Packard v. Smart

• Decision Date: 11 October 1944
• Docket Number: 163.
• Citation: 31 S.E.2d 517,224 N.C. 480
• Parties: PACKARD v. SMART et ux.
• Court: North Carolina Supreme Court

31 S.E.2d 517

224 N.C. 480

PACKARD v. SMART et ux.

No. 163.

Supreme Court of North Carolina

October 11, 1944

This is an action for equitable relief. The complaint, in substance, alleges:

That the plaintiff and defendants are the owners of contiguous lots on the west side of Main Street in the City of Hendersonville, the plaintiff's lot being No. 8 and the defendants' lot being No. 7 of what is known as the Bell and Gregory subdivision. That each lot has a frontage of 20 feet on Main Street and a depth of 103 feet, each bordering on an alley on the rear and that the plaintiff's lot lies south of the defendants' lot. That in the year 1924, the plaintiff and one B. L. Foster entered into a parol agreement to construct an Arcade building on the entire area of both lots to be two stories in height, 40 feet in width, 103 feet in length and to have an 8 foot hallway in the center of the first and second floors, the center of the hallway to run with the boundary line between the two properties. That the structure and arrangement of the rooms, shops, etc., on both sides of the hallways were to be identical in size, form, and arrangement and the first floor was to consist of stores rooms, and shops facing on Main Street or the arcade or hallway; and on the second floor all rooms were to be used either as offices or apartments and were to open into the upstairs hallway. That it was further agreed that the entire width of the hallways of both floors was to be for the use and benefit of both sides of said building and that each of the parties was to have the right to the full use, enjoyment and benefit of that part of each hallway lying on the land of the other.

The complaint further alleges that the plaintiff and the said Foster constructed a building in substantial compliance with said agreement at a cost of more than $50,000 and that the hallways were constructed as agreed upon, and that the front and rear doors of the lower hallway were common doors and were locked and unlocked by common keys, and that the upstairs hallway extended from a common window in the front to a common window in the rear. That the plaintiff and the said Foster, by reason of their mutual promises, made the outlay above mentioned and that said agreement was to the mutual advantage of both in the construction and use of said building.

It is further alleged that the legal effect of said parol agreement was to create in equity reciprocal easements by estoppel in favor of each party against the half of each hallway on the land of the other and that said estoppel would operate so long as the building remained on the property.

It is also alleged that the structure of the building and of the hallways, stores, shops, offices, and apartments were sufficiently open and visible to indicate the existence of reciprocal easements on both halves of said hallways and to put prospective purchasers on notice of the benefits and burdens arising from the joint use of the property.

It is further alleged that the defendants became the owners of the Foster lot in May 1935, by deed from Hendersonville Building & Loan Association, and that said defendants by said deed acquired all the right, title and interest of the said B. L. Foster in said lot, and that by accepting said deed became entitled to the alleged mutual rights and obligated to perform the alleged mutual burdens in the hallways as set forth above.

It is further alleged that in the month of December 1941, the defendants erected solid walls about one inch thick and about seven feet high extending the length of said hallways, just on their side of the division line; that the one on the first floor extends approximately from the center of the common doorway at the front of the building to the common doorway at the rear and that the one on the second floor extends from the approximate center of the common hall window in the front to the approximate center of the common hall window in the rear.

It is further alleged that the erection of said walls by the defendants was unlawful and wrongful, in that it deprives the plaintiff of the full use of the hallways and interferes with the light and ventilation; that they also create an unsightly appearance because of the alleged manner in which they were constructed, and that the plaintiff is being irreparably damaged by reason thereof.

The plaintiff further alleges that the alleged estoppel created as he contends, between him and the said Foster is binding upon the defendants and that the construction of said walls was and is a continuing trespass upon his rights and that he is entitled to a mandatory injunction to compel their removal.

A demurrer interposed in the Court below was overruled. Defendants appeal, assigning error.

R L. Whitmire, of Hendersonville, for plaintiff.

Arthur J. Redden, of Hendersonville, for defendants.

DENNY Justice.

The demurrer admits the material facts alleged in the complaint. Hence, it becomes necessary for us to determine whether or not the construction of the building as described in the complaint, pursuant to a parol agreement, created reciprocal or cross-easements as to each owner, in the hallways of the building. If so, are the defendants, the present owners of the Foster property, bound by said easements?

In the case of Reid v. King, 158 N.C. 85, 73 S.E. 168, 170 the plaintiff had constructed a party wall pursuant to a parol agreement with one Thompson, the owner of an adjoining lot. It was agreed that Thompson should have the right to use the party wall if and when he should construct a building adjacent thereto, at which time he should reimburse Reid for one-half the cost of the wall. It was further agreed that if Thompson should sell the lot without constructing a building thereon, he would inform his grantee of the party wall agreement. Thompson sold his lot to one King and informed him of the terms of his agreement was plaintiff. King erected a building on the lot and used the party wall, but refused to reimburse Reid for one-half of the cost thereof. An action was instituted for the recovery of one-half of the cost of the wall, and the Court held the defendant obligated to pay his pro rata part of the cost-not by reason of the agreement, but from the nature of the relation, or quasi ex contractu; and the Court said: 'The effect of such an agreement is to create cross-easements as to each owner, which binds all persons succeeding to the estates to which the easements are appurtenant, and a purchaser of the estate of the owner so contracting would take it burdened with the liability to pay one-half the cost of the wall, whenever he availed himself of its benefits. [Sharp v. Cheatham], 88 Mo. [498], 57 Am.Rep. [433], supra. The language of courts and of judges has been very uniform and very decided upon this subject, and all agree that whoever purchases lands upon which the owner has imposed an easement of any kind, or created a charge which could be enforced in equity against him, takes the title subject to all easements, equities, and charges, however created, of which he has notice. 88 Mo., 57 Am.Rep., supra. Lord Cottenham said, in Tulk v. Moxhay, 2 Phil. (Eng.Ch. 774). 'If an equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he pur...