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Ar,A,
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Coastal Management
verly Eaves Perdue James H. Gregson Dee Freei
ivernor Director Secre
November 5, 2009
iy O'Shea
;ident, Seapath, Inc.
Causeway Drive
fhtsville Beach, NC 28480
Objection to the Issuance of CAMA General Permit No. 54095-D for a Shoreline Stabilization Development Proj
at Seapath Yacht Club, New Hanover County
it Mrs. O'Shea:
> letter is in response to your objection as an adjacent riparian property owner to a permit request from James Pyrtle
nt for the Seapath Yacht Club for improvements to the existing bulkhead at 330 Causeway Drive, Wrightsville Bead
v Hanover County. Holley Snider, of the Division of Coastal Management staff, was recently on site to evaluate the
mit applicant's request.
permit applicant has requested a permit to make improvements to the existing shoreline stabilization bulkhead by
ailing a new tieback system and to replace the existing concrete walkway adjacent to the bulkhead. Under the Cm!
a Management Act(CAMA), the Coastal Resources Commission (CRC) has established Rules for General Permits
type of development that are found in 15A NCAC 07H .1100.
J have notified the Division of Coastal Management of your objections to this proposed development by a written let
eived by the Division of Coastal Management on September 30, 2009.Your objections to this proposed developmer
3ted to the encroachment of land disturbing activities and damages on the Seapath Tower property. The Division hz
iewed your objections, along with all aspects of this development proposal for consistency with the aforementioned
les, which describe the CRC's standards and guidelines for this type of development. Our review of the proposed
relopment has found it to be consistent with these Rules.
e proposal and drawings submitted by James Pyrtle on behalf of Seapath Yacht Club, Sheet S1, General Notes#6
shall be the responsibility of Seapath Yacht Club to secure necessary approvals, easements, etc. to allow work sho\
;se design drawings to be performed on adjacent property. This work includes but is not limited to replacement of ci
d fence, incidental access to allow for fire and waterline relocation, etc." Your objection states that a"legal agreeme

REC'D S E P 2 3 2009
X'3 a J.Phillip Norr
NORRIS , KUSKE &TUNSTALL John A.Kuske,
John S.Tunst
CONSULTING ENGINEERS , INC . J.A. Kuske, P.E.of Ci
September 22, 2009
Ms. Holley Snider
NC Division of Coastal Management
127 Cardinal Drive Extension
Wilmington, NC 28405-3845
Re: Bulkhead, Walkway and Utilities Renovations
Seapath Yacht Club
Wrightsville Beach, NC
NKT Project No. 07174
Dear Ms. Snider:
Pursuant to your email dated 9/09/09, we have provided notification regarding the
subject project to the adjacent riparian property owners. We included a complete set of
design drawings for the project with this notice.
Based on previous correspondence with the Division of Coastal Management, we
understand that a "General" CAMA permit will be required for this project. Please
initiate the general permit process as soon as possible. The following information is
provided for your review and use:
• Copies of notification letters to the adjacent riparian property owners: Seapath
Towers and Mr. Donald D. Gilstrap. Signed return receipts for delivery of
notification packages.
• Full size copy of design drawings for the project.
• $200 check for permit fee made payable to NC DENR.
Please contact us if you have any questions or if you need additional information.
Sincerely,
NORRIS, KUSKE & TUNSTALL
(YIAICI II TIMM GAIMIMPPPC !Air

J.Phillip N<
NORRIS , KUSKE TUNSTALL John A.Kusk
John S.Tur
CONSULTING ENGINEERS , INC . J.A.Kuske,PE.of
September 14, 2009
Mr. David Foster, Manager
Seapath Towers
322 Causeway Drive
Wrightsville Beach, NC 28480
Re: Bulkhead, Walkway and Utilities Renovations
Seapath Yacht Club Wrightsville Beach, NC
NKT Project No. 07174
Dear Mr. Foster
This letter is written to provide notice that the Seapath Yacht Club intends to apply for a CAN
Permit for a project titled Bulkhead, Walkway and Utilities Renovations. The basic scope of tl
project is to replace the existing concrete deadman tieback system with a new anchor pile tieba
system; and to replace the concrete walkway adjacent to the existing bulkhead. Inciden
relocation and / or replacement of water valves, cable TV, electrical handholes, etc. will
required.
The CAMA Handbook for Development in Coastal North Carolina, prepared by the Division
Coastal Management (DCM), states that adjacent riparian landowners shall be provided tl
opportunity to comment to DCM and note objections to a proposed project. Accordingly, as
adjacent riparian landowner to this proposed project, we are providing you with a complete set
design drawings for this project for your review and comment.
Should you have comments, they will need to be directed to:
Ms. Holley Snider
NC Division of Coastal Management
127 Cardinal Drive Extension
Wilmington, NC 28405-3845
If you have questions regarding the content of the design drawings, you can call this office and to
to the undersigned. However, any comments that you intend to be a part of the official project fi
will need to be provided directly to the DCM. If you have no objections to this project, plea:
acknowledge by signing below and returning this letter to our office.
I have no objections to the project as presently proposed.
Signature Date R E` hh
Sincerely. E & E V

J.Phillip NI
NORRIS, KUSKE &TUNSTALL John A.KusN
John S.Tur
CONSULTING ENGINEERS , INC . J.A.Kuske,P.E.of
September 14, 2009
Mr. Donald D Gilstrap
P.O. Box 5468
High Point, NC 27262
Re: Bulkhead, Walkway and Utilities Renovations
Seapath Yacht Club Wrightsville Beach, NC
NKT Project No. 07174
Dear Mr. Gilstrap:
This letter is written to provide notice that the Seapath Yacht Club intends to apply for a CAP
Permit for a project titled Bulkhead, Walkway and Utilities Renovations. The basic scope of t
project is to replace the existing concrete deadman tieback system with a new anchor pile tiebe
system; and to replace the concrete walkway adjacent to the existing bulkhead. Inciden
relocation and / or replacement of water valves, cable TV, electrical handholes, etc. will
required.
The CAMA Handbook for Development in Coastal North Carolina, prepared by the Division
Coastal Management (DCM), states that adjacent riparian landowners shall be provided t
opportunity to comment to DCM and note objections to a proposed project. Accordingly, as
adjacent riparian landowner to this proposed project, we are providing you with a complete set
design drawings for this project for your review and comment.
Should you have comments, they will need to be directed to:
Ms. Holley Snider
NC Division of Coastal Management
127 Cardinal Drive Extension
Wilmington, NC 28405-3845
If you have questions regarding the content of the design drawings, you can call this office and t
to the undersigned. However, any comments that you intend to be a part of the official project f
will need to be provided directly to the DCM. If you have no objections to this project, plea
acknowledge by signing below and returning this letter to our office.
I have no objections to the project as presently proposed.
Signature Date
Sincerely,
RECEIVED

•] - •171% = •Aa® COMPLETE THIS SECTION ON DELIVER
■ Complete items 1, 2, and 3.Also complete A. Sign. r: 1 1
item 4 if Restricted Delivery is desired.
• Print your name and address on the reverse X AtV/ 1 /if
so that we can return the card to you. B. Received by(Printed Name) C. ,
■ Attach this card to the back of the mailpiece,
or on the front if space permits. .�I
1. Article Addressed to: D.D. delive address„ erent • item 1.
If YES,enter delivery address below:
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P-55L1 t CI Registered �]/Retum Receipt far
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4. Restricted Delivery?(Extra Fee)
2. Article Number
(transfer from service label) 7001 2 510 0006 2 710 9791
PS Form 3811, February 2004 Domestic Return Receipt to;
SENDER:,COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY
• Complete items 1,2,and 3.Also complete A. 'g ature
item 4 if Restricted Delivery is desired. Q
• Print your name and address on the reverse �P'/ �
so that we can return the card to you. %eived by(Printed Name) C. Ds
• Attach this card to the back of the mailpiece,
or on the front if space permits.
D. Is delivery address different from
1. Article Addressed to: If YES,enter delivery address -� :
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4. Restricted Delivery?(Extra Fee)
2. Article Number
(Transfer from service label) 7001 2 510 0006 2 710 9784
PS Form 3811, February 2004 Domestic Return Receipt tc

* .. , f l r
path, Inc. -=�,_ N,:
wners Association 322 Causeway Drive,Wrightsville Beach, N.C. 28480 , { : 1•:
e-mail: seapathinc©bellsouth.net Tel:[phone] Fax:[phone] - t•-• __ __
September 28, 2009
Ms. Holley Snider
NC Division of Coastal Management
127 Cardinal Drive Extension
Wilmington, NC 28405-3845
Re: Bulkhead, Walkway and Utilities Renovations
Seapath Yacht Club Wrightsville Beach, NC
NKT Project No.07174
Dear Ms. Holley Snider,
As you and our Building Manager, David Foster discussed during your September 23rd telephone
conversations; please accept this letter as the Seapath, Inc. letter of objection, in response to the
Seapath Yacht Club's intention to apply for a CAMA Permit for their project titled Bulkhead,Walkway
and Utilities Renovations.
In the package to Seapath, Inc. (Seapath Tower) dated September 14, 2009,from Mr.James T.
Pyrtle, P.E. of Norris, Kuske&Tunstall Consulting Engineers, Inc., Seapath Yacht Club's consulting
engineer, provided drawings of the intended project. On the plans, it shows the property line between
Seapath Yacht Club and Seapath Tower drawn on the opposite side of the actual line, which is defined
by approximately 200 feet of metal fence and concrete curb that Seapath, Inc. owns.
On sheet(S1) of the engineering drawing and in the general notes box, item#6, it states the
project includes, but is not limited to replacement of the Seapath, Inc. curb and fence. We take
objection to the removal of the Seapath, Inc.fence and curb, as there is no legal agreement signed
between the Seapath Yacht Club and Seapath, Inc., authorizing any encroachment on the Seapath, Inc.
property for this new project.
In addition to the property line question,there are numerous other concerns that have been left
unanswered by the Seapath Yacht Club:
1. A designated work zone established to prevent encroachment onto Seapath Tower property.

