#### OLIVER T. WALLACE v. JOHN D. BELLAMY et al.

(Filed 26 November, 1930.)

1. Deeds and Conveyances D a — Construction of deed in this case held properly submitted to the jury.

Where the defendant is the owner of lands along the Ocean front and enters possession under his deed which gives the right of ingress and egress over lands extending westward to a “Banks Channel” to cease whenever the grantor should open and establish streets or alleys extending from “Banks Channel” to the Ocean either to the north or south of the premises conveyed: HeM, the expression “to the north or south of the premises,” with reference to the streets or alleys contemplated, is ambiguous as to their location, leaving the question of their location for the jury, and an instruction that the streets or alleys opened up must have been contiguous to defendant’s lots or reasonably near thereto so as to make it reasonably convenient to the owners to pass to the Ocean or Sound is not error to the defendant’s prejudice, and defendant’s request for a directed verdict in his favor as a matter of law was properly denied.

2. Adverse ¡ Possession A e — Party taking possession under deed and later claiming adversely may not tack prior adverse possession of another.

Where a grantee of lots enters possession under a deed giving him the right of ingress and egress over other lands of the owner to terminate upon the opening of streets or alleys, he, taking in accordance with his conveyance may not tack the possession of a prior adverse; possessor who did not take under these conditions, in claiming title by twenty years adverse possession.

3. Adverse Possession A f — Where deed grants easement over lands the grantee may not claim right adversely until termination of easement.

Where the grantee of lands enters possession of certain lots of land under a deed giving him the right of ingress and egress over other lands *760of the grantor until the happening of an event that will make such right unnecessary: *Helé,*until the happening of that event only a permissive use of the land for the purposes stated is acquired by the grantee, and where he claims the right by adverse possession his possession will not he held to be adverse until he has done some open or overt act amounting to an assertion of the right by him adversely or until the event that was to terminate his easement under the deed has happened.

Clarksoit, X, dissenting.

Appeal by defendants from *Grady, J.,*at December Term, 1929, of New HaNOveR.

No error.

Upon the allegations in his complaint the plaintiff prayed that he be adjudged the owner of certain lots in 'W'rightsville Beach and that the defendants’ claim thereto be declared a cloud upon his title. The plaintiff waived his demand for damages and only two issues were submitted to the jury:

1. Is the plaintiff the owner of the record title to the lands in controversy, being the lands lying to the west of lots 23 and 24, and included within the extended northerly and southerly lines of said two lots to the sound, as indicated on the plat offered in evidence?

2. Have the defendants been in the open, notorious, hostile and adverse possession of said lands, claiming the same as their own for twenty years next before the commencement of this action, as alleged in the answer?

By consent of the defendants the court answered the first issue in the affirmative; to the second, the jury responded “No.” It was thereupon adjudged that the plaintiff is the owner of the land in controversy and that a writ issue evicting the defendants and putting the plaintiff in possession.

It is admitted that the defendants are the owners of lots 23 and 24 as represented on the map. These lots are situated between the Atlantic Ocean on the east and the right of way of the Wilmington Seacoast Railroad Company on the west. The land in controversy lies to the west of lots 23 and 24, its northern boundary being a line represented by an extension of the north line of lot 24 from the right of way to Banks Channel, its southern boundary being a line represented to an extension of the south line of lot 23 from the right of way to the Channel, its eastern boundary the right of way, and its western boundary Banks Channel.

On 19 July, 1893, the Wilmington Seacoast Railroad Company, conveyed to Fannie S. Fishblate lots 23 and 24, together with a right of way on the disputed land, in the words following: “Also the right of way in and over the lands of the party of the first part, lying between the premises hereby conveyed and Banks Channel on the west, for the purpose of ingress and egress; but the right of way shall cease and

*761determine whenever the party of tbe first part shall open and establish streets or alleys extending from Banks Channel to the Ocean, either to the north or south of the premises hereby conveyed.” The right of way here described is on the controverted lands; it is a right of ingress and egress granted the owner of lots 23 and 24 and must not be confused with the railroad company’s right of way.

Mesne conveyances of this property, with the same provision for a right of ingress and egress, were duly executed and registered, and on 26 May, 1906, E. C. Holt and his wife executed and delivered to the defendants John D. Bellamy and Emma A. Bellamy a deed for the property above described with the same provision relating to the right of way on the land in suit.

