J. B. POTTER and wife, Fannie Lewis Potter,
v.
Herbert POTTER.
No. 606.
Supreme Court of North Carolina.
January 29, 1960.*571 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.
*572 "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 Ill. 465, 141 N.E. 149; 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 *573 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, supra (in which a parent conveyed portions of his land to his children). * * * (W)e conclude that the test of reasonable necessity for the way in question is all that may be made in the instant case, * * * In view of these considerations it is our conclusion that at the time Albert and Joshua Bethel (the cotenants) aparted their lands by mutual conveyances the way in controversy here is shown to have been used as the only outlet for the part it reached of the land Albert took, that it was reasonably necessary for the enjoyment of that part of the land, that no other way from that part of the land was practicable if at all possible, and that it added to its value and was therefore conveyed to Albert by implied grant in the deed from Joshua Bethel."
We are advertent to the decision of this Court in White v. Coghill, 201 N.C. 421, 160 S.E. 472, 473. In that case petitioner was devised a tract of land without any way of egress to a public road except over the land of another devisee of the testator. Petitioner contended that she was entitled to a "way of necessity." The Court, after defining "way of necessity," concluded: "* * * the case at bar does not fall within the foregoing principles. There is no allegation in the petition that any roadway or easement existed or was used for the benefit of the land owned by the plaintiff, nor is there any provision in the devise creating such an easement. Hence, the situation is that, according to the allegations of the plaintiff, she owns lands not accessible to a highway except by crossing the lands of defendants. These facts invoke the application of C.S., § 3835 and C.S. Supp.1924, § 3836 (G.S. §§ 136-68 and 136-69) as the exclusive remedy to which plaintiff is entitled." (Emphasis ours.) The holding in this case is not contrary to the principles set out in the two preceding paragraphs.
Except for the matter discussed below, plaintiffs' evidence makes out a prima facie case of easement of roadway by implied grant. The evidence and stipulations tend to show that both parts of the land were unified in title under the tenants in common, W. H. C. and J. C. Potter. A visible cartway was in continuous use serving the northern and southern portions and giving access to the public road. There was a severance and division of the land by cross-conveyances between the co-owners. The fact that these deeds were made at separate times seems inconsequential in light of all the circumstances and in the absence of some further showing. The road was in continuous use for the benefit of the northern portion until obstructed in 1956. No other way exists for ingress and egress to and from the northern portion. It is true there was a change or deviation in the location of a portion of the road. While the location of the cartway must be definite and specific and a substantial deviation might be deemed an abandonment of the easement, the question as to whether there was such deviation as to work an abandonment is for the jury. Speight v. Anderson, 226 N.C. 492, 497, 39 S.E.2d 371; Hemphill v. Board of Aldermen, 212 N.C. 185, 188, 193 S.E. 153.
It must be borne in mind that an easement by implication, if it exists at all, is appurtenant to a specific parcel of land. Carmon v. Dick, supra. Plaintiffs in the instant case own the "northern part" in two separate tracts; male plaintiff owns one, feme plaintiff the other. The complaint does not make this clearit leaves the impression there is only one tract. Had the facts been clearly pleaded in this respect, the complaint would have been demurrable for misjoinder of causes of action. Defendant asserts that there is a variance between allegation and proof and the ruling of the court on the motion to nonsuit was proper for this reason. But we are disposed to regard the situation presented as a failure of proof. Whichard v. Lipe, 221 N.C. 53, 54, 19 S.E.2d 14, 139 A.L.R. 1147. *574 There is sufficient evidence to take the case to the jury had the "northern part" constituted one tract or been under one owner-ship. But the evidence fails to disclose on which of plaintiffs' tracts the cartway lies and which it benefits or has benefited. Is it situated on both tracts and has it served both tracts? If not, which one? Has the use been continuous and necessary to both tracts? Has there been a discontinuance of use and abandonment of the easement as to one tract and, if so, which one? Is there an alternate way available to one tract and not the other? The evidence does not answer these questions. It must be shown that the easement, if any, is appurtenant to the specific tract of each plaintiff before both may be entitled to the relief sought. The evidence fails to show that it is appurtenant to both tracts in this case; if it is appurtenant to only one, it does not disclose which one.
Affirmed.