3. There is other reasonable access equally available to the Seapath Yacht Club project area that
does not require their construction equipment to pass and re-pass over the Seapath Tower's
property in a manner which inconveniences,disrupts and endangers the Seapath Tower
residents and property.
4. According to the Seapath Yacht Club's drawings,64 10" pipe piles will be installed,of which 34
will be installed by the Seapath Tower property line. Due to the close proximity to Seapath
Tower, an eleven (11)story high-rise building with 97 residential units, and the nature of steel
pile work, a vibration monitoring system must be installed and monitored for the duration of
the project,to prevent building damage and ensure the safety of the residents. This cost must
be assumed by the Seapath Yacht Club or their contractor.
5. Provide a complete structural survey, (other than photographs) of existing conditions of the
tower and its Motts Channel Bulkhead prior to any demolition, during and at the completion
of the project.
6. Seapath Yacht Club to reimburse Seapath Tower for any legal or engineering fees associated
with this project.
7. Indemnify and hold harmless Seapath Tower from any claim or action caused by or based
upon contractor's performance of the work.
8. Seapath Yacht Club is to obtain and provide proof of insurance capable of making any repairs
to Seapath Tower Property in case of the unlikely event the Tower or bulkhead were damaged
or destroyed from the result of the Seapath Yacht Club project.
Seapath, Inc. understands the importance of this project and in the spirit of good neighbors would
like to see it completed. However,the need to remove or encroach on Seapath Tower property does
not appear to be necessary or warranted. In addition, if the Seapath Yacht Club needs to remove the
Seapath, Inc. fence and curb, as stated in the project blueprint,and/or intends to utilize any of the
Seapath, Inc. properties, a new legal agreement or easement must be approved and signed by both
parties.
Thank you for taking our objection and concerns. Please feel free to contact David Foster at 256-
2080,Seapath, Inc., 322 Causeway Drive,Wrightsville Beach, NC 28480, or [e-mail] if
any question should arise.
Sincerely,
,
ec".6c L,
Kathy O'Shea
President, S path, Inc.

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A J.Phillip Nor
NORRIS , KUSKE &TUNSTALL )ohnA.Kuske.
John S.Tunsi
CONSULTING ENGINEERS , INC . J.A.Kuske,P.E.of C
September 14, 2009
Ar. David Foster, Manager
Seapath Towers
322 Causeway Drive
Nrightsville Beach, NC 28480
Re: Bulkhead, Walkway and Utilities Renovations
Seapath Yacht Club Wrightsville Beach, NC
NKT Project No. 07174
)ear Mr. Foster
-his letter is written to provide notice that the Seapath Yacht Club intends to apply for a CAMJ
'ermit for a project titled Bulkhead, Walkway and Utilities Renovations. The basic scope of thi
project is to replace the existing concrete deadman tieback system with a new anchor pile tiebac
ystem; and to replace the concrete walkway adjacent to the existing bulkhead. Incidentz'
elocation and / or replacement of water valves, cable TV, electrical handholes, etc. will b
equired.
-he CAMA Handbook for Development in Coastal North Carolina, prepared by the Division c
;oastal Management (DCM), states that adjacent riparian landowners shall be provided PT
Ipportunity to comment to DCM and note objections to a proposed project. Accordingly, as a
Idjacent riparian landowner to this proposed project, we are providing you with a complete set c
lesign drawings for this project for your review and comment.
should you have comments, they will need to be directed to:
Ms. Holley Snider
NC Division of Coastal Management
127 Cardinal Drive Extension
Wilmington, NC 28405-3845
you have questions regarding the content of the design drawings, you can call this office and tall
the undersigned. However, any comments that you intend to be a part of the official project filE
(ill need to be provided directly to the DCM. If you have no objections to this project, pleas(
cknowledge by signing below and returning this letter to our office.
I have no objections to the project as presently proposed.
Signature Date

- 28184
FIRST CITIZENS BANK 353
DRRIS, KUSKE &TUNSTALL &TRUST COMPANY
WILMINGTON,NC 28401
3NSU LTI NG ENGINEERS , INC. 66-30-531
902 MARKET STREET
WILMINGTON, NC 28401-4733 0
DATE AMOUNT
C,
09/22/2009 $200.00
IF TWO HUNDRED DOLLARS 00/100 ONLY
EPT OF ENV & NAT RESOURCES 8
AUTHOR ED SIGNATURE
nN- CO
00 28 L8411' 1:053 L003001:00353 L9559 3, 711'

STATE OF NORTH CAROLINA `_ 4 r ; ; IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF NEW HANOyEk j; L 2 09-CvS-5823
SEAPATH YACHT CLUB, INC., )
Plaintiff, )
)
vs. ) AMENDED DECLARATORY
JUDGMENT AND JUDGMENT
) AWARDING DAMAGES
)
SEAPATH, INC., )
A TRUE COPY
CLERK OF SUPERIOR COURT
Defendant. ) NEW HANOVER COUNTY
BY• rr` tole rser 7
) Deputy Clerk of S,Jpe^cr Court
THIS CAUSE coming on for hearing before the undersigned Superior Court Judge,
presiding over the January 31, 2011, term of New Hanover County Civil Superior Court on the
Plaintiffs complaint for a Declaratory Judgment, Injunction, Specific Performance, and
Damages, based on the Plaintiffs claims of an easement across the property of the Defendant for
purposes of maintaining a tieback system supporting a bulkhead on Plaintiff's property, and the
Defendant's denial thereof; and the Plaintiff being represented by its attorney, Gary K. Shipman;
the Defendant being represented by its attorney, Jeffrey H. Blackwell;
AND THE COURT, prior to the trial of this matter, having entered Partial Summary
Judgment in favor of the Plaintiff and against the Defendant, finding that the Plaintiff(herein the
"Yacht Club") is the owner of an easement across the property of the Defendant (herein
"Seapath") for purposes of maintaining the bulkhead and its tieback system, reserving the

1970's, and was secured with a tieback system of steel rods anchored by a series of deadman
weights buried on the Yacht Club property as well as on the Seapath property approximately ten
(10)feet from the current property line.
8. Seapath was created by American Classic Industries by virtue of a Declaration of
Condominium dated May 6, 1974, and recorded in Book 1003 at Page 374 of the New Hanover
County Registry. The Declaration provides that the Seapath property, including the "common
area and facilities" included the property shown on "Exhibit A" attached to the Declaration,
which Exhibit clearly shows the marina, and the line upon which the Yacht Club Bulkhead is
built.
9. On or about January 10, 1975, American Classic conveyed to Seapath Marina,
Inc. a portion of the property that is now the Yacht Club, by Warranty Deed recorded in Book
1021 at Page 532 of the New Hanover County Registry, including the strip of land
approximately 14 feet wide between the Seapath property line and the Yacht Club Bulkhead.
10. On or about November 2, 1977, Seapath and George Rountree, III, an attorney in
Wilmington representing and serving as Trustee for the developer of the Yacht Club, entered into
a "Boundary Line Agreement" (hereinafter the "1977 Agreement"), and recorded the same in
Book 1117 at Page 603 of the New Hanover County Registry. The 1977 Agreement created a
boundary line between the property of Seapath and the Yacht Club and also granted the parties
"an easement and right of way for utilities, including, but not limited to, water, sewer, electrical,
telephone and gasoline lines as the same are now located on, under or above the ground on either
side of the above described line, including the right of the [Yacht Club]...to install and maintain

Yacht Club and Seapath, as a failure of the Yacht Club Bulkhead would result in an incursion of
water onto the property of Seapath.
17. The Board of Seapath therefore permitted the Yacht Club to access its property
for purposes of constructing and maintaining the Yacht Club Bulkhead, and Mr. Rountree
drafted an agreement for review and approval of Seapath.
18. On January 5, 1987, the Yacht Club and Seapath entered into an "Agreement for
Bulkhead and Utilities Replacement and Maintenance Dredging", (hereinafter the "1987
Agreement") and recorded the same in Book 1358 at Page 793 of the New Hanover County
Registry.
19. The 1987 Agreement provides that "....the parties have agreed to confirm
YACHT CLUB's rights to the bulkhead, deadman and tie back system and the specifications of
the bases upon which the bulkhead replacement and other work will be done..."
20. In Paragraph 1 of the 1987 Agreement, Seapath expressly conveyed an
easement to the Yacht Club as follows:
TOWER hereby gives, grants, bargains, sells, and conveys to YACHT CLUB
an easement for the purpose of maintaining YACHT CLUB's bulkhead tie
back system, including deadhead in its present location on TOWER's
property, and YACHT CLUB shall have the duty to maintain that bulkhead tie
back system, including deadhead, in good functional condition, at YACHT
CLUB's sole expense.
21. The circumstances surrounding the execution of the 1987 Agreement, taken
together with the express language of the 1987 Agreement, make it clear that the purpose of the
easement conveyed by Seapath to the Yacht Club was to maintain the Yacht Club's bulkhead