The lots laid off on the map extend from the railroad track eastward to the highwater mark of the Ocean; the land between the railroad track and Banks Channel was not laid off in lots or subdivided; and no paid of it was embraced in the deeds conveying title to lots east of the railroad. This land was the property of the Wilmington Seaeoast Eailroad Company. Title to the land sued for was, therefore, not included in the deed conveying lots 23 and 24 to the defendants.

Without objection the plaintiff offered in evidence the merger of the Wilmington Seaeoast Eailroad Company, the Wilmington Street Eail-way Company, and the Wilmington Gas Light Company, forming the Consolidated Eailways, Light and Power Company, and the defendants admitted that the last named company is the successor to the record title of the Wilmington Seaeoast Eailroad Company.

The plaintiff introduced: (1) A deed from the Consolidated Eailways, Light and Power Company to the Tidewater Power Company, dated 23 April, 1907, defendants admitting that the latter company is the successor of the record title of such property as the former company owned on Wrightsville Beach; (2) a deed from the Tidewater Power Company to the plaintiff dated 26 July, 1927. The plaintiff says that in this way he acquired title to the controverted land. Indeed, by consenting that an affirmative answer be given to the first issue the defendants admitted that the plaintiff has the record title. But it is contended by the defendants that no street or alley extending from Banks Channel to the Ocean has ever been opened and established as contemplated by the parties to the several deeds conveying title to lots 23 and 24. To meet this contention the plaintiff introduced a deed, dated 13 June, 1927, from the Tidewater Power Company (certain mortgagees joining in its execution) to the town of Wrightsville Beach, conveying several lots upon this condition: *“Provided, however,*and this deed is given upon the express condition that the said lots or parcels of land hereby conveyed to the said party of the third part shall be *762opened up and used only for streets by tbe town of Wrightsville Beach, and, in the event that the said lots or parcels of land, or any one of them, shall hereafter cease to be used for such streets, this deed as to such lot or lots of land shall be void and such lot or lots of land shall thereupon immediately revert to the party of the first part, its successors and assigns.”

Other facts material to the decision are set out in the opinion.

*Da,vis & Poisscm for plaintiff.*

*Emmett E. Bellamy and George L. Peschcm for defendants.*

Adams, J.

It is essential that wo bear in mind the significance of the issues. Only two were formulated because they involve the whole controversy. The defendants admitted that the plaintiff has the record title and consented that to the first issue an affirmative answer should be given by the trial court. The principal question thus left undetermined was that of the defendants’ adverse possession, although there are assignments of error based upon the court’s refusal to dismiss the action, and upon the charge and the exclusion of evidence.

The real source of the controversy is the following clauses in the deed under which the defendants acquired title to lots 23 and 24: “Also the right of way in and over the lands of the party of the first part, lying between the premises hereby conveyed and Banks Channel on the west, for the purpose of ingress and egress; but the right of way shall cease and determine whenever the party of the first part shall open and establish streets or alleys extending from the Banks Channel to the Ocean, either to the north or south of the premises hereby conveyed.”

These clauses are in all the deeds under which the defendants claim title. On 13 June, 1927, the Tidewater Power Company, which derived its title through mesne conveyances from the Wilmington Seacoast Railroad Company, as the defendants derived theirs, executed and delivered to the town of Wrightsville Beach certain lots to be “opened up and used only for streets”; and on the same day the Tidewater Company conveyed to the plaintiff several parcels of land, including that which is in controversy. The plaintiff took his title subject to this provision. It is immaterial, therefore, whether the streets, if opened at all, were opened by the plaintiff or his predecessor in title.

The defendants suggest that a letter written by the male defendant from Fiesole, Italy, on 10 June, 1927, led to an attempt by the Tide-# water Power Company to open the streets in order to deprive the de^ fendants of their right of ingress and egress. In view of the dates borne by the letter and the deed this vjould seem to be improbable; but if the streets were opened and established the motive is immaterial. *Bell v. Danzer,*187 N. C., 224.

