Patrick v. Jefferson Standard Life Ins. Co.

• Decision Date: 11 December 1918
• Docket Number: 386.
• Parties: PATRICK v. JEFFERSON STANDARD LIFE INS. CO. ET AL.
• Court: North Carolina Supreme Court

97 S.E. 657

176 N.C. 660

PATRICK v. JEFFERSON STANDARD LIFE INS. CO. ET AL.

No. 386.

Supreme Court of North Carolina

December 11, 1918

Appeal from Superior Court, Guilford County; Adams, Judge.

Suit by Mrs. Laura A. Patrick against the Jefferson Standard Life Insurance Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

A "merger" of an easement occurs when the owner of one of the estates, dominant or servient, acquires the other.

The suit was brought to quiet the title to a certain parcel of land in the city of Greensboro, west of and adjoining the courthouse lot, or square, being 4 feet wide and extending from West Market (formerly Main) street 87 feet and 10 inches north from said street, it being the western half of an alley which lay between the courthouse square (sold by Solomon Hopkins to the county) and the brick building known as the Patrick or Porter & Gorrell storehouse, the other, or eastern, half of the alley being part of the said courthouse lot, the middle line of the alley being identical with the western line of the original courthouse lot. Plaintiff claims that 4-foot strip, or western half of this 8-foot alley, as devisee, under the will of her husband, Thomas J. Patrick who acquired title to the front portion of the lot, next west of this alley, from Dr. I. J. M. Lindsay, and conveyed it to Porter & Gorrell, who conveyed it to the county, as far back as 1872 or 1873.

The deed from Patrick to Porter & Gorrell, dated July 13, 1862 contained this provision, leaving the western half of the alley, or the 4-foot strip along the eastern side of the storehouse, "in the seizure of said T. J. Patrick," which he covenanted, for himself and his heirs and assigns should continually be left open as a passway for himself and the said Porter & Gorrell, and should never be obstructed by him or them or any other person. The lot in the rear or north of the one just described was also owned by Patrick, and this he conveyed to W. A. Caldwell, who, in his turn, conveyed it to the county of Guilford. This lot also fronted on the 8-foot alley, and in the deed of Caldwell to the county the easement in the alley is mentioned. The county also purchased from Ralph Gorrell the lot north of and adjoining the last-named, or Caldwell, lot. The county also purchased lots from Hinton and Staples north of and adjoining the Gorrell lot and the court house square, on which the courthouse stood. The county by its several purchases many years ago between 1870 and 1875, acquired title to all of the land except West Market street, which surrounded the parcel of land or 4-foot strip now in controversy.

The county of Guilford was made a party defendant, upon its own request, in order to protect its covenants of title in the deed to its codefendant, the Jefferson Standard Life Insurance Company, and any other interest it has in the cause.

The court charged the jury fully upon all the questions raised in the case, as far as it was necessary to do so, and especially upon the evidence as to the adverse possession of the defendants, and its effect upon the issues.

The jury returned the following verdict:

"(1) Does the defendant the Jefferson Standard Life Insurance Company claim to be the

owner in fee simple of the land described in the complaint and in controversy under and by virtue of the deeds executed to it and the mesne conveyance for said property? Answer: Yes.

(2) Have the defendant and those under whom it claims been in the open, notorious, adverse, and continuous possession of the land described in the complaint and in controversy for a period of 20 years before the commencement of this action up to known and visible metes and bounds? Answer: Yes.

(3) Is the plaintiff the owner in fee of the land described in the complaint and in controversy? Answer: No."

Judgment was entered upon the verdict for defendants, and plaintiff appealed.

Alfred S. Wyllie and R. C. Strudwick, both of Greensboro, for appellant.

John S. Wilson and Brooks, Sapp & Kelly, of Greensboro, for appellees.

WALKER, J. (after stating the facts as above).

