Green v. Barbee

• Decision Date: 12 June 1953
• Docket Number: No. 755,755
• Citation: 76 S.E.2d 307,46 A.L.R.2d 455,238 N.C. 77
• Court: North Carolina Supreme Court
• Parties: , 46 A.L.R.2d 455 GREEN et ux. v. BARBEE et ux.

Page 307

76 S.E.2d 307

238 N.C. 77, 46 A.L.R.2d 455

GREEN et ux. v. BARBEE et ux.

No. 755

Supreme Court of North Carolina.

June 12, 1953

Jas. R. Patton and C. Horton Poe, Jr., Durham, for plaintiff appellants.

Edwards & Sanders, Durham, for defendant appellees.

DENNY, Justice.

The plaintiffs challenge the correctness of the judgment of the court below on two grounds: (1) They except and assign as error the failure of the court to hold that the alleyway reserved by O. K. Proctor was dedicated by implication upon the conveyance of all the land contiguous to the alley, as shown by the deeds referred to in the record; (2) they except and assign as error the refusal of the court to hold that O. K. Proctor reserved an easement in the 10 by 210 foot alley upon the conveyance of one lot to D. R. Bynum and another to Rebecca Graham Shepherd, in 1895, and that the reserved easement passed to Hob Norwood by deed executed to him by O. K. Proctor dated January 7, 1907, conveying the rear or north lot.

There is no exception to the finding of the court below to the effect that O. K. Proctor, the original grantor, did not convey the three lots described in the deeds referred to in the complaint, pursuant to any general plan of development nor as described or shown on any map of the property as of the date of his respective deeds.

Therefore, it becomes our duty to determine whether the court below, upon a consideration of the pleadings, stipulations, and the findings of fact, reached the correct legal conclusions.

It is the general rule that an easement may be acquired by grant, dedication, or prescription. The plaintiffs do not claim an easement by prescription, but by dedication or implication. It is well settled that a dedication may be by express language, reservation, or by conduct showing an intention to dedicate; such conduct may operate as an express dedication, as where a plat is made showing streets, alleys, or parks, and the land is sold, either by express reference to such plat or by showing that the plat was used and referred to in the negotiations. Milliken v. Denny, 141 N.C. 224, 53 S.E. 867; Moose v. Carson, 104 N.C. 431, 10 S.E. 689, 7 L.R.A. 548; Conrad v. West End Hotel & Land Co., 126 N.C. 776, 36 S.E. 282; Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 47 S.E. 462; Green v. Miller, 161 N.C. 24, 76 S.E. 505, 44 L.R.A., N.S., 231; Haggard v. Mitchell, 180 N.C. 255, 104 S.E. 561; Draper v. Conner & Walters Co., 187 N.C. 18, 121 S.E. 29.

We think it is clear, under our decisions, that O. K. Proctor, in retaining title to the 10-foot alley, in 1895, when he executed deeds to D. R. Bynum and Rebecca Graham Shepherd, did not give these grantees an easement by dedication or otherwise in this unconveyed strip of land. Milliken v. Denny, supra; Carmon v. Dick, 170 N.C. 305, 87 S.E. 224, 225.

In the last cited case it is said: 'Three things are essential to the creation of an easement upon the severance of an estate, upon the ground that the owner before the severance made or used an improvement in one part of the estate for the benefit of another: First, there must be a separation of the title; second, it must appear that 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, third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained. An easement which is apparent and continuous, such as a drain or other artificial water course, a thing which is continuous in its service, and which does not require any active intervention of the owner for its continuance, and can always be seen or known on careful inspection, will pass on the severance of two tenements as appurtenant, without the use of the word 'appurtenances'; but an easement which is not apparent and noncontinuous, such as a right of way, which is enjoyed at intervals, leaving no visible sign, in the interim of its existence, will not pass unless the grantor uses language sufficient to create the easement de novo.'

In the case of Milliken v. Denny, supra [141 N.C. 224, 53 S.E. 868], the precise question raised by the plaintiffs' first assignment of error, was presented. George A. Dick, trustee, and Mrs. Mary E. Dick, the beneficial owner, executed a deed to Mrs. Julia P. Dick for certain lands. The deed called for, 'a 'stone,' thence north 84 degrees and 22 minutes west, 340 feet, along the south side of the 10-foot alley'. There as here, it was contended that the 10-foot alley was dedicated by being left unconveyed when the lot was conveyed to Mrs. Julia P. Dick and another tract of land owned by the grantors lying on the opposite side of the alley was conveyed to a third party, a part of which was afterwards conveyed to plaintiffs. The Court held that the language of Mrs. Dick's deed did not estop her from closing the alley and that whatever right she had in it passed to her grantee, the defendant. Moreover, the Court pointed out that an easement by implication will not arise unless it rests on necessity, not convenience, citing 14 Cyc., 1173. In sustaining the nonsuit entered in the court below, Connor, J., in speaking for the Court, said: 'If Mrs. Dick did not, at the time she executed the deed of August, 1890, either...