Walker v. Phelps

• Decision Date: 02 March 1932
• Docket Number: No. 51.,51.
• Parties: WALKER et al. v. PHELPS et al.
• Court: North Carolina Supreme Court

162 S.E. 727

202 N.C. 344

WALKER et al.

v.PHELPS et al.

No. 51.

Supreme Court of North Carolina.

March 2, 1932.

Appeal from Superior Court, Washington County; Grady, Judge.

Action under the Uniform Declaratory Judgment Act, Pub. Laws 1931, c. 102, by H. G. Walker and others against W. T. Phelps and another. From the declaratory judgment rendered, defendants appeal.

Affirmed.

This action was begun on August 24, 1931, by a petition filed by the plaintiffs in the superior court of Washington county, in accordance with the provisions of chapter 102, Public Laws of North Carolina, Session 1931, known as the Uniform Declaratory Judgment Act. The relief prayed for by the plaintiffs is a declaratory judgment determining their rights on the facts alleged in their petition.

In response to citations duly served on them, the defendants filed answers to the petition. No issue of fact was raised by said answers; only issues of law were raised by the pleadings.

It appeared from the pleadings that there was a controversy between the parties to the action with respect to the rights of the plain tiffs under a deed executed by the defendant Virginia-Carolina Joint Stock Land Bank by which the said bank conveyed the land described therein to the plaintiffs. This deed is dated April 1, 1930. It was duly recorded in the office of the register of deeds of Washington county on July 24, 1930. The tract of land conveyed by this deed contains 600 acres, more or less, and is a part of the W. T. Alexander farm, which was owned by the defendant Virginia-Carolina Joint Stock Land Bank. This farm contained 1, 200 acres more or less.

On January 27, 1930, the defendant Virginia-Carolina Joint Stock Land Bank entered into a contract in writing with its co-defendant, W. T. Phelps, by which it agreed to sell and convey a part of said Alexander farm, containing 600 acres, more or less, to the said defendant, upon the terms and conditions set out in said contract. This contract was not recorded at the date of the deed from the said bank conveying to the plaintiffs the remaining part of said Alexander farm.

The W. T. Alexander farm lies between Lake Phelps and the Scuppernong river, in Washington county. It is drained from the lake to the river by the Mountain Canal. This canal traverses said farm, practically dividing it into two parts. Lateral ditches and drainways have been constructed by which water is carried from the farm into the canal, and thence into Scuppernong river. The canal and these ditches and drainways constitute a common drainage system for the Alexander farm.

The contract between the defendant Virginia-Carolina Joint Stock Land Bank and its codefendant, W. T. Phelps, dated January 27, 1930, and not recorded at the date of the deed from the defendant bank to the plaintiffs, contains the following stipulations, with respect to the Mountain Canal:

"(a) That the main road along the Mountain Canal is to be at all times kept open for the benefit of the aforesaid tract of land, and the remainder of said Alexander Farm owned by said Bank, but gates may be placed across the same.

"(b) That said Mountain Canal is to at all times remain open, the expense of keeping the same in condition to be borne by the owner or owners of the aforesaid tract of land, and the owner or owners of the remainder of said Alexander Farm, said expense to be in proportion to the number of acres of the aforesaid tract and of the remainder of said tract draining into said canal, but the above described tract to be conveyed to the said Phelps is only to be charged with the proportionate part of the upkeep of said canal from the first cross-ditch north of the south line of said tract to Scuppernong River, and the said Bank, or any owner or owners of the said Alexander lands shall have the right to go through the lands herein contracted to be sold for the purpose of keeping In repair the said Mountain Canal up to the point to which said Phelps lands are to participate in the upkeep. The repairs and up-keep of said Mountain Canal shall be made by the owner or owners of the aforesaid 600 acre tract, and the owner or owners of the remainder of said Alexander Farm, and if either should decline to pay his part of said repairs, then either party may make said repairs upon giving sixty days written notice to the other party and such portions of such expense as may be chargeable to the party refusing, shall, upon reduction to judgment, constitute a lien upon the lands of the refusing party, which lien shall be superior to all others.

"(c) No lands other than the above tract of 600 acres, and the remainder of the said Alexander Farm now owned by said Bank shall be allowed to drain in the said Mountain Canal and at no time shall said canal be flooded by water from Lake Phelps, nor shall the waters of said lake be turned through said canal."

The deed from the defendant Virginia-Carolina Joint Stock Land Bank to the plaintiffs, dated April 1, 1930, and duly recorded on July 24, 1930, contains the following covenants and stipulations:

"(a) That the Grantees shall have the right of ingress and egress over and along the main road which parallels the Mountain Canal north of the lands above described, which right and privilege shall extend to the said Grantees and their successors in title, subject, however, to the right of the owner, or owners, of that portion of the Alexander Farm lying north of the lands above described, to maintain gates across said road.

"(b) The lands herein conveyed shall have the right to drain through said Mountain Canal, which said Canal is at all times to remain open, the expense of keeping the same in condition to be borne by the owner, or owners of the lands herein conveyed, and the owner, or owners of the remainder of said Alexander Farm, said expense to be in proportion to the number of acres herein conveyed draining into said Canal, and of the remainder of said Alexander Farm draining in said Canal; and the said Grantees and their successors in title, shall have the right to go through that portion of the Alexander Farm situated north of the lands herein conveyed,...