Andrews v. Lovejoy , 247 N.C. 554 ( 1958 )

101 S.E.2d 395 (1958) 247 N.C. 554

Troy Monroe ANDREWS, Nita Andrews and Jean Chandler Andrews, Plaintiffs,
v.
Mary J. LOVEJOY and husband, A. R. Lovejoy, Defendants, and Josie Cate (Widow), Robert J. Ayers and wife, Lucille O. Ayers, Additional Defendants.

No. 747.

Supreme Court of North Carolina.

January 10, 1958.

William S. Stewart, Chapel Hill, for plaintiffs.

Bonner D. Sawyer, Hillsboro, for defendants Mary J. Lovejoy and husband, A. R. Lovejoy.

RODMAN, Justice.

Plaintiffs' appeal presents for determination the correctness of the judgment directing the assessment of damages. Plaintiffs disavow any intent to obtain a cartway under the provisions of Art. 4, c. 136, of the General Statutes. They seek merely an adjudication of presently existing property rights.

Plaintiffs allege and defendants admit that their titles trace to a common source. The land presently owned by plaintiffs and defendants was, prior to 15 September 1927, owned by T. L. Cate as a single tract. His land was bounded on the east by the Chapel Hill-Hillsboro Highway and on the north by the land of Josie Cate. In September 1927 he sold to Gary Hogan and others, by deed duly recorded in May 1928, twenty acres from the western part of his land. Following the specific description of the twenty acres then conveyed is this language: "And granting further to the parties of the second part, their heirs and assigns, the right of ingress and egress over a road from the East edge of the property herein conveyed to the Chapel Hill-Hillsboro Highway." Plaintiffs are now the owners of that twenty acres including such rights as the quoted paragraph conveys.

In April 1942 Cate contracted to convey the land between the highway and plaintiffs' property to W. E. Barker. Before the conveyance was consummated Cate died; his administrator and widow, complying with the contract, conveyed the property to W. E. Barker and wife. This deed, after specifically describing the land conveyed, contains this provision: "Reserving, however, along the northern boundary of the property herein conveyed a right of way for the purpose of providing an outlet for the 20-acre tract of land heretofore conveyed by Thomas L. Cate and wife to Gary Hogan, et al, by deed dated September 15, 1927, recorded in office of the Register of Deeds of Orange County in Book 90, at page 192, and granting to the parties of the second part the right to use the said road or right of way jointly with the owners of the said twenty acre tract." Defendants acquired from Barker, subject to the reservation quoted above.

The evidence shows that many years age there was a road along the southern line of the Josie Cate land, extending from the Chapel Hill-Hillsboro Highway westwardly to a schoolhouse near plaintiffs' northwest corner. The Josie Cate title is entirely distinct from the title to the T. L. Cate lands presently owned by plaintiffs and defendants. The deed to Mrs. Josie Cate contains a reservation for a road twenty feet wide along her southern line for the benefit of the property owners claiming under her ancestor in title. The old school has been closed for approximately twenty years and the road, except for occasional lumber operations, has not been used since the closing of the school. In places this road extended over on the property of defendants some two, three, or four feet in the first 400 feet back from the Chapel Hill Highway. Beyond that point it is presently impossible to determine where the old road was located.

The easement granted plaintiffs' ancestor in title is appurtenant to the land sold by T. L. Cate and is an estate or interest in land. It is created by written instrument under seal, duly recorded. The deed from Cate to Hogan for the land presently owned by plaintiffs made the land conveyed the dominant estate and the land retained by Cate the servient estate.

Cate's deed for plaintiffs' land did not fix the location of the road which was appurtenant to the property conveyed. As the owner of the servient estate he had the right to fix the location of that road. Cooke v. Wake Electric Membership Corp., 245 N.C. 453, 96 S.E.2d 351; Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541; Bender v. American Telephone & Telegraph Co., 201 N.C. 355, 160 S.E. 352; White v. Coghill, 201 N.C. 421, 160 S.E. 472; Winston Brick Mfg. Co. v. Hodgins, 192 N.C. 577, 135 S.E. 466; Id., 190 N.C. 582, 130 S.E. 330; Ingelson v. Olson, 199 Minn. 422, 272 N.W. 270, 110 A.L.R. 167, and annotations; 17A Am.Jur. 711; 28 C.J.S. Easements § 81, p. 761.

Cate, in 1942, when he conveyed the servient estate, exercised his right to locate plaintiffs' easement. It is expressly provided in the deed for defendants' land that the right of way should be along the northern boundary of the servient estate. Plaintiffs accept that location and insist on their property rights. Plaintiffs do not seek a cartway or to have an easement implied from a sale of the property by Cate. They limit their claim to the easement expressly granted. Having bought and paid for the easement, they cannot now be compelled to pay for it a second time. There was error in remanding the cause to the clerk for the appointment of commissioners to assess damages.

Defendants assign two errors: the first, to the denial of the demand for jury trial on issues tendered.

Defendants excepted to parts of four findings of fact and tendered issues relating to these exceptions. The steps requisite to a jury trial when a compulsory reference has been ordered are enumerated with copious citations of authorities in Bartlett v. Hopkins, 235 N.C. 165, 69 S.E.2d 236. Some, if not all of defendants' exceptions fail to meet the third condition there enumerated. That defendants' land lies between the highway and plaintiffs' land is shown by the deeds attached to the complaint, admitted in the answer as sources of title under which the parties claim, and by the testimony in the case. The court is not required to submit an issue to establish admitted facts.

Likewise the existence of a road on the property of an adjoining landowner which plaintiffs might be permitted to use could not deprive plaintiffs of the property rights they had bought and paid for. The deed from Cate to Hogan granted a right of ingress and egress. He could only grant that right with respect to his property. He could not grant a right to use the property of another. The existence or nonexistence of such a road was not an issuable fact in this case.

Defendants' first exception fails to comply with the rules. It cannot be sustained. Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467.

Defendants' second assignment of error is to the judgment. No error appears on the face of the record. The facts found support the judgment, insofar as it affirms the referee's conclusions. Defendants' second exception cannot be sustained.

On plaintiffs' appeal: Error and Remanded for Proper Judgment.

On defendants' appeal: Affirmed.