Paragraph 1 of the 1987 Agreement. However, the Court believes that the provisions of
Paragraph 6 speak only to the "contract work" which both the Yacht Club and Seapath
contemplated would be done immediately after the execution of the 1987 Agreement, and that
even if the provisions of Paragraph 6 applied to the current controversy, no showing has been
made by Seapath that the work that the Yacht Club proposed to do upon the property of Seapath
pursuant to the express grant of the easement to the Yacht Club was more than "reasonably
required to accommodate"work on the Yacht Club Bulkhead and its required tieback system.
28. After execution of the 1987 Agreement, the Yacht Club proceeded with the
replacement of the wooden bulkhead and the placement of concrete sheet piles, demolition of the
concrete walkway, and replacement of certain steel rods serving as a tieback for the new
bulkhead to the deadman weights buried on the property of Yacht Club and Seapath.
29. A tieback system is a required component for the Yacht Club Bulkhead to
perform its intended function and protect both the property of Seapath and the Yacht Club.
30. The 1987 Agreement clearly contemplates that, after completion of the
replacement of the Yacht Club Bulkhead in 1987, the Yacht Club would thereafter be required to
maintain the Yacht Club Bulkhead and its tieback system and would have an easement across the
property of Seapath for that purpose. The Court finds it illogical that the parties would have
agreed to the imposition of the maintenance duty upon the plaintiffs without provision for access
to a major component of the bulkhead system.
31. In 2007, the Yacht Club excavated a section of the tieback system as part of an
inspection of conditions beneath the walkway, which had begun to show signs of disrepair due to

was such that it was in need of repair.
39. Andrew requested that the length of the helical anchors be shortened, so as to
avoid any conflict with the foundation of the Seapath Tower building, and this necessitated that
Pyrtle perform a series of tests on the property of the Yacht Club and Seapath to determine
whether the helical anchors would provide sufficient strength to anchor the tieback system for
the bulkhead.
40. Notwithstanding the provisions of the 1987 Agreement, Seapath refused to permit
Pyrtle to access the property of Seapath for purposes of testing the helical anchors, contending
that to grant that access required a vote of the membership of Seapath.
41. Andrew is of the opinion that accessing the property of Seapath in order to test the
helical anchors was reasonable and necessary.
42. Therefore, Pyrtle undertook to redesign the method of repairs for the bulkhead
and its tieback system.
43. Both Pyrtle and Andrew were of the opinion that reusing the existing tieback
system, including deadmen, was not practical, due to the condition of the tiebacks and
uncertainty as to precisely where each of the deadmen were buried on the property of Seapath,
which would have necessitated substantial excavation work on the property of Seapath.
44. Between August 2008 and January 2010, after the filing of this action, Andrew
had no further involvement with the Yacht Club Bulkhead or its needed repairs. Seapath did not
consult with Andrew about information that Seapath began to receive from the Yacht Club about
Pyrtle's new design, beginning in the Spring and Summer of 2009, choosing instead to rely upon

both the Yacht Club and Seapath.
50. The Yacht Club and Pyrtle selected T.A. Loving to perform the needed repairs to
the Yacht Club Bulkhead, pursuant to its bid and the unit prices contained therein, and entered
into a contract for the work, including tieback replacement and utilities work, for the sum of
$654618.
51. T.A. Loving's bid/contract, and the unit prices contained therein, was premised
upon completion of all of the needed work on the Yacht Club Bulkhead. As with most
construction contracts, the more work that is performed, the lower the unit prices for labor and
materials,and the less work that is performed,the higher the units prices for labor and materials.
52. On or about July 25, 2009, representatives of the Yacht Club made a formal
presentation to the Seapath Board of Directors, during which Seapath voiced certain concerns,
which the Yacht Club requested that Seapath reduce to writing.
53. On or about August 11, 2009, Kathy O'Shea, President of Seapath, submitted a
letter to the Yacht Club, requesting: (a) that the Yacht Club establish a "designated work zone
that will include anticipated encroachment of Seapath Tower Property"; (b) a complete copy of
the"blueprints" for the Yacht Club Bulkhead repair project; (c)that the Yacht Club pay the costs
to install vibration monitors on the property of Seapath; (d) a copy of"the contractor's insurance
liability limits, construction permits, and CAMA approval which puts all burden of construction
with...Yacht Club"; (e) indemnification of Seapath against any issues associated with the work;
and(f)the Yacht Club to pay for and repair any damages to the property of Seapath."
54. In advance of the Yacht Club commencing work on the needed repairs to the

tieback system, it was necessary for the Yacht Club to obtain a CAMA permit, a requirement
well known to Seapath.
60. In order to obtain the CAMA permit, the Yacht Club was required to notify
Seapath, as an "adjacent owner," and on or about September 14, 2009, the Yacht Club, through
Pyrtle, notified Seapath in writing of its application for the needed CAMA permit to undertake
completion of the needed repairs to the Yacht Club Bulkhead and tieback system, a project
mutually beneficial to both the Yacht Club and Seapath, and providing Seapath with the
opportunity to affirmatively state that it has"no objections to the project as presently proposed."
61. As of the date of the submission of the application for the CAMA permit, Seapath
had in its possession a complete set of design drawings for the project; the Project Manual; a
description of the area of Seapath's property that T.A. Loving would be using; and had met with
representatives of the Yacht Club and received other information about the project. However, as
of September 28, 2009, Seapath had provided none of this information to Andrew for his review,
who had nothing further to do with the project since August, 2008.
62. Nevertheless, on September 28, 2009, O'Shea, on behalf of Seapath, formally
objected to issuance of the CAMA permit for the project by the North Carolina Division of
Coastal Management, contending, in part, that "there is no legal agreement between the...Yacht
Club and Seapath...authorizing any encroachment on the Seapath...property for this new
project."
63. Between August 2008 and prior to the submission of its objection, Seapath had
not discussed the needed repairs to the Yacht Club Bulkhead with Andrew_ the "means and

adjacent to existing bulkhead," but as a direct result of Seapath's objection would not authorize
any of the needed work to be performed on the property of Seapath.
69. T.A. Loving could not and would not reasonably effectuate the needed repairs to
the Yacht Club Bulkhead and tieback system, nor undertake the replacement of various utilities,
without gaining access to the property of Seapath pursuant to the express easement granted to the
Yacht Club for that purpose. While Seapath contends that there were alternate "means and
methods" that T.A. Loving could have used, it offered no evidence in support of that contention.
In fact, T.A. Loving and another marine contractor that bid on the project testified that Seapath's
suggested alternate means and methods had been considered and rejected by them, and that the
proposed"means and methods"was in all respects reasonable.
70. Seapath's objection to the issuance of the CAMA permit interfered with the Yacht
Club's exercise of its rights granted under the express easement contained in the 1987
Agreement, and interfered with the express purposes for which the easement was granted by
Seapath to the Yacht Club, namely, maintaining the Yacht Club Bulkhead and its tieback system.
71. As a result of Seapath's objection, the Yacht Club, Pyrtle and T.A. Loving were
forced to alter, and therefore reduce, the scope of the work that needed to be performed on the
Yacht Club Bulkhead and its tieback system, and in November, 2009, Pyrtle requested T.A.
Loving to revise its bid, which T.A. Loving agreed to do.
72. However, given the reduced scope of the work to be performed by T.A. Loving
(roughly one-half of the needed repair work to the Yacht Club Bulkhead) the contractor's revised
bid/contract contained unit prices greater than the units prices contained in T.A. Loving's

contained therein, he would have stated in his Affidavit that the proposed project posed no risk to
the Tower.
78. O'Shea reviewed certain information on the internet about crane accidents, and
was concerned that if the crane fell into the Seapath Tower, causing significant damage to the
Tower structure, that Seapath could not be rebuilt.
79. Neither Andrew nor O'Shea had received information sufficient to perform any
calculations about the nature and extent of any loads of the crane on the Yacht Club Bulkhead,
but T.A. Loving had performed such calculations, and was convinced that its proposed "means
and methods"posed no risk to Seapath.
80. Notwithstanding Seapath's concerns about the risks of the "means and methods"
to be used by T.A. Loving, a marine contractor of outstanding experience and reputation, there
were far greater risks to the Tower if the needed repairs to the Yacht Club Bulkhead and tieback
system were not timely performed.
81. The Yacht Club had initially scheduled the construction to begin in November
2009, but it delayed commencement of the work until January 28, 2010, hoping that Seapath
would withdraw its objection.
82. The Yacht Club had planned for the project to take place in the winter months to
avoid disruption of members' seasonal use of the marina facilities.
83. The Yacht Club had a duty to its Members, and, pursuant to the provisions of the
1987 Agreement, had a duty to Seapath, to maintain the Yacht Club Bulkhead and its tieback
system.

areas, without appearing to encroach across a line equal to or closer to the work than the Tower
property line.
90. Plaintiff's evidence indicates that Plaintiff knew that completing the work in
Phase A before performing the Phase B work could cause Plaintiff to incur damages.
Specifically, the evidence indicates that work during Phase B (after the completion of Phase A)
could result in damage to the work completed during Phase A. The estimate of the work that
would need to be done to correct the damage caused by completing Phase A before performing
the work of Phase B is $166,339. There was evidence presented through Plaintiff's witness, Stan
Rudd, that the remaining work could be done without damage to the work done in Project A
either by use of a barge or a smaller crane, and that the work from a barge would cost"a lot less"
than the cost proposed by Plaintiff.
91. The work actually performed by T.A. Loving was uneventful, from January 2010
until the end of March 2010. Notwithstanding the fears of Seapath, the crane used to perform the
work on Yacht Club property did not cause the bulkhead to collapse, did not fall over, and did
not cause any unintended disturbance.
92. On March 15, 2010, T.A. Loving informed the Yacht Club that it must
demobilize from the site due to its inability to complete the contract without accessing the
property of Seapath.
93. The Yacht Club's plan for use of its easement across the property of Seapath
extended no further than the outer boundary of the 1987 easement, as measured by the location
of the existing tieback system components, including deadmen.

