs assert it is, and it may not be a part of Tract Six.
Because of this question of fact, the trial court erred in granting Plaintiffs' summary judgment motion as to the ownership or right to use the twelve foot exception. We must remand to the trial court to make a proper determination as to whether the 1932 deed and the twelve foot exception are, in fact, the same real property that was later divided in the Estate map, as well as findings regarding what happened with that real property prior to Defendants taking title to Tract Six.
Plaintiffs contend, as an alternative ground supporting the trial court's award of summary judgment to Plaintiffs, that they have acquired easements in the twelve foot exception by both prescription and implication from prior use. However, because Mr. Cribb's affidavit raises a genuine issue of material fact as to the purported ownership of the real property, we are unable to address Plaintiffs' arguments. Without knowing which party has ownership of the real property, we cannot determine whether any of Plaintiffs have adversely possessed the real property. A determination of whether Plaintiffs have acquired any easements, either by prescription or implication from prior use, involves significant factual determinations relying on the conflicting testimony of the parties about their use and intent. Such determinations are for a jury to decide.
D. Sixty Foot Right-of-Way to the Cemetery I. Margaret Whaley
Defendants next argue that the trial court erred by granting summary judgment in favor of Margaret Whaley as to the issue of a sixty foot right-of-way across Tract Six that connected her real property to the cemetery located on Tract Six. We disagree. We note that Defendants do not appear to be challenging the right of Plaintiffs to access the cemetery using a path extending at a right angle from Defendants' western property line; rather, this argument concerns the right of Margaret Whaley to use the sixty foot right-of-way to travel from Tract Five, south along Defendants' western line, to the beginning of the cemetery path.
Margaret Whaley's deed to Tract Five contains the following language:
Together with a perpetual right-of-way easement for ingress and egress over and across that certain road leading from the land herein described to its intersection with Leeward Drive of Black Beard Cove Subdivision, said right-of-way easement being more particularly shown by broken lines on the [Estate map] above referred to.
Plaintiffs claim that the easement to the cemetery extends more than twice the distance along the western border of Tract Six, well past the "Leeward Drive" described in Margaret Whaley's deed. However, though the language of Margaret Whaley's deed conveys to her a sixty foot right-of-way to "Leeward Drive" for ingress and egress, her deed also makes direct reference to the Estate map.
"`Grantees take title to lands subject to duly recorded easements which have been granted by their predecessors in title.'" Hensley v. Ramsey, 283 N.C. 714, 730, 199 S.E.2d 1, 10 (1973) (citation omitted). "`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[.]'" Borders v. Yarbrough, 237 N.C. 540, 542, 75 S.E.2d 541, 543 (1953) (citation omitted). A deed creating an easement "`should describe with reasonable certainty the easement created and the dominant and servient tenements.'" Hensley, 283 N.C. at 730, 199 S.E.2d at 10 (citation omitted). "Furthermore, where land is sold in reference to a plat or map, but the dedication of the land has not been formally accepted by the appropriate authority, purchasers of land who buy property relying on the plat still acquire an easement in those right-of-ways." Price v. Walker, 95 N.C. App. 712, 715, 383 S.E.2d 686, 688 (1989). Moreover, "`[w]here a deed contains two descriptions, one by metes and bounds and the other by lot and block according to a certain plat or map, the controlling description is the lot according to the plan, rather than the one by metes and bounds.'" Kelly v. King, 225 N.C. 709, 716, 36 S.E.2d 220, 224 (1945) (citation omitted).
In the case before us, Margaret Whaley took title to Tract Five by virtue of a deed which contained an explicit reference to the Estate map. The Estate map clearly depicts the sixty foot right-of-way extending along the western line of Tract Six some 724.11 feet, well beyond Leeward Drive as shown on the map. In Price, our Court addressed a similar situation as follows:
In this situation, three categories of persons are affected: the purchasers within the platted area, purchasers outside the area designated, and the general public. . . . The interest created by purchasers within the platted area as to right-of-ways shown on the plat is not strictly speaking a true dedication. A dedication must be made to the public at large, not part of the public, and before a dedication can take effect, it must be accepted by the appropriate authorities. . . . Instead, the defendants' easement in this case is closer in nature to an easement appurtenant, and it is created when the purchaser whose transaction relies on the plat is conveyed the land. . . . No further action by the purchaser, vendor, or public authorities is necessary to preserve the easement rights of the purchaser.
Price, 95 N.C. App. at 715, 383 S.E.2d at 688 (citations omitted).
The sixty foot right-of-way depicted in the Estate map is "closer in nature to an easement appurtenant" running through Tracts Five and Six. Id. In the present case, as in Price, such an easement is created "when the purchaser whose transaction relies on the plat is conveyed the land." Id. Thus, Margaret Whaley obtained her easement rights in the sixty foot right-of-way as shown on the Estate map when the land was conveyed to her in 1972. Though the language of Margaret Whaley's deed describes the easement as extending only to Leeward Drive, the Estate map clearly shows the right-of-way extending a precise and measurable amount well beyond Leeward Drive. Pursuant to Kelly, the Estate map is controlling. Because none of these facts are in dispute, there is no genuine issue as to any material fact with respect to Margaret Whaley's interest in the sixty foot right-of-way. Therefore, summary judgment was proper and the trial court did not err in granting Margaret Whaley summary judgment as to the issue of her interest in the sixty foot right-of-way.
