Potter v. Potter, 606

• Decision Date: 29 January 1960
• Docket Number: No. 606,606
• Citation: 251 N.C. 760,112 S.E.2d 569
• Parties: J. B. POTTER and wife, Fannie Lewis Potter, v. Herbert POTTER.
• Court: North Carolina Supreme Court

Page 569

112 S.E.2d 569

251 N.C. 760

J. B. POTTER and wife, Fannie Lewis Potter, v. Herbert POTTER.

No. 606

Supreme Court of North Carolina.

Jan. 29, 1960

E. J. Prevatte and Herring, Walton & Parker, Southport, for plaintiffs-appellants.

Kirby Sullivan, Southport, for defendant-appellee.

MOORE, Justice.

The sole question for decision is whether or not the court erred in granting defendant's motion for nonsuit.

Plaintiffs allege ownership of a private easement of cartway appurtenant to their land over the land of defendant to the public highway by reason of implied grant and prescription. They seek to enjoin defendant from obstructing the cartway.

We assume that plaintiffs do not rely on adverse user for twenty years under claim of right as a basis for relief since there is no discussion, argument or citation of authorities with respect to prescription in their brief. They rely solely upon the principle of implied grant.

It is settled law in this jurisdiction that where an owner of a tract of land conveys a portion thereof, the grantee takes the portion conveyed with the benefits or burdens of all those apparent and visible easements which appear at the time of the conveyance to belong to it, as between it and the property which the grantor retains. Bradley v. Bradley, 245 N.C. 483, 96 S.E.2d 417; Barwick v. Rouse, 245 N.C. 391, 95 S.E.2d 869; Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323; Carver v. Leatherwood, 230 N.C. 96, 52 S.E.2d 1; Packard v. Smart, 224 N.C. 480, 31 S.E.2d 517, 155 A.L.R. 536; Carmon v. Dick, 170 N.C. 305, 87 S.E. 224. Stated another way: '* * * (W)here, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude, at the time of the severance, is in use and is reasonably necessary to the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law * * *. The underlying basis of the rule is that unless the contrary is provided, all privileges and appurtenances as are obviously incident and necessary to the fair enjoyment of the property granted substantially in the condition in which it is enjoyed by the grantor are included in the grant.' Barwick v. Rouse, supra [245 N.C. 391, 95 S.E.2d 869], quoting from 17 Am.Jur., 945, Easements Implied, section 33.

'No easement exists so long as there is a unity of ownership, because the owner of the whole may at any time rearrange the qualities of the several parts.' Carmon v. Dick, supra [170 N.C. 305, 87 S.E. 225]. 'There are three essentials to the creation of an easement by implication of law upon severance of title. They are: (1) A separation of the title; (2) before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest to show that it was meant to be permanent; and (3) the easement shall be necessary to the beneficial enjoyment of the land granted or retained. ' Separation of title implies, of course, unity of ownership at some former time as the foundation of the right. The easement derives its origin from a grant and cannot legally exist where neither the party claiming it nor the owner of the land over which it is claimed, nor anyone under whom they or either of them claim, was ever seized of both tracts of land. This unity of title must have amounted to absolute ownership of both the quasi-dominant and quasi-servient tenements.' ' Bradley v. Bradley, supra [245 N.C. 483, 96 S.E.2d 420], quoting in part from 17 Am.Jur., Easements, section 34, page 948. 'The greater weight of the authorities seem to hold that no easement or quasi-easement will be created by implication, unless the easement be one of strict necessity, but we think that means only that the easement should be reasonably necessary to the just enjoyment of the properties affected thereby * * *.' Packard v. Smart, supra, 248 N.C. at page 484, 31 S.E.2d at page 519.

Defendant contends that there is no showing in the case at bar that the cartway existed at the time the lands of plaintiffs and defendant were owned as a unit by F. M. Galloway. Indeed, the evidence does not show that the cartway existed prior to 1901. Galloway conveyed the entire tract to W. H. C. and J. C. Potter, as tenants in common in 1897. However, there is evidence of continuous use of the cartway from 1901 until the Potters divided the tract between them and from that time until it was obstructed in 1956. The question arises: Was the ownership by W. H. C. and J. C. Potter as tenants in common such unity of title and the division of the land between them such severance as to support an implied grant of easement?

No case in this jurisdiction has come to our attention which supplies the answer. It has been held in other jurisdictions that a sale of both parts of an estate at the same time to different purchasers gives rise to an easement by implication. Cassidy v. Cassidy, 1923, 309 I11. 465, 141 N.E. 140; Baker v. Rice, 1897, 56 Ohio St. 463, 47 N.E. 653. And the weight of authority here and in England is that on a partition or division of property between tenants in common, a right to use a visible way will pass by implication. Jones v. Bethel, 1925, 20 Ohio App. 442, 152 N.E. 734; O'Daniel v. Baxter, 1901, 112 Ky. 334, 65 S.W. 805; Leathers v. Craig, Tex.Civ.App.1921, 228 S.W. 995; Kaiser v. Somers, 1923, 80 Ind. App. 89, 138 N.E. 20. See also Annotations, 164 A.L.R., Visible Easement, section VI, pp. 1008-1009, and 34 A.L.R., Visible Easement, section VI, pp. 246-247, for discussion and citation of cases.

Jones v. Bethel, supra [20 Ohio App. 442, 152 N.E. 735], presents a factual situation almost identical with the case sub judice. The owner of a tract of land conveyed it to tenants in common who made use of a private roadway thereon leading to a public road which crossed one end of the property. The cotenants divided the land so that access to one part was only by way of the private road. Plaintiff and defendant therein acquired title by mesne conveyances from the original cotenants. Defendant obstructed the private roadway and cut off plaintiff's access to the highway. The Court said: '* * * the situation of the parties at the time this land was aparted constitutes the operative facts to support the claim of a grant by implication. * * * Furthermore, the fact that the title to this land as a separate tract was made by partition is recognized by authorities as affording a stronger presumption of an implied grant than one which might arise under the facts in Baker v. Rice, s...