Pritchard v. Scott, 28

• Citation: 118 S.E.2d 890,254 N.C. 277
• Decision Date: 22 March 1961
• Docket Number: No. 28,28
• Court: United States State Supreme Court of North Carolina
• Parties: Mary M. PRITCHARD v. Willard SCOTT and wife, Edna A. Scott, Ethel S. Cobb, Dorothy Meads James and husband, Reuben C. James, Gertie Scott Halstead and husband, Calvin Halstead, and D. V. Pritchard, Jr. and wife, Dorothy B. Pritchard.

Page 890

118 S.E.2d 890

254 N.C. 277

Mary M. PRITCHARD v. Willard SCOTT and wife, Edna A. Scott, Ethel S. Cobb, Dorothy Meads James and husband, Reuben C. James, Gertie

Scott Halstead and husband, Calvin Halstead, and D. V.

Pritchard, Jr. and wife, Dorothy B. Pritchard.

No. 28

Supreme Court of North Carolina.

March 22, 1961

McMullan, Aydlett & White, Elizabeth City, for plaintiff, appellee.

M. B. Simpson, Jr., Elizabeth City, for defendants Pritchard, appellees.

John H. Hall, Elizabeth City, for defendants, appellants.

BOBBITT, Justice.

Appellants' basic contention is that, whatever rights petitioner may have to condemn a cartway or to establish an appurtenant easement or a way of necessity over the land of Pritchard, Jr., she has no right to condemn a cartway over their lands.

While the judgment does not expressly authorize or direct the jury of view to lay off a cartway over appellants' lands, the clear implication is that they may do so. Is the appeal premature? May an appeal be taken unless and until the jury of view actually locates the cartway, in whole or in part, over appellants' lands?

In Triplett v. Lail, 227 N.C. 274, 41 S.E. 2d 755, and cases cited, it was held that a landowner may appeal to the superior court from an order of the clerk adjudging the right of petitioner to a cartway over his land. The basis of decision is that an order adjudging petitioner's right to a cartway is a final order. The judgment of Judge Bone, in effect, adjudges petitioner's right to a cartway over appellants' lands. In this respect, it is a final judgment.

Appellants' defense has no relation to where (on their lands) the cartway should be located. It challenges petitioner's right to a cartway over any portion of their lands. It extends to the whole cause of action as between petitioner and appellants. In short, it is a plea in bar. Solon Lodge No. 9, etc. v. Ionic Lodge, 245 N.C. 281, 287, 95 S.E.2d 921, and cases cited.

True, appellants may have preserved their exceptions to Judge Bone's judgment, to be brought forward upon appeal in the event of an adverse final judgment locating the cartway, in whole or in part, over their lands. They were not required to do so. They were entitled, if so minded, to except to Judge Bone's judgment and appeal therefrom forthwith. Pritchett v. Greensboro Supply Co., 153 N.C. 344, 69 S.E. 249; Gaither v. Albemarle Hospital, 235 N.C. 431, 442, 70 S.E.2d 680.

'It is a well-settled rule that where, 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 for 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. This doctrine is usually called the rule of visible easements.' 17A Am.Jur., Easements § 41.

Invoking this doctrine, the plaintiffs, in Potter v. Potter, 251 N.C. 760, 112 S.E.2d 569, and cases cited, sought to establish, by civil action, an easement, as appurtenant to their lands, to use a specific roadway, allegedly in existence and in use prior to the severance of title, extending across the defendant's land to a public road. In Potter, Moore, J., sets forth fully the prerequisites for the establishment of such appurtenant easement.

Petitioner does not allege she is legally entitled to access to the Meads Pier Road over the land of Pritchard, Jr. Appellants, by way of affirmative defense, assert petitioner has such right, either as an appurtenant easement over a specific farm road or as a way of necessity. Hence, the burden of proof was on appellants to establish the facts necessary to support their alleged affirmative defense. Wells v. Clayton, 236 N.C. 102, 106, 72 S.E.2d 16, and cases cited.

