Barwick v. Rouse

WiNBORNE, C. J. The record and case on appeal disclose that the theory on which plaintiff bases her cause of action is that at the time of the severance of title by W. H. Barwick there existed the essentials for the creation by implication of law of a roadway easement from her land across the land of defendants as described in the complaint. On the other hand, defendants deny the existence of such essentials. The principle of law involved is well established in this and other jurisdictions. In this connection it is a general rule of law that where one conveys a part of his estate, he impliedly grants all those apparent or visible easements upon the part retained which were at the time used by the grantor for the benefit of the part conveyed, and which are reasonably necessary for the use of that part. Ferrell v. Trust Co., 221 N.C. 432, 20 S.E. 2d 329, and texts and cases cited. And notwithstanding the fundamental principle that a person cannot have an easement in his own land, “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 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.” 17 Am. Jur. 945; Easements *394 Implied, Section 33. Ferrell v. Trust Co., supra. Spruill v. Nixon, 238 N.C. 523, 78 S.E. 2d 323. Indeed there are three essentials to the creation of an easement by implication upon severance of title: (1) A separation of the title; (2) before the separation took place, the use which gives rise to the easement shall have been so long continued and so obvious or manifest as 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. 17 Am. Jur. 948; Easements, Section 34. Carmon v. Dick, 170 N.C. 305, 87 S.E. 224; Ferrell v. Trust Co., supra; Spruill v. Nixon, supra. In the case in hand the trial judge, in charging the jury, declared these principles and expressly instructed the jury in respect thereto in the light of the facts as the jury should find them to be. Appellants excepted to several portions of the charge, — particularly as it relates to the burden of proof. However, when the charge is read contextually it is clearly understandable, and is not susceptible of misunderstanding. In these exceptions, therefore, error is not made to appear. Furthermore, appellant assigns as error the failure of the court to declare the law (1) arising on the evidence that a right of way by prescription was claimed over the land of the defendants to the land of plaintiff; and (2) arising on evidence of adverse possession and use under claim of right, for a period of twenty years. These contentions are contrary to the theory of the trial as set forth hereinabove, and are without merit. Indeed there are numerous other assignments of error, based on various exceptions, all of which have been examined and considered, and found not to-be meritorious. Finally it may be said that the case appears to have been fairly presented to the jury under a charge free from error, and the jury has not accepted the contention of plaintiff. Hence in judgment from which appeal is taken, there is No error. Joi-iNSON, J., not sitting.