LDDC, INC. v. Pressley

322 S.E.2d 416 (1984)

LDDC, INC., a Florida Corporation v. Alaska Holland PRESSLEY and Hubert W. Pressley.

No. 8430SC61.

Court of Appeals of North Carolina.

November 20, 1984.

*417 Edward Thornhill, III, P.A., Canton, for petitioner-appellant.

Brown, Ward, Haynes & Griffin, P.A., Waynesville, and Long, Parker, Payne & Matney, P.A. by Steve Warren, Asheville, for respondent-appellee Alaska H. Pressley.

VAUGHN, Chief Judge.

We hold that the trial court was correct in concluding that Hubert Pressley, as tenant in common with Alaska Pressley, could not convey an easement for a right-of-way to petitioner which would bind Alaska Pressley, where she did not join in the conveyance. We therefore affirm.

A tenancy in common is characterized by a single essential unity, that of possession, or the right to possession of the common property. Lockleair v. Martin, 245 N.C. 378, 381, 96 S.E.2d 24, 26 (1957). Each tenant owns a separate undivided interest in the land in his or her own right, and each has an equal right to possession. J. Webster, Real Estate Law in North Carolina § 110 (Rev. ed. 1981).

Ordinarily, one tenant in common may not bind a co-tenant by any act relating to the common property in the absence of ratification or estoppel. Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694 (1944). This concept has been applied in analogous circumstances to those before us. In Investment Co. v. Telegraph Co., 156 N.C. 259, 72 S.E. 361 (1911), a corporate defendant granted a third party the right to post two telephone wires to poles owned by defendant with another corporation as tenants in common. The Supreme Court held that "whether the right which defendant undertook to grant plaintiff be considered a *418 lease ..., an easement, or revocable license ...," id. at 265, 72 S.E. at 363, defendant had granted that which it was without power to grant:

"The general rule seems to be well settled that one tenant in common cannot, as against his cotenant, convey any part of the common property by metes and bounds, or even an undivided portion of such part .... The reason is obvious. His title is to an undivided share of the whole, and he is not authorized to carve out his own part, nor to convey in such a manner as to compel his cotenants to take their shares in several distinct parcels.... Even though his deed may bind him by way of estoppel, as against the cotenants, such deed is inoperative and void .... Though tenants in common are ... all seized of each and every part of the estate, still they are not permitted to do acts which are prejudicial to their cotenants .... As one tenant in common cannot convey the entire estate, or the whole of any portion thereof, ... he cannot subject the common property to particular servitudes, by which the rights of his cotenants will be affected...."

Id. at 264, 72 S.E. at 363 (citations omitted). See also Browning v. Highway Commission, 263 N.C. 130, 134, 139 S.E.2d 227, 229 (1964) (the purchase of an easement from one co-tenant does not carry with it an easement in the interest of the other co-tenant). North Carolina law appears to conform to the majority rule. 86 C.J.S. Tenancy in Common § 111 (1954).

The quoted passage governs the matter before us and confirms the propriety of the trial court's order. This action was properly brought as one for a declaratory judgment, see G.S. 1-253; Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654 (1964), which actions are appropriate to interpret written instruments. Bellefonte Underwriters Insur. Co. v. Alfa Aviation, 61 N.C.App. 544, 300 S.E.2d 877 (1983), affd, 310 N.C. 471, 312 S.E.2d 426 (1984). See also Shingleton v. State, 260 N.C. 451, 133 S.E.2d 183 (1963) (declaratory judgment to determine extent of easement granted by State proper). Having ruled that petitioner did not acquire an easement in the undivided one-half interest of respondent appellee, there was nothing left to decide, and the trial court properly dismissed the action. We note there is no bar to granting a summary judgment in a declaratory judgment action, Threatte v. Threatte, 59 N.C.App. 292, 294, 296 S.E.2d 521, 523 (1982), aff'd, 308 N.C. 384, 302 S.E.2d 226 (1983), such motions being governed by the same rules applicable to other actions. Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 42 (1972).

Affirmed.

BRASWELL and EAGLES, JJ., concur.