Wilson v. Smith ( 1973 )

197 S.E.2d 23 (1973) 18 N.C. App. 414

John G. WILSON and wife, Peggy S. Wilson
v.
Cora Edith Cavin SMITH et al.

No. 7319SC208.

Court of Appeals of North Carolina.

June 13, 1973.

Woodson, Hudson, Busby & Sayers by Donald D. Sayers, Salisbury, for plaintiff appellees.

Childers & Fowler by Henry L. Fowler, Jr., Mount Holly, for defendant appellants.

HEDRICK, Judge.

The exception to the "interim judgment" presents the question of whether the facts found by Judge Johnston support the conclusion that plaintiffs are entitled to an easement by way of necessity across the land of defendants.

Since defendants had an option whether to appeal from the interim judgment or from the judgment locating the easement across their property, Pritchard v. Scott, 254 N.C. 277, 118 S.E.2d 890 (1961), we do not think their failure to perfect the appeal noted vitiated their exceptions to the interim judgment.

A way of necessity arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over the land retained by the grantor or land owned by a stranger. Oliver v. Ernul, 277 N.C. 591, 178 S.E.2d 393 (1971). An implied easement of necessity arises only by implication in favor of a grantee and his privies as against a grantor and his privies. Lumber Co. v. Cedar Works, 158 N.C. 161, 73 S.E. 902 (1912).

"[T]o establish the right to use the way of necessity, it is not necessary to show absolute necessity. It is sufficient to show such physical conditions and such use as would reasonably lead one to believe that the grantor intended the grantee should have the right of access." Oliver v. Ernul, supra, 277 N.C. at 599, 178 S.E.2d at 397.

In Pritchard v. Scott, supra, 254 N.C. at 282, 118 S.E.2d at 894, the North Carolina Supreme Court quoting from 17A Am.Jur., Easements § 58, stated:

"A way of necessity is an easement arising from an implied grant or implied reservation; it is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessity (sic) for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. Thus, the legal basis of a way of necessity is the presumption of a grant arising from the circumstances of the case. This presumption of a grant, however, is one of fact, and whether a grant should be implied depends upon the terms of the deed and the facts in each particular case."

The facts found by Judge Johnston clearly show that plaintiffs acquired their land from defendant Smith, that defendants Christy acquired their land by mesne conveyance from defendant Smith, and that the land retained by defendant Smith abuts a public highway. The Christys' land lies between that of plaintiffs and Smith. Plaintiffs have no legally enforceable right-of-way to the public highway. While the facts indicate that plaintiffs have a permissive right-of-way to the public highway across the lands of strangers to their title, they are unable to obtain a loan to secure a deed of trust upon their land to finance their home built thereon and, therefore, do not have full beneficial use of their property.

We think the facts found support the conclusion that plaintiffs are entitled to an easement by way of necessity across the lands of defendants to the public road. The exceptions to the interim judgment are not sustained. The judgment appealed from is

Affirmed.

BROCK, J., concurs.

VAUGHN, J., dissents.