Dorman v. Wayah Valley Ranch, Inc. , 1969 N.C. App. LEXIS 1620 ( 1969 )

PARKER, J.

It is a well-recognized general rule of law that where one conveys a part of his estate, he impliedly grants all those apparent or visible easements upon the part retained which were at the time used by the grantor for the benefit of the part conveyed and which are reasonably necessary for use of that part. Barwick v. Rouse, 245 N.C. 391, 95 S.E. 2d 869; Spruill v. Nixon, 238 N.C. 523, 78 S.E. 2d 323; Ferrell v. Trust Co., 221 N.C. 432, 20 S.E. 2d 329; Carmon v. Dick, 170 N.C. 305, 87 S.E. 224. “Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude is in use at the time of severance and is necessary for the reasonable enjoyment of the other part, on a severance of the ownership a grant of the right to continue such use arises by implication of law.” 25 Am. Jur. 2d, Easements and Licenses, § 27, p. 440. See, Annot., 34 A.L.R. 233; 100 A.L.R. 1321; 164 A.L.R. 1001. In Barwick v. Rouse, supra, Winboume, C.J., stated the three essentials to the creation of an easement by implication upon severance of title to be as follows: “(1) A separation of the title; (2) before the separation took place, the use which gives rise to the easement shall have been so long continued and so obvious or manifest as 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.”

When the complaint in the present case is construed liberally, as we are required to do on demurrer, G.S. 1-151; 6 Strong, N. C. Index 2d, Pleadings, § 19, p. 328, plaintiff’s amended complaint does allege sufficient facts to show the existence in this case of the three essentials required for creation of an easement in the roadway over defendant’s land. (1) Plaintiff has alleged that prior to 2 July 1937 the Slagles were owners of a large single tract which embraced the land now owned by plaintiff and the land now owned by defendant, and has alleged separation of title on 2 July 1937 by conveyance from the Slagles to plaintiff’s predecessor in title of the tract of land now owned by plaintiff. (2) Plaintiff has alleged that for many years prior to 2 July 1937 there was a dwelling located on the tract now owned by him and the roadway in question over the property now owned by defendant was the only means of access to •the property now owned by plaintiff. A demurrer admits for the purpose of testing the sufficiency of the pleading the truth of factual averments well stated and relevant inferences of fact reasonably deducible therefrom. 6 Strong, N. C. Index 2d, Pleadings, § 19, p. 331. It can be reasonably inferred from the facts alleged by plaintiff that at the time separation of title occurred on 2 July 1937 and for many years prior thereto the use of the roadway in question, which was the only means of access to the dwelling house, had been so long continued and was so obvious or manifest as to show it was meant to be permanent. (3) Plaintiff has alleged that his land does not abut any public road and that the roadway leading from the Way ah public road over the land of the defendant is the only way plaintiff can gain access to his property and is necessary to the beneficial enjoyment of his property.

Plaintiff has, therefore, alleged sufficient facts to show the three essentials for creation of an easement by implication in the roadway in question upon the severance of title which occurred on 2 July 1937 when the Slagles conveyed the tract now owned by plaintiff, being the dominant tenement with the easement in the roadway appurtenant thereto, to plaintiff’s predecessor in title. Plaintiff also alleged facts sufficient to show that by a mesne conveyance and a devise he obtained title as trustee to such dominant tenement. The easement in the roadway, being appurtenant to the granted land, passed by each conveyance to subsequent grantees thereof. 25 Am. Jur. 2d, Easements and Licenses, § 95, p. 501.

Plaintiff has stated a good cause of action. Accordingly, the judgment appealed from is

Reversed.

BeocK and Beitt, JJ., concur.