102. While the Yacht Club's proposed use of the easement was reasonable, this Court
finds that Seapath's use of the servient estate was unreasonable because Seapath materially
interfered with the Yacht Club's enjoyment of its easement.
103. The Court should consider "the relative advantage to the servient estate and the
relative disadvantage to the dominant estate." Williams, 102 N.C. App. at 465, 402 S.E.2d at
441.
104. While Seapath may not dictate the "means and methods" used by the Yacht Club
to maintain the Yacht Club Bulkhead, its suggested alternate "means and methods," namely,
maintaining the deadmen and therefore the existing tieback system, employing a barge-mounted
crane, are not reasonable and create a risk, not an advantage,to either the Yacht Club or Seapath.
105. The Yacht Club would be disadvantaged by undertaking the required work to the
Yacht Club Bulkhead and tieback system in accordance with any of Seapath's proposed "means
and methods", either by reason of the increased costs that would not be reasonably necessary, or
the increased risks in undertaking the project to both the Yacht Club and Seapath.
106. Failure of the bulkhead would cause serious financial and practical hardships for
the Yacht Club because the Yacht Club's docking facilities depend directly on the existence and
stability of the bulkhead.
107. Failure of the bulkhead would require the Yacht Club to replace the bulkhead or
find alternative means to support its operations and meet its obligations to its Members.
108. The Yacht Club intended to perform the work in a reasonable manner and
r...n.;etp„t with the 1987 Agreement's provision that work anticipated immediately following

115. The unit prices would increase, however, should T.A. Loving be required to use a
barge-mounted crane to perform work behind the Marina Store, and may increase due to the
passage of time since the September 2010 communication.
116. To arrive at a minimum estimate for completion of the work, the unit quantities
shown in each line item on the Phase A itemization may be subtracted from the quantities in each
line item on the Bid Form originally submitted by T.A. Loving to the Yacht Club for the entire
project, which would produce the quantities of units per line item that remain to be completed
under Phase B.
117. Each of the Phase B quantities then may be multiplied by the unit prices reflected
on the Phase A itemization to reach a minimum estimate for the conduct of Phase B in
accordance with the September 17, 2010, communication from T.A. Loving.
118. The Court finds that based upon that methodology, described at trial by Stephen
Salter of T.A. Loving and Pyrtle, the minimum estimated cost for Phase B of the construction
project would be $442,049.
119. Plaintiff claims damages of $166,000.00 for repair of concrete walks installed
during repair and construction of Phase A. While the Court finds such damages may occur, it
does not find the same will in fact occur, and if they do occur, the Court cannot find the repair
would be as extensive as claimed. Such evidence is speculation. Additionally the Court finds
some or all of these damages may be avoided by care of contractors or slight modifications in
crane size, etc. Thus the Court does not consider this item of damages as fact.
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128. Before the work began on the Yacht Club Bulkhead, and prior to the date that the
Yacht Club and its contractor, T.A. Loving, needed to utilize the easement granted to the Yacht
Club, Seapath repudiated its obligation under the 1987 Agreement.
129. As a direct and proximate result of Seapath's conduct and interference, the Yacht
Club has been damaged, and is entitled to recover from Seapath, the sum of $270,172,
representing the reasonable increased costs of repairs to the Yacht Club Bulkhead, over and
above the amount of the original T.A. Loving bid/contract, and the additional engineering costs
made necessary during the construction of the remaining work on the Yacht Club Bulkhead,
which damages were within the reasonable contemplation of the parties at the time of the
execution of the 1987 Agreement.
130. Upon motion of Defendant, Defendant is allowed to amend its pleadings to
include the failure to mitigate defense, and it is hereby declared that the "failure to mitigate"
defense is an appropriately pled defense to Defendant.
131. Seapath failed to meet its burden at trial of showing that the Yacht Club did not
make reasonable efforts to mitigate its damages, and this Court specifically finds that the Yacht
Club made reasonable efforts to mitigate any damages in the exercise of its duty to maintain the
bulkhead under the 1987 Agreement and in accordance with the duty it owed to Yacht Club
members by attempting to repair the entire tieback system and then undertaking to repair that
portion that the Yacht Club was reasonably able to access.
132. The Yacht Club was not required to wait for the resolution of this case before
undertaking to complete its obligations to maintain the Yacht Club Bulkhead and its tieback

7. In objecting to the needed work on the Yacht Club Bulkhead; objecting to the
Yacht Club making use of its easement across the property of Seapath, despite full knowledge of
the 1977 and 1987 agreements; and in failing to consult with its own expert, Andrew, as found,
about the need for the repairs to the Yacht Club Bulkhead prior to its objection to the work,
Seapath breached its duty of good faith and fair dealing arising from its contractual obligations
under the 1977 and 1987 Agreements.
8. Seapath's conduct was the direct and proximate cause of injury and damage to the
Yacht Club.
9. An easement is a contract that is to be construed to ascertain the intention of the
parties at the time it was created. Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C.
717, 719, 127 S.E.2d 539, 541 (1962); Intermount Distribution, Inc. v. Pub. Serv. Co. of N.C.,
Inc., 150 N.C. App. 539, 542, 563 S.E.2d 626, 629(Ct. App. 2002).
10. The intention of the parties must be determined by considering the entire
instrument and the context of the agreement. Weyerhaeuser, at 718-20, 127 S.E.2d at 541.
11. North Carolina courts follow this principle: "When the language of a contract is
clear and unambiguous, effect must be given to its terms, and the court, under the guise of
constructions, cannot reject what the parties inserted or insert what the parties elected to omit. It
is the province of the courts to construe and not to make contracts for the parties. The terms of
an unambiguous contract are to be taken and understood in their plain, ordinary and popular
sense." Id. at 718-20, 127 S.E.2d at 541 (internal citations and quotes omitted).
12. In North Carolina, moreover, the holder of an easement has "all rights that are

20. The location and scope of the easement granted by Seapath to the Yacht Club in
the 1987 Agreement is any part of Seapath's property where components of the bulkhead tieback
system may be found, "including deadhead in its present location"on Seapath's property.
21. The intent of the parties that the scope of the easement be the location of the tie-
back system components is clear in the express purpose of the 1987 Agreement that the grant
was"for the purpose of maintaining"that tieback system"in good functional condition."
22. The intent of the parties as to the scope of the easement is also reflected by
Seapath's imposition, and the Yacht Club's acceptance, of a duty to so maintain the Yacht Club
Bulkhead and tieback system at the Yacht Club's sole expense.
23. Imposition of a duty to perform an obligation implies the ability to perform, in
this case to enter the property of Seapath over the easement expressly granted and maintain the
tieback system in good functional condition.
24. The parties clearly contemplated encroachment by the Yacht Club on Seapath's
property, and disturbance thereof in order to reach the tieback system components buried in the
ground.
25. Applying the terms of the 1987 Agreement in their ordinary and popular sense,
the Yacht Club holds an easement across the property of Seapath for the purpose of maintenance
of the bulkhead tieback system.
26. The 1987 Agreement contains no express terms of limitation on the Yacht Club's
enjoyment of its easement for the purpose of maintaining the bulkhead tieback system.
27. Use of an easement without express limitations. however_ must be "reasonably

reasonable and convenient use of the easement in furtherance of the parties' intent as expresse
in the 1987 Agreement.
35. The Court must construe an easement agreement with reason and common sens
in an effort to produce a just result when resolving any doubt about the intention of the parties a
the time of the grant. Id. at 122, 505 S.E.2d at 324 uotin Hine v. Blumenthal, 239 N.C. 53;
547, 80 S.E.2d 458,466 (1954); Lovin v. Crisp, 36 N.C. App. 185, 189,243 S.E.2d 406, 410 (Ci
App. 1978).
36. The Court will not construe an express easement in such a manner as to deny till
holder the benefit of the grant. See Lovin, 36 N.C. App. at 190, 243 S.E.2d at 410 (declining tc
construe the term "lands" expansively to produce a patent ambiguity that would void at
easement to take water for the grantee's "lands" as part of a conveyance of certain land to the
grantee).
37. The 1987 Agreement was intended to accomplish a number of goals: 1) to grans
an easement for the purposes of the Yacht Club's maintenance of the bulkhead tieback system:
2) to impose the affirmative obligation on the Yacht Club to maintain the Yacht Club Bulkhead;
3)to reaffirm the 1977 Boundary Line Agreement by again granting the Yacht Club an easement
to maintain its utilities lines, "including replacement where needed," by means of removing
Seapath's fence if necessary; and 4)to establish ground rules and expectations for the conduct of
work then proposed that was expected to involve both the tieback system and the utilities lines at
the boundary between the two properties.
38. The Court finds amnle evidence of thnce mnitinle nnrnncec within the lane„a RP(.4