*763It is insisted by the appellants that the streets just referred to are not contiguous or so near to the defendants’ property as to be available as a right of way from the Ocean to the Sound, and that it is impossible to open such streets without obtaining a reconveyance from the owners of lots 25 and 26 on the north or of lot 22 on the south of lots 23 and 24. In effect this is a contention that the proposed streets must adjoin lots 23 and 24, or at least one of them, and that the trial court should have given such construction to the several deeds. This interpretation would result in very seriously impairing, if not practically destroying, the entire scheme upon which the sale of lots and the erection of buildings was founded; it would require the appropriation of about one-third the building lots for the use of streets. It is manifest that such a result was not in the minds of the parties. For this reason, it may be, the defendants receded somewhat from this position by saying that the language of the deeds imports that the right of way should continue until a street or alley should be opened next to, or adjoining, or so near their lots as to be reasonably convenient for the owners’ use and for the use of their guests and friends. But on this point the appellants have no ground of complaint, for the judge’s instruction to the jury was in substantial agreement with this view, as is obvious from the following paragraph: “The language of this deed, gentlemen, from Holt to Mr. and Mrs. Bellamy, says that the right of way granted in said deed shall cease and determine whenever a street or alleyway shall be opened and established to the north or south of said lot. That means, I charge you, that the street must have been opened contiguous to said lot, and if not, so reasonably near thereto as to make it convenient to the owners of the lot to pass to the Ocean and Sound.”

It is said by the appellants that the north street or alley is 260 feet from lots 23 and 24, and the one on the south is distant 210 feet, and that his Honor, instead of submitting the question to the jury, should have held as a conclusion of law that neither of them was a street or alley in contemplation of the provisions contained in the deeds.

We find no agreement or stipulation in the chain of title as to the proximity of the streets or alleys to the lots owned by the defendants. The deeds contain the contract of the parties; and by the terms thereof they must abide. In the interpretation of contracts the general rule is that a court will not resort to construction where the intent of the parties is expressed in clear and unambiguous language; but if the terms are equivocal or ambiguous the jury may in proper cases determine the meaning of the words in which the agreement is expressed. This elementary principle is of frequent application in ascertaining the intention of the parties. *Porter v. Construction Co.,*195 N. C., 328; *Patton v. Lumber Co.,*179 N. C., 103; *Faust v. Rohr,*166 N. C., 187; *Young v.*
      *764
      *Jeffreys,*20 N. C., 357. Tbe provision tbat tbe defendants’ right o-f way should cease and determine upon opening and establishing the contemplated streets or alleys was clearly expressed; but the term “north or south of the premises” is ambiguous. For the reasons above stated we concur in his Honor’s conclusion that the parties did not contemplate that the streets or alleys should necessarily adjoin the lots owned by the defendants, but that they should be near enough to enable the defendants with reasonable convenience to go to and from the Sound. As previously observed, the defendants seem to- have conceded the correctness of this position. The jury were told to pass upon the question as preliminary or incidental to their determination of the time when the ‘defendants’ alleged adverse possession began. The question being incidental, a mere question of fact, a separate issue was not necessary. *Bailey v. Hassell,*184 N. C., 450; *Power Co. v. Power Co.,*171 N. C., 248. Moreover, the defendants did not object to the issues of record or tender an issue addressed to the location of the streets. They should have done so- if they desired to take advantage of the alleged error. *Bank v. Bank,*197 N. C., 526; *Brennan Wilkes,*179 N. C., 512; *Maxwell v. McIver,*113 N. C., 288; *Porter v. R. R.,*97 N. C., 66; *Clements v. Rogers,*95 N. C., 248.

The issues submitted and the verdict returned indicate that the appellants rested their case principally upon the defense of adverse posses-, sion. The defense presupposes the opening of the streets, because up to the time they were opened and established the defendants’ right to use the land had been permissive; that is, the easement had remained permissive until the defendants had committed some act sufficient in character to point to an adverse claim. The permissive exercise of an easement does not silently bar the owner’s title. The defendants cannot assert title under and at the same time against the plaintiff and those from whom his title was derived. *Whitten v. Peace,*188 N. C., 298; *Perry v. White,*185 N. C., 79; *Vanderbilt v. Chapman,*175 N. C., 11; *Snowden v. Bell,*159 N. C., 500.

The plaintiff offered evidence tending to show that the streets or alleys referred to in the deeds had not been opened and established until 1927; the defendants introduced deeds making provision for streets more than twenty years earlier. If the former position is correct the defendants’ adverse possession could not have matured their title; and in reference to the latter the court charged the jury to answer the second issue in the affirmative if, after the streets had been opened and established, the defendants had continued in possession, exercising dominion and control over the. land openly, notoriously, and adversely, claiming it as their own under known and visible boundaries for a period of twenty years. The jury found the facts to be otherwise, and returned a negative answer *765to tbe second issue. Tbe defendants’ prayer for instruction witb respect to adverse possession was properly declined because it disregards altogether tbe time wben tbeir easement in tbe property was to come to an end.