The plaintiff claims that, by reason of the words of reservation in the deed of her husband, T. J. Patrick, to Porter & Gorrell, and the will of her husband, which devises all his real estate to her, she is now the owner of the 4-foot strip of land before described, while defendants claim that no such reservation was intended by Thos. J. Patrick, his only object being to afford him and Porter & Gorrell an outlet to West Market street, and that, when there was no longer any necessity for this use of the alleyway, it passed by clear intendment of Patrick to the county, at the time it acquired the surrounding land, and besides that, if the plaintiff, or her husband, had any legal right to the strip, it has been lost by adverse possession or adverse user for more than 20 years. It also contends that, as the lot conveyed to Porter & Gorrell by Patrick was next to the alley, one-half of which the latter owned at the time of the conveyance, the eastern boundary of the grantees extended to the middle of the alley, under the description in the deed, which would take in the 4-foot strip of land now in dispute, subject to the easement or right of way over it of Porter & Gorrell, and Patrick himself, who were the holders of the dominant tenements. And it is further contended by defendants that, considering the deeds in evidence and the undisputed facts, Patrick never intended to reserve the legal title to the 4-foot strip, but merely to create an appurtenant easement in favor of the adjoining tenements, and that, if he intended to retain the title, it was only to remain in him so long as was necessary to protect the easement, and when this necessity ceased, the strip should become a part of the lots sold and which bordered upon it, each receiving its pro rata share or the part of the alley in front of it. But, in this connection, they do not admit that the four-foot strip was ever intended to be severed from the Porter & Gorrell lot, but that the effect of the deeds was to reserve to T. J. Patrick such a control over the 4-foot strip as would enable him to create and preserve an easement or right of way over it for the benefit and more convenient enjoyment of the Porter & Gorrell lot and his own lot in the rear, or north of it, which he afterwards sold to W. A. Caldwell, who still later conveyed it to the county.

The judge, by consent, was given the right to answer the third issue after the verdict upon the other issues was returned by the jury, and when the verdict was announced, he caused the following entry to be made:

"Apart from the answer to the second issue I am of opinion that when the county of Guilford acquired title to the lots there was a merger of the easements, and if an easement was revived when the county conveyed to the Jefferson Standard Life Insurance Company, it was revived only for the benefit of the owners of the fee, neither of whom seek to take advantage of it. There are other reasons that need not be stated. I answer the third issue 'No.' "

We are of the opinion, after examining the record with care that there was evidence fit to be submitted to the jury upon the question of adverse possession, within the established rule as to what will constitute such a possession. The evidence tends to show that the space between the courthouse and Barker & Sockwell's store has been a part of the courthouse square since between 1872 and 1875, when the county bought the property for the purpose of having a square upon which to build the new courthouse, and that this space was ploughed up and sown in grass, and that trees were planted there, and a wire fence built across the space at different times to keep intruders out. Rosebushes were set out, and the property was considered as belonging to the county, and so used.

The witnesses W. H. Green, W. G. Balsley, and W. H. Ragan testified that since the year 1874 or 1875 the open space west of the course, which includes the disputed strip of land, has been a part of the courthouse square, and so used by the county and the public, and W. H. Ragan further testified:

"From the time I have known this property, either officially or unofficially, there has never been an alleyway or walkway leading from Market street, running parallel with the courthouse going north and south next to the building until the cement walkway was put down. Think the cement walkway was put down in 1900. It runs from the west side of the courthouse over to the walk running the other way along by Barker & Sockwell's place. Then there is another cement walk. Neither one of these walks run immediately along the courthouse running north and south. One runs from the courthouse west, and the other straight across, going next to Barker & Sockwell's building. They meet in front of the office building.

At no time when I was a member of the board or its chairman did the plaintiff in this case, or testator, Mr. T. J. Patrick, ever make any claim to any portion of the property, or ask to pass over it."

The witness W. H. Ragan was for many years a member of the board of commissioners of the county, and its chairman for seven years.

The plaintiff's witness, David Scott, testified:

"The fence extended entirely up and covered the space to the courthouse building. It went within a few feet of Barker & Sockwell's store. It included Patrick's drug store. I don't know just how close it went to Barker & Sockwell's store. It included all the open space. After the fence went down this property was plowed up and sown in grass several times. After the first fence rotted down, there were small posts put up and wire stretched across that in the same territory

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