•
45. The Court further construes the term "maintain"to include replacement of tieback
system components as proposed by the Yacht Club.
46. Immediately following execution of the 1987 Agreement granting an easement
"for the purpose of maintaining" the bulkhead tieback system, the Yacht Club replaced tie rods
connecting the bulkhead to the existing deadman anchors, which are "acts of the parties in the
use of the easement immediately following the grant" that must inform "'the practical
interpretation put upon the grant."' Williams, 102 N.C. App. at 465, 402 S.E.2d at 440,.
47. Maintenance necessarily includes replacement of parts as necessary. See
Lindheimer v. Illinois Bell Tel. Co., 292 U.S. 151, 174 (1934) (holding that outlays for
maintenance charged to current expenses may involve many substitutions of new for old parts).
48. The parties to the 1987 Agreement clearly intended to provide for maintenance of
a crucial component of the bulkhead, which requires a tieback system that is in"good functional
condition," as expressed by the easement's imposition of a maintenance duty on the Yacht Club.
See Weyerhaeuser, 257 N.C. at 719, 127 S.E.2d at 541 (emphasizing the intent of the parties).
49. Interpreting the terms of the 1987 Agreement and the intent of the parties to
include replacement of the tieback system within the terms "maintain" and"maintaining"is well
supported by the fact that witnesses for Seapath acknowledge that the bulkhead benefits the
Seapath Tower condominium by protecting it from erosion and storm surge.
50. The Court's conclusion that the parties intended maintenance to include
replacement of the tieback system is supported by language elsewhere in the 1987 Agreement
regarding the easement for utilities, in which the parties provided for certain activities conducted

57. Reasonableness of a use by the servient estate is determined by whether the
servient estate impermissibly interferes with the dominant estate's reasonable enjoyment of the
easement. Id.
58. An easement may be misused or overburdened when a dominant estate uses the
easement "for a kind of use not contemplated in the easement." City of Charlotte v. BMJ of
Charlotte, LLC, 196 N.C. App. 1, 20, 675 S.E.2d 59, 71 (Ct. App. 2009), review denied, 363
N.C. 800, 690 S.E.2d 533 (2010).
59. The Yacht Club has not sought to use its easements for a kind of use not
contemplated in the easement.
60. The Yacht Club has not overburdened its easements by proposing work or
methods that differ from the express purpose of the easement granted in 1987.
61. Seapath impermissibly interfered with the Yacht Club's reasonable enjoyment of
the easement.
62. Applying the standard that an easement is subject to reasonably necessary and
convenient uses by the dominant estate, Intermount Distribution, 150 N.C. App. at 542, 563
S.E.2d at 629, requires consideration of the "purposes for which the easement was granted."
Shingleton, 260 N.C. at 457, 133 S.E.2d at 187.
63. An easement is overburdened if the dominant estate exceeds its easement rights.
Hundley, 105 N.C. App. at 435, 413 S.E.2d at 298 (citing Hales v. Atlantic Coast Line Railroad
Co., 172 N.C. 104, 90 S.E. 11 (1916)); see, e.g., Moore v. Leveris, 128 N.C. App. 276, 495
S.E.2d 153 (Ct. App. 1998) (holder of an easement for maintenance of a road for the nurnose of

of the creating conveyance." Williams, 102 N.C. App. at 465, 402 S.E.2d at 441 citin
g
RESTATEMENT(FIRST)OF PROPERTY § 486(1944)).
71. In North Carolina, the servient estate may not do or permit anything to be done
that results in impairment of the easement. Strickland v. Shew, 261 N.C. 82, 85, 134 S.E.2d 137,
140 (1964); see also Duke Energy Corp. v. Malcolm, 178 N.C. App. 62, 67, 630 S.E.2d 693, 696
(Ct. App. 2006) (holding that the rights reserved to the servient estate "are restricted by the
enumerated rights granted to the dominant tenant in accordance with the easement"), aff d, 361
N.C. 111, 637 S.E.2d 538 (2006).
72. Thus the servient estate is prohibited from materially impairing an easement,
meaning it may not allow or conduct any activity which would result "in increased cost or
inconvenience to the easement holder in exercise of his rights or which would create a safety
hazard should those rights be exercised." Falkson, 174 N.C. App. at 618, 621 S.E.2d at 217
(quoting PATRICK K. HETRICK&JAMEs B. MCLAUGHLIN,JR., WEBSTER'S REAL ESTATE LAW IN
NORTH CAROLINA § 15-23 (5th ed.1999)).
73. The servient estate's use of the easement property may not conflict with the rights
of the dominant estate, may not be inconsistent with the purpose for which the easement was
granted, and may not hinder the dominant estate's "free exercise of the easement." Duke
Energy, 178 N.C. App. at 67, 630 S.E.2d at 697; see also Hatfield v. Jefferson Standard Life Ins.
Co. Inc., 85 N.C. App. 438, 355 S.E.2d 199(1987) (holding that the servient estate may not close
access to an easement even though the dominant estate has gained alternative access to the
streets because express easement rights do not expire with the need for them), review denied.

United States v. Sea Gate, Inc., 397 F.Supp. 1351, 1360 (E.D.N.C. 1975) (holding that "a deep
creating an easement by express reservation is a contract").
80. Seapath did not exercise good faith, fair dealing and cooperation in its conduc
that prevented the Yacht Club from completing all required work to the Yacht Club Bulkhead
including its tieback system.
81. An implied promise of good faith is a valid and enforceable part of a contract
Mezzanotte v. Freeland, 20 N.C. App. 11, 19, 200 S.E.2d 410, 416 (Ct. App. 1973), cert. denied
284 N.C. 616, 201 S.E.2d 689 (1974).
82. The Seapath Board of Directors did not adequately inform itself of the merits an(
liabilities of the Yacht Club's proposed project by conferring with its engineer, Mr. Andrew
from and after August 2008, and prior to the submission of its September 29, 2009 objection
See N.C.G.S. §§ 55A-8-30(a) and 42(a). See Roscower v. Bizzell, 199 N.C. 656, 656, 155 S.E
558, 559 (1930) (holding that directors and managing officers of a corporation are "liable foi
either willful or negligent failure to perform their official duties"); see also Ivanhoe Partners v
Newmont Min. Corp., 535 A.2d 1334, 1345 (Del. 1987) (holding that a corporate board's duty of
care "requires a director, when making a business decision, to proceed with a `critical eye' by
acting in an informed and deliberate manner respecting the corporate merits of an issue before
the board"); Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985), rev'd on other grounds, 965
A.2d 695 (Del. 2009) (holding that directors must inform themselves "prior to making a business
decision, of all material information reasonably available to them"); Kaplan v. Centex Corp.,284
A.2d 119, 124 (Del. Ch. 1971) ("Application of the rule of necessity depends upon a showing

89. The injury to the Yacht Club's easement, the dominant estate here, is the product
of Seapath's continuing wrongful interference and obstruction of the Yacht Club's rights to use
the easement expressly granted by Seapath for its intended purposes.
90. Applying the methodology already accepted by the Court in its Findings of Fact,
and the law for redress of a continuing wrongful interference with easement rights, the Court
concludes that the proper measure of actual damages to the Yacht Club is the difference between
T.A. Loving's bid for the entire project and the estimated total charge by T.A. Loving for
completion of both Phases A and B, based upon unit prices renegotiated as a result of T.A.
Loving's demobilization from the site due to Seapath's interference with the Yacht Club's
easement rights, and as adjusted for materials already purchased and a $34,080 change order
undertaken during Phase A.
91. Furthermore, the Court concludes that as a consequence of Seapath's interference
with the Yacht Club's easement rights, the Yacht Club will incur additional reasonable
engineering costs of$45,000.00 during the remaining repairs that need to be performed on the
Yacht Club Bulkhead.
92. Accordingly, as a direct and proximate result of the conduct of Seapath in
interfering with the rights granted to the Yacht Club under the express easement contained in the
1987 Agreement, the Yacht Club is entitled to recover damages from Seapath in the amount of
$270,172.
93. This Court also finds that declaratory and injunctive relief are appropriate to
effect the purposes for which Seapath granted the 1977 and 1987 easements to the Yacht Club.

'1
2. The 1987 Agreement granted and conveyed an express easement to the Yacht
Club for the purpose of maintaining the bulkhead tieback system, including the deadman anchors
located on Seapath property.
3. The 1987 Agreement and the easement granted therein includes the right on the
part of the Yacht Club to undertake any reasonable actions to keep the bulkhead tieback system
in good functioning condition, including replacement of components of the tieback system and
bulkhead.
4. The Yacht Club's easement rights permit it to enter upon the Seapath property to
conduct operations consistent with the purposes for which Seapath granted the express easement
contained in the 1987 Agreement, namely, to maintain the bulkhead and its tieback system.
Consistent with the doctrine of reasonable enjoyment followed in North Carolina, the Yacht
Club's easement rights across the property of Seapath shall extend no more, and no less, than
reasonably necessary to maintain the bulkhead and its tie back system. The Yacht Club may
exercise its easement rights using any means and methods it chooses so long as those methods
are reasonable and consistent with the purposes for which the easement was granted.
5. Pending payment by Seapath to the Yacht Club of the sums herein awarded to it,
the Yacht Club is hereby relieved of its duty to maintain the bulkhead and its tieback system.
6. Seapath is enjoined and restrained from objecting to the issuance of any permits
that may be necessary for the Yacht Club to undertake repairs to the Yacht Club Bulkhead and
its tieback system to the extent that any such objection is based upon lack of an easement.
7. Seapath is permanently enjoined and restrained from interfering with the Yacht

8. Plaintiff shall have and recover of the Defendant the sum of $270,172, plus
interest at the legal rate from and after the date of the filing of this action, which for purposes of
this calculation the Court has determined to be the date of the breach of Seapath's obligation to
the Yacht Club,plus the costs of this matter.
9. This Court shall retain jurisdiction over this matter for the entry of such other and
further Orders as may be necessary to effectuate the purposes of this Judgment.
This the 71c day of April, 2011.
D. JAC O S .
SUPERIOR OU T JUDGE