There was no error in tbe exclusion of evidence offered to show adverse possession by Harris and Holt, two of tbe defendants’ predecessors in title. It is elementary that tbe owner’s title to land may be defeated by tbe adverse possession of an occupant and those under whom be claims for a period of twenty years, and that tbe privity between successive occupants which will permit tbe tacking of tbeir possessions is privity of physical possession not derived from or in subordination to tbe true owner. *Vanderbilt v. Chapman,*172 N. C., 809. But for obvious reasons tbe defendants cannot avail themselves of tbe proposed testimony. In tbeir answer they admit that they went into possession and exercised tbe easement under tbe Holt deed immediately after its execution on 26 May, 1906, and they offered evidence to tbe effect that they bad not purchased any lot on tbe west side of tbe Wilmington Seaeoast Eailway, but only “an easement of ingress and egress.” Tbe single claim they bad was tbe easement; they did not assert any other title to tbe disputed land at tbe time of tbeir entry. By tbe terms of tbe deed, in a certain event tbe easement was to cease. Claiming under tbe deed granting tbe easement, tbe defendants confirmed it; by claiming tbe benefits they assumed tbe imposed burdens; they may not assail tbe deed upon which at tbe same time they base tbeir right of entry. *Hill v. Hill,*176 N. C., 194; *Fort v. Allen,*110 N. C., 183; *Fisher v. Mining Co.,*94 N. C., 397; *Curlee v. Smith,*91 N. C., 172; *Leach v. Jones,*86 N. C., 404; *Grandy v. Bailey,*35 N. C., 221. This is not a denial of tbeir right to establish subsequent adverse possession, but it is a denial of tbeir right to tack tbeir subsequent possession to tbe alleged adverse possession of those who occupied tbe property previously to tbe entry of tbe defendants under tbe limitations of tbeir deed. Tbe defendants offered evidence tending to show that tbeir possession was permissive until 1907. Tbeir claim of subsequent adverse possession was presented to tbe jury by instructions in which we find no error. It is manifest from what we have said that tbe motion to dismiss the action was properly denied.

No error.

OlabesoN, J.,

dissenting: I am unable to agree witb tbe majority opinion. I think that plaintiff’s cause of action should have been dismissed. It is elementary that to enforce a contract tbe agreement of tbe parties must be certain and explicit, so that tbeir full intention may be ascertained to a reasonable degree of certainty. In construing a *766contract to ascertain tbe intention, tbe setting and purpose must be considered.

Lots 23 and 24 were on ‘Wrightsville Beacb, and purchased for a summer borne. These lots were on tbe east of tbe electric railroad running through 'Wrightsville Beacb and faced and extended to the Ocean. In tbe rear of these lots was Banks Channel, or tbe Sound, used for boating by those who owned tbe cottage and those who came to visit by boat. Tbe Sound was a highway by boat and necessary that these cottages have an outlet to the Sound, or highway.

Plaintiff’s right of recovery was subject to the following agreement: “Also the right of way in and over the lands of the party of the first part, lying between the premises hereby conveyed and Banks Channel on the west, for the purpose of ingress and egress; but the right of way shall cease and determine whenever the party of the first part shall open and establish streets or alleys extending from Banks Channel to the Ocean, either to the north or south of the premises hereby conveyed.”

Plaintiff claims title to the land described above through which defendant had ingress and egress to Banks Channel, or the Sound, from lots 23 and 24. It was to my mind clearly agreed that when defendants purchased the property they had a right of way to the channel or Sound, where they could go and come by boat — they or their friends- — • but it is expressly provided that “The right of way shall cease and determine whenever the party of the first part shall open and establish streets or alleys -extending from Banks Channel to the Ocean, either to the north or south of the premises hereby conveyed.”

Plaintiff contends he owns this property, and if he is to cut defendants off from the Sound, he cannot do this until he, or those through whom he claims, gives defendants ingress and egress by opening either an alley or street to the “north or south of the premises hereby conveyed,” clearly indicating that there must be a street or alley either north or south of the land closed, which must be contiguous to the land closed, for defendants’ benefit for ingress or egress to lots 23 and 24. Plaintiff, nor those through whom he claims, not having provided this street or alley contiguous to the land to be closed, which was used by defendants, for ingress or egress, cannot recover. The contract has not been performed by him or those through whom he claims. Under the contract, plaintiff, having failed to comply with the contract, had no cause of action and the court below, as a matter of law, should have so instructed the jury. The contract was not ambiguous, and this phase should not have been left to the jury as to any street elsewhere or the 'meaning of the contract.

The construction of the contract was a matter of law, therefore plaintiff’s action should have been dismissed.