Bradley v. Bradley , 245 N.C. 483 ( 1957 )

96 S.E.2d 417 (1957) 245 N.C. 483

Thomas H. BRADLEY
v.
Georgia BRADLEY.

No. 740.

Supreme Court of North Carolina.

February 1, 1957.

Bonner D. Sawyer, Hillsboro, and W. R. Dalton, Jr., Burlington, for appellee.

Long, Ridge, Harris & Walker, Graham, for appellant.

DENNY, Justice.

We shall first consider defendant's assignment of error No. 8, based on exceptions to the refusal of the court below to allow her motion for judgment as of nonsuit interposed at the conclusion of plaintiff's evidence and renewed at the close of all the evidence.

The plaintiff's evidence in the trial below was for the most part of the character usually offered to establish an easement by prescription. However, having failed to negative permissive user, on a previous hearing for injunctive relief, based on allegations in his original complaint to the effect that the plaintiff and his predecessors in title had used the road in controversy for more than fifty years, which use had been open, adverse, notorious, continuous and uninterrupted, except when the defendant or her agent or employees blocked the road by cutting trees across it, he amended his complaint and alleged an easement by implication.

The plaintiff concedes he is not entitled to an easement by necessity. In fact, the record discloses that the plaintiff may reach the Whitted land by traveling a few hundred yards south from his home on the Mebane-Carr Road and then west over an improved highway which runs through the defendant's land. This public road constitutes the entire southern boundary of the Whitted land. The plaintiff may also reach the Whitted land by traveling over the Mebane-Carr Road in a northerly direction from his home to a public road which runs from the Mebane-Carr Road in a northwesterly direction along the Mt. Zion Christian Church lot, then over a public road which runs through the church lot, across the Richmond tract to the Whitted land.

The law relating to the creation of easements by implication is well established in this and other jurisdictions. In 17 Am. Jur., Easements, section 33, page 945 et seq., it is said: "It is a well-settled rule that 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, at the time of the severance, is in use and is reasonably necessary for the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law. * * * The underlying basis of the rule is that unless the contrary is provided, all privileges and appurtenances as are obviously incident and necessary to the fair enjoyment of the property granted substantially in the condition in which it is enjoyed by the grantor are included in the grant."

There are three essentials to the creation of an easement by implication of law upon severance of title. They are: (1) A separation of the title; (2) before the separation 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. "Separation of title implies, of course, unity of ownership at some former time as the foundation of the right. The easement derives its origin from a grant and cannot legally exist where neither the party claiming it nor the owner of the land over which it is claimed, nor anyone under whom they or either of them claim, was ever seized of both tracts of land. This unity of title must have amounted to absolute ownership of both the quasi-dominant and quasi-servient tenements." 17 Am. Jur., Easements, section 34, page 948; Barwick v. Rouse, N.C., 95 S.E.2d 869; Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323; Green v. Barbee, 238 N.C. 77, 76 S.E.2d 307, 46 A.L.R. 2d 455; Ferrell v. Durham Bank & Trust Co., 221 N.C. 432, 20 S.E.2d 329; Carmon v. Dick, 170 N.C. 305, 87 S.E. 224.

In the instant case, when we apply the law to the facts, it is clear that before the plaintiff would be entitled to an easement by implication over the premises of the defendant, it would be necessary for him to establish by the greater weight of the evidence that such an easement is necessary to the beneficial enjoyment of the land granted to him by the defendant. There is no evidence on this record to support the view that an easement across the lands of the defendant is necessary or would add to the beneficial enjoyment of the land conveyed to the plaintiff by the defendant. Green v. Barbee, supra; Milliken v. Denny, 141 N.C. 224, 53 S.E. 867. The only possible beneficial use that the plaintiff could derive from such an easement would be to give him a shorter and more convenient way to the Whitted land. "The grant of an easement cannot be implied from convenience, but is only implied where it is necessary to the full enjoyment of the thing granted." Thompson on Real Property, Permanent Edition, Volume 1, section 337, page 544.

An easement by implication of law extends only to the land granted or that retained, and not to land acquired from other sources. And there is no contention on the part of the plaintiff that there has ever been unity of title of the G. Bradley farm and the Whitted land. Moreover, aside from the evidence with respect to an easement by implication, the plaintiff's own testimony is sufficient to sustain the view that his use of the road across the defendant's land since 1940 has been permissive.

The facts here are distinguishable from those involved in the case of Packard v. Smart, 224 N.C. 480, 31 S.E.2d 517, 155 A.L.R. 536, and other cases cited and relied upon by the plaintiff.

The defendant's motion for judgment as of nonsuit should have been allowed. The judgment of the court below is reversed.

Reversed.

JOHNSON, J., not sitting.