States v. Sea Gate, Inc., 397 F.Supp. 1351, 1360 (E.D.N.C. 1975) (holding that "a deed creating
an easement by express reservation is a contract").
95. "As a general rule, if either party to a bilateral contract commits a material breach
of the contract, the non-breaching party is excused from the obligation to perform further."
McClure Lumber Co. v. Helmsman Const., Inc., 160 N.C. App. 190, 197, 585 S.E.2d 234, 239
(Ct. App. 2003) (citing Lake Mary Ltd. Part. v. Johnston, 145 N.C. App. 525, 537, 551 S.E.2d
546, 555 (Ct. App. 2001), disc. review denied, 354 N.C. 363, 557 S.E.2d 539 (2001)).
96. Seapath committed a material breach of its obligations under the 1987 Agreement,
and as such, pending the payment by Seapath of the sums awarded herein to the Yacht Club, the
Yacht Club is relieved of any further duty to maintain the bulkhead at its sole expense.
97. Although this Court fmds that the Yacht Club is the holder of an express easement
across the property of Seapath for purposes of maintaining the Yacht Club Bulkhead and its
tieback system, the easement exists for the benefit of both the Yacht Club and Seapath as
reflected by the historical co-dependence of the parties on the existence of the bulkhead and the
value derived from the Bulkhead by Seapath during its more than 30-year existence.
WHEREFORE, BASED UPON THE FOREGOING FINDINGS OF FACT
AND CONCLUSIONS OF LAW, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED AS FOLLOWS:
1. The 1977 Agreement granted and conveyed an easement to the Yacht Club for
maintenance and installation of utilities on Seapath property within a reasonable distance of the

83. Upon being presented with all of the pertinent facts, Mr. Andrew is of the opinion
that the means and methods proposed by the Yacht Club, through its contractor, T.A. Loving,
posed no risk to Seapath.
84. The Yacht Club needed no permission from Seapath to exercise its right to
reasonably use the express easement granted under the 1987 Agreement for its intended purpose.
85. This Court finds that the history of the two properties,the existence of agreements
providing for maintenance of utilities and the bulkhead tieback system, and facts showing that
Seapath has derived significant benefits from the Yacht Club's maintenance of the bulkhead and
its related facilities all weigh against allowing Seapath to now deny easement rights which the
Yacht Club clearly believed it held for more than two decades and justified significant
expenditures in reliance on that belief.
86. The Yacht Club is entitled to damages resulting from Seapath's interference with
the Yacht Club's rights in the easement expressly granted under the 1987 Agreement.
87. An injured party is entitled to such damages as would place him in the same
position that he would have occupied if a breach of the contract not occurred. Metcalf v. Palmer,
61 N.C. App. 136, 138-39, 300 S.E.2d 401, 403 (Ct. App. 1983).
88. In North Carolina, damages are available to a dominant estate holder "where a
servient tenant impermissibly interferes with a dominant tenant's use of an easement." Falkson,
174 N.C. App. at 619, 621 S.E.2d at 217(citing Williams v. Skinner, 93 N.C. App. 665, 673, 379
S.E.2d 59, 64-65 ("It is a correct proposition that the holder of an easement may seek monetary
damages for wrongful interference with his use of the easement."), cert. denied, 325 N.C. 277,

•
easement "if they are constructed and operated so as not unreasonably to interfere with the
plaintiff's right of passage").
74. Where an easement is silent about uses that the servient estate contends are
required of the dominant estate, the servient estate's requirement must be necessary to the
servient estate and must not unreasonably interfere with the dominant estate. Williams, 102 N.C.
App. at 465,402 S.E.2d at 441.
75. The balance of equities therefore clearly favors enforcement of the Yacht Club's
rights pursuant to the easement granted to it by Seapath, and therefore Seapath's interference
with those rights, as set forth above, conflicts with the dominant estate's rights.
76. Furthermore, barring the Yacht Club from the easement is impermissible because
it is inconsistent with the purpose for which the easement was granted, which was to maintain
the bulkhead tieback system. Duke Energy, 178 N.C. App. at 67, 630 S.E.2d at 697.
77. Seapath's actions, particularly its objection that resulted in the state restricting the
Yacht Club's activities within the easement, also interfered with the Yacht Club's"free exercise"
of its easement. Duke Energy, 178 N.C. App. at 67, 630 S.E.2d at 697.
78. Objecting to issuance of a permit that would allow the work to proceed within the
easements granted in 1977 and 1987 constitutes a breach of Seapath's duties of good faith, fair
dealing and cooperation.
79. Because an easement agreement is nothing more than a contract to which ordinary
contractual principles apply, an easement agreement "implies good faith and fair dealing
between the parties to it, and a duty of cooperation on the part of both parties." Gallimore, 78

N.C. App. at 20, 675 S.E.2d at 71 (mere increase in traffic volume over an easement for a road is
not misuse or overburdening).
64. Likewise, the servient estate may only use the easement property "consistent with
the purpose for which the easement was created." Hundley, 105 N.C. App. at 436, 413 S.E.2d at
298 (property owner may not erect a gate across the easement of another for ingress and egress).
65. The Yacht Club's proposed use of the easement granted in the 1977 and 1987
agreements is consistent with the use intended and the rights conveyed.
66. The work proposed by the Yacht Club over the easement and the property of
Seapath does not exceed the rights granted in the easement conveyed for the purpose of
maintaining the bulkhead tieback system.
67. The proposed use does not overburden the easement when compared with the use
to which the easement conveyed in thel 987 Agreement was put soon after its execution.
68. The 1987 Agreement conveyed an easement for the purpose of maintaining the
bulkhead tieback system, which may be performed by means that are reasonable and convenient
to the Yacht Club, including use of a land-based crane when such a crane does not overburden
the easement granted(which it does not).
69. Mere encroachment on the easement does not constitute misuse when the
easement provided for maintenance of facilities buried on Seapath's property, because
encroachment was clearly contemplated by the parties at the time of making the 1987
Agreement.
70. It is fundamental that the possessor of land subject to an express easement "is

51. The Court therefore concludes that replacement of the tieback system constitutes
maintenance as the easement conveyed by the 1987 Agreement was intended by the parties at the
time of the grant, as well as in accordance with express terms of the agreement read as a whole
and with commonly understood definitions of maintenance in other contexts.
52. The 1987 Agreement contained no express limitations on the easement for the
purpose of maintaining the bulkhead tieback system, and this Court will not insert them by
requiring Seapath's approval of the means by which the Yacht Club exercises its easement
rights. Weyerhaeuser,257 N.C. at 720, 127 S.E.2d at 541-42.
53. Absent express limits, an easement grants unlimited use that is not fixed at the
time of the grant but may grow to accommodate any use to which the dominate estate is devoted.
Shingleton v. State, 260 N.C. 451, 457, 133 S.E.2d 183, 187 (1963).
54. "Thus there may be an increase in the volume and kind of use of such an
easement during the course of its enjoyment. The reasonable use and enjoyment of an easement
is to be determined in the light of the situation of the property and the surrounding
circumstances." Id. at 457, 133 S.E.2d at 187 (internal quotations omitted); see also Patrick
County, Va. v. U.S., 596 F.2d 1186, 1191 (4th Cir. 1979) (holding that "where an easement is
reserved it may be used for any purpose to which the property for whose benefit the easement
exists may reasonably be devoted,unless the reservation specifically limits the use").
55. Use of property subject to an easement by either the servient or dominant estate
must be reasonable. Hundley v. Michael, 105 N.C. App. 432, 435-36, 413, S.E.2d 296, 298 (Ct.
App. 1992).

39. The 1987 Agreement further distinguished between "the work"to be conducted in
1987 and the Yacht Club's "rights to the bulkhead, deadman and tie back system" and its
affirmative obligation thereafter to maintain the bulkhead.
40. The Court cannot construe the 1987 Agreement as providing for only the conduct
of demolition and construction work planned at that time, because to do so would imply that the
"easement" and "rights" contemplated in the document constitute a mere license to perform
specific work when no such limited intent is evident by the express terms of the agreement.
41. The Court finds that the 1987 Agreement's use of the terms "gives, grants,
bargains, sells, and conveys" are terms of conveyance rather than license, which is supported by
the agreement's use of the term "easement" rather than a term denoting a limited and revocable
license to encroach on Seapath's property.
42. The Court also is persuaded that the purpose of the easement for "maintaining"
the tieback system, and the agreement's mandate that the Yacht Club "shall have the duty to
maintain that bulkhead tie back system,"refer to future activities and not those expected to occur
as part of work planned at the time the 1987 Agreement was executed.
43. Furthermore, an interpretation limiting activities within the easement to activities
specifically provided for and conducted in 1987 would be contrary to the "presumption that
advances in technology are contemplated in the grant of an easement." Keener, 161 N.C. App. at
638, 589 S.E.2d at 734.
44. The Court thus concludes that the 1987 Agreement conveyed an easement to the
Yacht Club for the purpose of future maintenance of the tieback system independent of any work

28. In fact, North Carolina courts follow the doctrine of reasonable enjoyment, under
which an easement's extent is defined by the purpose for which it was granted and the scope
necessary to effectuate that purpose. Keener v. Arnold, 161 N.C. App. at 638, 589 S.E.2d at 734.
29. Furthermore, an easement without limitations on its use allows the grantee to
make "other reasonable uses that develop over time if such uses significantly relate to the object
for which the easement was granted." Intermount Distribution, 150 N.C. App. at 543, 563
S.E.2d at 630(internal quotations omitted).
30. Absent express limitations, an express easement also may be expanded "to
accommodate modern developments" that are consistent with the purpose of the original grant
and to accommodate advances in technology that are presumed to have been contemplated in the
grant of easement. Id.
31. The 1987 Agreement granted broad authority to maintain the bulkhead tieback
system but imposed no limits on the easement for that purpose.
32. The 1987 Agreement is therefore limited to uses "reasonable and convenient" to
effectuate the intent of the parties.
33. The 1987 Agreement did not limit the Yacht Club from effectuating the purpose
of the easement by any particular means, and therefore, the Yacht Club need only perform in a
reasonable manner. In addition, the 1987 Agreement does not permit Seapath to dictate the
means for effectuating the purpose of the easement.
34. Because this Court finds that as a matter of law the 1987 Agreement granted
easement rights to the Yacht Club, and because this Court has found as fact that the vart,*