II. Robert King, Ann King, and A. William King.
Defendants also argue that the trial court erred by granting summary judgment in favor of Robert King, Ann King, and A. William King as to their right to use the sixty foot right-of-way to access the cemetery. Defendants contend that, because the sixty foot right-of-way set forth in the Estate map was "not dedicated to the public," the owners of property outside of that estate division are not entitled to make use of the right-of-way. We agree.
Unlike Margaret Whaley, Robert King, Ann King, and A. William King do fall within "the general public" category of persons described in Price. Price, 95 N.C. App. at 715, 383 S.E.2d at 688. As discussed in Price, "[a] dedication must be made to the public at large, not part of the public, and before a dedication can take effect, it must be accepted by the appropriate authorities." Id. "Purchasers of parcels of land located outside the boundaries of the area platted and recorded acquire the rights of the general public, not the rights of the purchaser within the area." Id. at 716, 383 S.E.2d at 688-89. Because Robert King, Ann King, and A. William King do not own parcels of real property within the boundaries of the area platted and recorded, they "acquire[d] the rights of the general public, not the rights of the purchaser within the area." Id. As discussed above in Price, though there was no issue of material fact as to the deeds with respect to this issue, the trial court's conclusion of law as to the ownership rights afforded by the deeds was in error. In the present case, the trial court erred by granting summary judgment in favor of Robert King, Ann King, and A. William King. However, Plaintiffs also made the following allegation in their complaint:
to the extent that any of the property interests Plaintiffs . . . contend exist are found not to exist by written declaration, there exists an implied easement over said property due to the fact that the land owned by the Plaintiff[s] . . . and the Defendants were at one time owned by the same owner, and that the common owner of the two parcels of land used the 60 [foot] easement and the 12 foot road exception to visit the cemetery and traverse down to Edens Landing, and that this use of the 60 foot easement and 12 foot road exception was intended to be permanent.
We therefore remand this issue to the trial court to make a proper determination of whether Robert King, Ann King, and A. William King have acquired an easement by implication with respect to the contested properties.
E. Cemetery Boundaries
Defendants next contend that Plaintiffs have statutory rights to visit the cemetery, but that those rights "are limited to visiting particular graves that are of interest to them. . . . [and not] the cemetery as a whole." Defendants contend that there is a genuine issue of material fact as to "what the actual boundaries of the cemetery are." In this instance, the Thompson map is explicit and controlling and, therefore, we disagree. As a preliminary matter, we note that Defendants do not challenge the existence of the cemetery, nor that Plaintiffs are all members of the King family.
Our Supreme Court has observed the following rules with respect to family cemeteries:
"Persons having a right to protect private cemeteries or graves therein may erect a fence around the cemetery[,]". . . . [and] any member of a family whose dead were buried in a family cemetery might enjoin the removal of a fence or an interference with any portion of the cemetery. However, any one or more of the heirs of persons buried in a private cemetery may prevent an interference with the rights held in common.
Rodman v. Mish, 269 N.C. 613, 616, 153 S.E.2d 136, 138 (1967).
In the present case, the Thompson map sets forth the exact location of the cemetery with clearly identifiable metes and bounds, including a path leading directly from the cemetery to the western edge of Defendants' property. Because of the incorporation of the Thompson map into Defendants' deed, Defendants took title to Tract Six, with the cemetery boundaries as established in the Thompson map. Thus, as in Rodman, Plaintiffs, as "member[s] of a family whose dead were buried in [the] family cemetery[,]" are entitled to "enjoin the removal of [the] fence or [the] interference with any portion of the cemetery." Id. The averments set forth in Mr. Cribb's affidavit on this issue present no question of fact which would affect this issue of law, and there being no other material question of fact as to the cemetery with respect to the Thompson map, summary judgment was proper. Therefore, the trial court did not err in granting summary judgment to Plaintiffs as to the boundaries of the cemetery. We affirm this portion of the trial court's order.
F. In Conclusion
There is no question of material fact as to Margaret Whaley's interest in the sixty foot easement, and we have concluded that she was entitled to judgment as a matter of law. We therefore affirm the trial court's order granting summary judgment as to this issue. We likewise affirm the trial court's order granting summary judgment in favor of Plaintiffs as to the boundaries of the cemetery. However, as we have discussed above, Plaintiffs were not entitled to summary judgment as to the sixty foot easement with respect to Robert King, Ann King, and A. William King. We therefore reverse the order granting summary judgment in favor of Robert King, Ann King, and A. William King with respect to the sixty foot easement and remand for the trial court to make a proper determination of the alleged easement by implication. Because there remains a question of material fact as to the exact relationship between the 1932 deed and the twelve foot exception, we reverse the trial court's order granting summary judgment as to that issue and remand for further proceedings.
Affirmed in part and reversed and remanded in part.
Judges STROUD and ERVIN concur.
Report per Rule 30(e).