Joines v. Herman, 8724DC997

• Decision Date: 05 April 1988
• Docket Number: No. 8724DC997,8724DC997
• Citation: 366 S.E.2d 606,89 N.C.App. 507
• Court: North Carolina Court of Appeals
• Parties: Edgar JOINES and wife, Elizabeth Joines v. John R. HERMAN and wife, Mildred Herman.

Page 606

366 S.E.2d 606

89 N.C.App. 507

Edgar JOINES and wife, Elizabeth Joines v. John R. HERMAN and wife, Mildred Herman.

No. 8724DC997.

Court of Appeals of North Carolina.

April 5, 1988.

Deal & Smith by James M. Deal, Jr., Boone, for plaintiffs-appellants.

Clement, Miller & Whittle by Paul E. Miller, Jr., Boone, for defendants-appellees.

COZORT, Judge.

Plaintiffs filed this action to establish an easement across defendants' land. From the trial court's judgment concluding that no easement existed, plaintiffs appeal. We affirm.

On 6 August 1960, plaintiffs purchased a 37-acre tract of land in Watauga County. This tract was surrounded by land owned by defendants, and its only means of access was by an old farm road across defendants' land from U.S. Highway No. 421. After purchasing the property, plaintiffs requested defendants' permission to use this road to reach a farmhouse located on the 37-acre tract. Defendants gave them oral permission to use the road and thereafter also gave them permission to gravel and pave a portion of the road, to keep the gates located across the road open, and to increase the intensity of their use of the road. On 7 July 1983, defendants revoked, in writing, their oral permission for plaintiffs to use their road.

In January 1965, plaintiffs purchased from defendants a 10 7/8-acre tract of land adjacent to the 37-acre tract they already owned. This tract did not join a public road, but it could be reached via the same road used to reach the 37-acre tract. In 1970, plaintiffs built an A-frame house on the 10 7/8-acre tract and in 1971 acquired from Ralph Greene and his wife a deeded easement from the 10 7/8-acre tract to Lynhill Drive, a state road. An 8-foot wide farm road also existed across the 10 7/8-acre tract from the A-frame house to the farmhouse on the 37-acre tract. This farm road has been used by tractors, pickup trucks and trucks with trailers.

On 31 October 1985, plaintiffs instituted the action upon which this appeal is based. Plaintiffs requested an easement over defendants' land in order to regain access to the 10 7/8-acre tract from U.S. Highway No. 421. The trial court found that no easement existed across defendants' land and charged plaintiffs with the costs of the action, including defendants' attorney's fees. From this judgment, plaintiffs appeal.

Plaintiffs first argue that the trial court erred in concluding that the easement obtained across the 10 7/8-acre tract was no longer necessary and that it terminated in 1971. We disagree.

"A way of necessity arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is entirely surrounded by the land from which it is severed or by this land and the land of strangers. It is a universally established principle that where a tract of land is conveyed which is separated from the highway by other lands of the grantor or surrounded by his lands or by his and those of third persons, there arises, by implication, in favor of the grantee, a way of necessity across the premises of the grantor to the highway."

Pritchard v. Scott, 254 N.C. 277, 282, 118 S.E.2d 890, 894 (1961), quoting 17A Am.Jur. Easements § 58. " 'A way of necessity is a temporary right in the sense that it continues only so long as the necessity exists ... and ceases to exist upon the termination of the necessity which gave rise to it.' " Id. at 282-83, 118 S.E.2d at 895, quoting 17A Am.Jur. Easements § 100.

Although an easement by necessity existed over the 10 7/8-acre tract when plaintiffs purchased it from defendants in 1965, the necessity ended in 1971 when plaintiffs obtained a deeded easement to the 10 7/8-acre tract from the Greenes. The trial court correctly held that the easement was no longer necessary for the use and enjoyment of plaintiffs' land.

Plaintiffs argue that the use of defendants' land is still necessary even though they acquired an additional means of access to the 10 7/8-acre tract. Plaintiffs acquired a deeded easement to the eastern edge of the 10 7/8-acre tract where their A-frame house is located. ...