13. The servient and dominant estates owe each other contractual duties of good faith
and fair dealing. Gallimore v. Daniels Constr. Co., 78 N.C. App. 747, 751, 338 S.E.2d 317, 319
(Ct. App. 1986),
14. Willful rendering of imperfect performance, abuse of a power to specify terms,
and interference with or failure to cooperate in the other party's performance may constitute bad
faith in the performance of obligations under an easement agreement. See RESTATEMENT
(SECOND)OF CONTRACTS § 205.
15. In addition to seeking injunctive relief to enforce an easement, the owner of an
easement may seek damages from a servient estate that negligently or willfully interferes with
the rights of the easement holder. Falkson v. Clayton Land Corp., 174 N.C. App. 616, 619, 621
S.E.2d 215, 217 (Ct. App. 2005).
16. The terms of the 1977 Agreement are perfectly clear in granting the Yacht Club
an "easement and right of way" for utilities on its property, subject only to the limitation that
new such facilities be located"as close as possible"to the boundary line established in that same
instrument.
17. An express conveyance controls when the conveyance is "perfectly precise" as to
the extent of the easement. Williams v. Abernethy, 102 N.C. App. 462, 464-65, 402 S.E.2d 438,
440(Ct. App. 1991).
18. Seapath's actions, however, had the force and effect of prohibiting any work that
would disrupt its property, regardless of and, in fact, despite the 1987 Agreement's express grant
to the Yacht Club of a right of way for such work.

WHEREFORE, BASED UPON THE FOREGOING FINDINGS OF FACT, THE
COURT MAKES THE FOLLOWING:
CONCLUSIONS OF LAW/DECLARATORY JUDGMENT
1. All parties are properly before the Court, and that the Court has jurisdiction of the
parties and of the subject.
2. All parties have been correctly designated, and there is no question as to
misjoinder or nonjoinder of parties.
3. The Yacht Club is the owner of an easement across the property of Seapath for
purposes of maintaining the bulkhead and its tieback system.
4. Seapath knowingly prevented, hindered or made more costly the Yacht's Club's
performance of a material term of the 1987 Agreement, namely, the Yacht Club's obligation to
maintain the Yacht Club Bulkhead, and at the time that Seapath engaged in such conduct, the
Yacht Club was willing to perform its obligations as agreed and would have done so but for the
conduct of Seapath.
5. Seapath interfered with the rights granted to the Yacht Club under the express
provisions of the 1987 Agreement, and the express easement granted therein, by objecting to the
issuance of the CAMA permit; refusing to permit the Yacht Club to make use of its easement;
and thereby making more costly the needed repairs to the Yacht Club Bulkhead.
6. Before the work began on the Yacht Club Bulkhead, and prior to the date that the
Yacht Club and its contractor, T.A. Loving, needed to utilize the easement granted to the Yacht

to incur substantially similar engineering costs during the construction of Phase B.
121. The Court also finds that stored materials already purchased by the Yacht Club
amount to$35,154.
122. The Court further finds that the evidence is sufficient to show that the estimates
contained herein for the conduct of Phase B are minimum amounts which likely understate the
actual cost of performing Phase B when that work is undertaken.
123. The Yacht Club is required to show that the amount of damages it seeks is based
upon a standard that will allow the finder of fact to calculate the amount of damages with
reasonable certainty. There is no requirement that the Yacht Club prove its damages with
absolute or mathematical certainty
124. The Yacht Club's methods of calculating its damages are reasonable.
125. The damages suffered by the Yacht Club by reason of Seapath's interference with
the rights granted to the Yacht Club under the 1987 Agreement and the express easement granted
therein, given the purpose of the 1987 Agreement, were reasonably within the contemplation of
Seapath and the Yacht Club at the time of the execution of the 1987 Agreement.
126. Seapath interfered with the rights granted to the Yacht Club under the express
provisions of the 1987 Agreement, and the express easement granted therein, by making more
costly the needed repairs to the Yacht Club Bulkhead.
127. Seapath knowingly prevented, hindered or made more costly the Yacht's Club's
performance of a material term of the 1987 Agreement, namely, the Yacht Club's obligation to
maintain the Yacht Club Bulkhead, and at the time that Seapath enQaeed in siirh rnndnnt tt,A

reasonably required." From the evidence, the Yacht Club intended to perform its obligations
under the 1987 Agreement consistent with the provisions thereof.
109. Seapath's effort to restrict the means by which the Yacht Club performs the
maintenance, and thus fulfill its duty under the 1987 Agreement to so maintain the bulkhead"at
its sole expense,"is inconsistent with the intent of the parties at the time of the grant of easement
contained in the 1987 Agreement.
110. T.A. Loving billed the Yacht Club, and the Yacht Club thereafter paid to T.A.
Loving, the sum of $506,975, representing approximately seventy-five percent of the original
$654,618 bid/contract price, based upon T.A. Loving's renegotiated and higher unit prices due to
the reduced scope of the project.
111. The renegotiated price was based on per-unit prices for 28 line items covering all
aspects of the demolition and construction work.
112. The per-unit prices were calculated according to efficiencies, or lack thereof,
derived from the volume of units and their attendant labor as required under the narrow scope of
a project that no longer included any work to the Yacht Club Bulkhead adjacent to the Seapath
property. .
113. Because the work to be performed in "Phase A" was smaller than the project for
which T.A. Loving originally bid, the per-unit costs generally increased due to inefficiencies,
although some downward adjustment reflected elimination of a barge previously required for
work behind the Marina Store as depicted in diagram SB-1.
114. On September 17, 2010, T.A. Loving informed the Yacht Club that under certain

a chain link fence intended to keep non-construction personnel out of the work zone.
95. The sum of the encroachment on the property of Seapath by reason of the Yacht
Club's exercise thus extends ten feet onto Seapath's property and aligns with the location of the
existing deadman anchors located approximately ten feet from the 1977 boundary line.
96. The proposed use of the easement by the Yacht Club was therefore reasonable.
97. The Yacht Club did not plan to misuse or overburden the 1977 and 1987
easements.
98. The term "maintain" includes replacement of parts as needed, including the
tieback system, that is necessary to the continued functioning of the bulkhead for the mutual
benefit of Seapath and the Yacht Club.
99. The Yacht Club has advanced the intentions of both parties to the 1987
Agreement and the purpose thereof.
100. Installing modern components of a tieback system to replace components of the
previous tieback system conforms with the presumption that "advances in technology are
contemplated in the grant of an easement,"which allows a party to increase its use of an express
easement to accommodate "modern developments, so long as the use remains consistent with the
purpose of which the right was originally granted." Keener v. Arnold, 161 N.C. App. 634, 638,
589 S.E.2d 731, 734 (Ct. App. 2003),review denied, 358 N.C. 376, 598 S.E.2d 136 (2004).
101. Furthermore, the Court is persuaded that the Yacht Club's plan to replace the
existing tieback system would reduce, not increase, the burden on the easement granted by
Seapath in the 1987 Agreement.

fact and is not a matter of law." Keller. 108 N.C. App. at 784-85, 425 S.E.2d at 434.
85. Seapath contends that the Yacht Club should not have undertaken to complete any
of the needed repairs to the Yacht Club Bulkhead until the issues in this case dealing with the
existence of an easement over the property of Seapath were resolved.
86. However, Seapath has not provided any evidence in support of its contention that
it would have been reasonable to wait, or that there were no risks or burdens to either the Yacht
Club or Seapath in waiting. To the contrary, Pyrtle testified that repairs to the Yacht Club
Bulkhead were needed, and that there were risks to both the Yacht Club and Seapath if these
repairs were not undertaken.
87. Therefore, it would not have been reasonable for the Yacht Club to wait to make
any repairs to the Yacht Club Bulkhead.
88. On February 1, 2010, the Yacht Club's Motion for a Preliminary Mandatory
Injunction came on for hearing before the Honorable Gary E. Trawick, Superior Court Judge,
who, on February 4, 2010, entered an Order Denying Plaintiff's Motion for Preliminary
Mandatory Injunction, finding that"[a]t this state of the litigation and on the available record,the
Court cannot determine whether the construction methods proposed by Plaintiff are reasonable
under the circumstances."
89. After the Yacht Club's Motion for Preliminary Mandatory Injunction was denied,
T.A. Loving continued to work on the Yacht Club Bulkhead. The Yacht Club began the project
with a "Phase A" section and a "Phase B" section, which cut the project approximately in half
with the dividing line being at approximately the point at which the Yacht Cluh maintainM it

