Appeal by plaintiff from Fountain, Judge. Judgment entered 16 October 1978 in Superior Court, Buncombe County. Heard in the Court of Appeals 23, 1979.
Webb, Judge. Judges Hedrick and Martin (Robert M.) concur.
We affirm the judgment of the superior court. Reading the deed as a whole and giving effect to all its parts as we are required to do, Ellis v. Barnes, 231 N.C. 543, 57 S.E.2d 772 (1950) and Strickland v. Jackson, 259 N.C. 81, 130 S.E.2d 22 (1963), we hold that the deed recorded 10 November 1948, on which the plaintiff's title is based, conveyed an easement. The granting clause described it as a "right of way." At the end of the description were the words "to be allowed as right of way to the highway." The words "right of way" usually connote an easement. See Pearson v. Chambers, 18 N.C. App. 403, 197 S.E.2d 42 (1973). Giving effect to these words, we hold that the deed did not convey a fee simple interest to Scott Boone. For cases from other jurisdictions with a similar result, see Parks v. Gates, 186 Cal. 151, 199 P. 40 (1921); Gulf Coast Water Co. v. Hamman Exploration Co., Tex. Civ. App., 160 S.W. 2d 92 (1942); Tallman v. Eastern Illinois and Peoria R. Co., 379 Ill. 441, 41 N.E. 2d 537 (1942).
The appellant argues that G.S. 39-1 and McCotter v. Barnes, 247 N.C. 480, 101 S.E.2d 330 (1958) require that we hold the deed conveyed a fee simple title to the property. G.S. 39-1 says:
When real estate is conveyed to any person, the same shall be held and construed to be a conveyance in fee, whether the word "heir" is used or not, unless such conveyance
in plain and express words shows, or it is plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity
As to the application of this statute, we hold that for reasons stated in this opinion, it was plainly intended by the conveyance to convey an estate of less dignity than fee simple. McCotter v. Barnes, supra, dealt with a deed to a railroad company. The land was described as a right-of-way, and the Court held the deed conveyed a fee simple interest. The Court said the use of the term "right of way" was descriptive of the use to which the land was to be put and did not limit the quantum of land conveyed. Pearson v. Chambers, supra, interpreted McCotter. In that case, Judge Parker, writing for this Court, explained that land used by railroads is often denominated a right-of-way whatever title the railroad may own in the land. In Pearson, in which no railroad was involved, it was held that the use of the term right-of-way was descriptive of the interest conveyed. That reasoning is persuasive in the case sub judice.
Appellees have attempted to argue in their brief that the description in the deed is too vague to convey any interest to plaintiff. Appellees did not take any exception to the judgment of the superior court and have assigned no error. We do not consider their argument.