The court, in the challenged findings of fact, did not attempt to distinguish between an appurtenant (visible) easement and a way of necessity. We are of opinion, and so hold, that there was ample evidence to support a finding that petitioner has no appurtenant easement in a specific roadway leading from her land across the land of Pritchard, Jr., to the Meads Pier Road. Whether, under the undisputed facts, petitioner has a legal right to a way of necessity over the land of Pritchard, Jr., as a means of access to the Meads Pier Road, requires separate and further consideration.

The generally recognized distinction between a way of necessity and an appurtenant easement in a specific roadway arising from pre- existing use is set forth in the following excerpt from 17A Am.Jur., Easements § 58.

'Although a way of necessity is sometimes confused with an easement arising, on severance of title, from a pre-existing use, there is a definite distinction between them, mainly because a way of necessity does not rest on a pre-existing use but on the need for a way across the granted or reserved premises. A way of necessity is an easement arising from an implied grant or implied reservation; it is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessity (sic) for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. Thus, the legal basis of a way of necessity is the presumption of a grant arising from the circumstances of the case. This presumption of a grant, however, is one of fact, and whether a grant should be implied depends upon the terms of the deed and the facts in each particular case.

'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.'

In accord: 28 C.J.S. Easements §§ 35-37; Tiffany, Real Property, Third Edition, Vol. 3, § 793; Thompson, Real Property, Permanent Edition, Vol. 2, § 533; Mordecai's Law Lectures, Second Edition, Vol. 1, p. 466.

The doctrine of ways of necessity as distinguished from the doctrine of visible easements has been set forth in the opinions of this Court. Roper Lumber Co. v. Richmond Cedar Works, 158 N.C. 161, 167, 73 S.E. 902; Carmon v. Dick, 170 N.C. 305, 308 and 309, 87 S.E. 224; Carver v. Leatherwood, 230 N.C. 96, 98, 52 S.E.2d 1; Smith v. Moore, N.C., 118 S.E.2d 436.

'A way of necessity is a temporary right in the sense that it continues only so long as the necessity exists, varies as the necessity varies, and ceases to exist upon the termination of the necessity which gave rise to it.' 17A Am.Jur., Easements § 100. The rule applicable where a general (unlocated) right of way is granted (17A Am.Jur., Easements § 101 et seq.) is applicable to the location of a way of necessity. 'As in the case of easements generally, the rule has been established that the right to select the location of a way of necessity belongs to the owner of the servient estate, provided he exercises the right in a reasonable manner, with regard to the convenience and suitability of the way and to the rights and interests of the owner of the dominant estate.' 17A Am.Jur., Easements § 108.

Where a general (unlocated) right of way was granted, this Court held the rights of the parties in respect of the location thereof 'are the same as when 'a way of necessity' to the designated highway (has) been established in invitum.' Winston Brick Mfg. Co. v. Hodgin, 190 N.C. 582, 585, 130 S.E. 330, 331; Winston Brick Mfg. Co. v. Hodgins, 192 N.C. 577, 579, 135 S.E. 466. In Andrews v. Lovejoy, 247 N.C. 554, 556, 101 S.E.2d 395, 397, Rodman, J., says: 'Cate's deed for plaintiffs' land did not fix the location of the road which was appurtenant to the property conveyed. As the owner of the servient estate he had the right to fix the location of that road. (Citations)'

Although the doctrine of ways of necessity is set forth in opinions of this Court, we have found no decision where a plaintiff, by action in the superior court, has established his right to and the location of a way of necessity. In Carver v. Leatherwood, supra, where the hearing was on demurrer, there is a clear intimation that, in an appropriate factual situation, a plaintiff may do so. Barnhill, J. (later C. J.), cites with approval '17 A.J. 959, sec. 48 et seq.' The discussion in the cited reference is brought forward in substance in the excerpt from 17A Am.Jur., Easements § 58, quoted above.

While the evidence was in conflict as to whether Pritchard, Sr., during his ownership, used a specific roadway for such purpose, all the evidence shows that his only access from the portion of his (cultivated) land devised to petitioner to a public road was over the land devised to Pritchard, Jr., to the Meads Pier Road. It is noted that Pritchard, Sr., did not assert, nor does petitioner, any legal right of access to the Weeksville Road via the Scott lane or other route over any portion of appellants' lands.

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