Club sought a Preliminary Mandatory Injunction, enjoining and restraining Seapath from
"interfering with the right of the Yacht Club to access the property of the Tower for purposes of
undertaking the requisite repairs to the bulkhead, and otherwise enjoining and restraining the
Tower from taking any actions inconsistent with the rights of the Yacht Club" under the 1987
Agreement.
74. In December 2009, the Yacht Club informed Seapath that the costs for completing
work to the Yacht Club Bulkhead would be increased if the objection was not withdrawn, and
informed Seapath that the Yacht Club would seek to hold Seapath responsible for any increased
costs.
75. On January 7, 2010, T.A. Loving informed the Yacht Club and Seapath, in
writing, that when working in front of the Seapath Tower it planned to swing the boom of the
crane only toward the water and not toward the tower, "if at all possible," which required a work
zone within the Yacht Club's easement granted to it by Seapath in order to accommodate the
crane's counterweights.
76. In opposition to the Yacht Club's request for a Preliminary Mandatory Injunction,
Seapath filed an Affidavit of Andrew, in which he stated that it was "possible that the weight and
surcharge of the crane on Yacht Club's property and/or Seapath Tower's property will cause a
failure of the bulkhead. Such an event could cause the crane to fall onto the Seapath Tower
property....If the boom of the crane or any other part of the crane strikes the Tower,the resulting
damage could be significant."
77. However, at the time that Andrew executed this Affidavit, he was under the

•
upon a review of the project by its Board of Directors, none of whom have any expertise on any
of the technical issues associated with the needed repairs.
64. As a result of Seapath's objection, on or about October 5, 2009, Holley Snider of
the North Carolina Division of Coastal Management informed Pyrtle (Exhibit 39) that the
"strongest objection is to work/disturbance outside of the yacht club property and being
conducted on Seapath Tower property"and that "based on the objection, we would not authorize
any work to be conducted outside of the lateral bounds of the yacht club property."
65. On or about October 15, 2009, the Yacht Club formally requested that Seapath
withdraw its objections, and on October 16, 2009, the Yacht Club and its representatives,
including Pyrtle and representatives of T.A. Loving, met with Seapath's Board of Directors in an
effort to get Seapath to withdraw its objection.
66. By letter dated October 19, 2009, Seapath refused to withdraw its objections,
contending that the "means and methods" for undertaking the needed repairs to the Yacht Club
Bulkhead and its tieback system would require Seapath to assume "high risk and inherent
dangers of the construction method."
67. However, after August 2008 and as of October 19, 2009, Seapath had failed to
obtain any advice or opinions from either its own engineer, Andrew, or a marine contractor, that
any of the "means and methods"proposed by T.A. Loving did, in fact, expose Seapath to "high
risk and inherent dangers." In fact, Seapath's own expert, Mr. Andrew, upon being provided all
of the pertinent information, is of the opinion that the "means and methods" that T.A. Loving
proposed posed no risk to Seapath.

•
that Seapath did not intend to permit the Yacht Club to access its property for purpose of making
the needed repairs.
55. The Yacht Club and T.A. Loving's "means and methods" to perform the needed
repairs to the bulkhead and its tieback system, which included the requirement to access the
property of Seapath via the express easement granted to the Yacht Club for that express purpose,
was reasonable under the circumstances. Keller v. Cochran, 108 N.C. App. 783, 784-85, 425
S.E.2d 432, 434 (Ct. App. 1993) ("Whether a specific use of an easement constitutes a
reasonable use is a question of fact and is not a matter of law.")
56. Pyrtle, in consultation with T.A. Loving, established reasonable site construction
boundaries, approximately 10' in width (the "Work Zone"), on the property of Seapath, to
accommodate T.A. Loving's equipment and personnel in the performance of the needed work.
The Work Zone required across the property of Seapath in order to accommodate the needed
repairs was less intrusive and burdensome to Seapath than the easement area utilized by the
Yacht Club and its contractor during the work done on the Yacht Club Bulkhead in 1987.
57. The means and methods proposed by T.A. Loving to perform the needed work on
the Yacht Club Bulkhead and its tieback system was less intrusive to Seapath, with less risks,
than the means and methods utilized by the Yacht Club when undertaking the repair and
replacement of the bulkhead in 1987.
58. The Yacht CIub obtained the funds for the needed repairs to the Yacht Club
Bulkhead and its tieback system via a special assessment of its Members, the amount of which
was based upon the T.A. Loving bid/contract, the amount of which being premised unnn the

45. Pyrtle prepared a bid packet, including a project manual, to submit to designated
marine contractors that both the Yacht Club and Pyrtle wished to bid on the project, and the
Yacht Club received two (2) bids from T.A. Loving and Intracoastal Diving, opened at the bid
opening that occurred on July 1, 2009, which bid opening was attended by David Foster,
manager of Seapath.
46. Bids for the needed repairs were submitted by both T.A. Loving and Intracoastal
Diving. Marine contractors, like T.A. Loving and Intracoastal Diving, are in control of the
"means and methods" of repairs, and both proposed performing the required work using a land-
based crane, situated on wooden mats over the top of the Yacht Club Bulkhead, to perform
demolition and replace components of the tieback system.
47. Seapath contends that the work could have been performed using a crane mounted
on a barge that would access the area of the Yacht Club Bulkhead via the water. Given the
obligation imposed upon the Yacht Club to maintain the bulkhead and tieback system, and the
express easement granted by Seapath to the Yacht Club for that purpose, the Yacht Club is not
limited to specific means and methods, nor does Seapath have any right to control the "means
and methods"used by the Yacht Club in making use of the express easement granted to it.
48. In any event, neither T.A. Loving or Intracoastal Diving believed that such
"means and methods" were reasonable, given the risks associated with the use of a barge of the
size needed in the Yacht Club's marina facility, and would not have undertaken to make the
repairs to the Yacht Club Bulkhead using such"means and methods."
49. Both T.A. Loving and Intracoastal Diving are of the opinion that using a land-

who this Court has accepted as an expert in the field of structural engineering and the design and
repair of marine bulkhead structures, to conduct an investigation, which was concluded in the
Spring of 2008. Pyrtle's investigation revealed that the tieback system for the bulkhead was in
need of repair, including various steel components of the tieback system that had corroded and
failed.
33. As a result, Pyrtle recommended to the Yacht Club that the Yacht Club Bulkhead
be repaired, and Pyrtle began to design a system of repair.
34. During the month of May, 2008, representatives of the Yacht Club met with
representatives of Seapath and its Board of Directors to inform them about the condition of the
Yacht Club Bulkhead, the repairs that the Yacht Club needed to make thereto and the plans for
the repair that Pyrtle had designed.
35. At that time, Pyrtle had designed a system of repair using "helical anchors" that
would be driven into the ground, at or near the deadmen, both on the property of the Yacht Club
and Seapath.
36. At that time, Seapath, who had engaged Rod Andrew (herein "Andrew"), a
structural engineer, to monitor another bulkhead structure located along Motts Channel, which
Seapath had the obligation to maintain, and requested that Pyrtle communicate with Andrew
about the proposed methods of repair.
37. Pyrtle familiarized Andrew with the results of his investigation regarding the
condition of the Yacht Club Bulkhead and its tieback system.
38. Andrew, who the Court has also accepted as an expert in the field of structural

functional condition, at Yacht Club's sole expense."
22. Seapath contends, however, that any easement conveyed by it to the Yacht Club
was limited to maintaining the Yacht Club Bulkhead tieback system only through the
"deadhead" buried on the property of Seapath, and only in that method. The Court rejects that
contention, as set forth more specifically below, as such a construction is contrary to the clear
and express provisions of the 1987 Agreement and its declared purpose of"maintaining Yacht
Club's bulkhead tie back system."
23. The 1987 Agreement also granted the YACHT CLUB "the right to maintain all its
utilities lines on TOWER's property," for which easements were granted in the 1977 Agreement.
24. The 1987 Agreement further provided rules to be followed in the conduct of work
the Yacht Club then had planned, which included maintenance dredging of the marina,
replacement of the wooden bulkhead, and replacement of utilities lines and the sidewalk.
25. The 1987 Agreement provided that the Yacht Club would replace or restore
Seapath's fence and restore Seapath's "land to grade at a new elevation at least ten (10) inches
above its elevation on the date hereof with an appropriate slope to accommodate reasonably
anticipated water runoff and landscaped to the same condition essentially which that land now
enjoys."
26. The 1987 Agreement also provided:
6. The rights conferred upon YACHT CLUB hereby are granted with the
clear understanding that the land of TOWER shall be disrupted or
displaced only so much as is reasonably required to accommodate the
contract work, and YACHT CLUB hereby agrees to indemnify and hold
TOWER harmless from any claims arising from or as a result of the work

11. That boundary line has since been, and is now, marked by a curb and fence
separating a concrete walkway on the Yacht Club side from a landscaped common area on the
Seapath property.
12. Mr. Rountree was the attorney who represented the developer of "Seapath
Boatominium Marina" and prepared and caused the Declaration of Covenants, Conditions and
Restrictions for Seapath Boatominium, dated November 14, 1977, to be recorded in Book 1118
at Page 596 of the New Hanover County Registry. The Yacht Club was thereafter further
developed and memberships sold pursuant to the provisions of this Declaration, which imposed
an affirmative obligation on the Yacht Club to maintain the Yacht Club Bulkhead.
13. From and after the recordation of the Yacht Club Declaration, the Yacht Club has
been responsible for maintaining the Yacht Club Bulkhead, which provides joint benefit to both
Seapath and the Yacht Club.
14. Prior to January 5, 1987, the Yacht Club Bulkhead had fallen into a state of
disrepair, and the determination was made by the Yacht Club that it was necessary to replace the
Yacht Club Bulkhead with a new, concrete bulkhead structure with a related tieback system,
anchored to deadmen that were already buried on the property of Seapath, running generally in a
horizontal direction with the run of the Yacht Club Bulkhead,but near the building of Seapath.
15. Accordingly, George Rountree, III, as attorney for the Yacht Club, commenced
discussions with Seapath and members of its Board of Directors and its attorney about the joint
benefits to Seapath and the Yacht Club for providing a perpetual system of maintenance for the
bulkhead and the need to therefore gain access to Seapath's property for purposes of doing so,