Mountain View, Inc. v. Bryson , 77 N.C. App. 837 ( 1985 )

336 S.E.2d 432 (1985)

MOUNTAIN VIEW, INC.
v.
G. Frank BRYSON.

No. 8530SC499.

Court of Appeals of North Carolina.

November 19, 1985.

J. Edwin Henson, Cashiers, for plaintiff, appellant.

Holt, Haire & Bridgers, P.A. by Ben Oshel Bridgers, Sylva, for defendant, appellee.

HEDRICK, Chief Judge.

There are three requirements for creation of an implied easement by necessity upon severance of title: 1) conveyance of a portion of a tract of land by the owner of the entire tract; 2) before the conveyance takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest to show that it was meant to be permanent; and 3) the easement shall be necessary to the beneficial enjoyment of the land granted or retained. Potter v. Potter, 251 N.C. 760, 764, 112 S.E.2d 569, 572 (1960). Mr. Bryson admits in his brief that these three requirements are met. He argues that no implied easement arises in this case because of the express oral agreement between himself and Mr. Henson that no easement would be created upon conveyance. We do not agree.

Easements are interests in land and fall within the scope of G.S. 22-2, the North Carolina Statute of Frauds. Prentice v. Roberts, 32 N.C.App. 379, 232 S.E.2d 286, disc. rev. denied, 292 N.C. 730, 235 S.E.2d 784 (1977). Oral agreements relating to an easement reached before the creation of the easement are not directly enforceable unless they are in writing. Shepherd v. Duke Power Co., 140 F. Supp. 27 (1956). In Shepherd the plaintiff attempted to prove an agreement made before the conveyance of an easement which restricted the scope of the easement. The federal court, applying North Carolina Law, held that the statute of frauds barred plaintiff's evidence. We adopt and uphold the federal court's interpretation of North Carolina Law. We see no reason why the result in the present case should be different merely because the easement before us was created by implication rather than in writing. See Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173 (1942).

We therefore hold that an agreement disclaiming an easement by necessity is within the purview of the statute of frauds. Such an agreement is not directly enforceable unless in writing and duly and properly recorded in the county where the land affected lies.

Summary judgment for defendant is therefore reversed.

Reversed.

WHICHARD and JOHNSON, JJ., concur.