Winston Brick Manufacturing Co. v. Hodgin

Vaksee, J. The pleadings disclose an admitted contract between the defendants and the plaintiff in “that the defendants designated and *584 stipulated a road, a 'way of necessity’ over .tbeir own land, to tbe public highway, the same to be used for the benefit of the plaintiff and described as follows: 'This property will have road platted to Walkertown or paved highway’ ” and. defendants allege that ''they provided a roadway and there is still a road to plaintiff’s property.” Plaintiff’s allegation that the defendant closed this “way of necessity” in August, 1923, is dénied, 'and the allegations of damages flowing to the plaintiff are also denied. The issues submitted are not objected to and the verdict has eliminated the feme defendant. The appellant assigns error for that the trial court admitted evidence tending to locate a 30-foot road called for in the deed, beginning “at an iron stake, Joshua Sills’ corner”; and stating how this road was closed up and the statement that the plaintiff had no other way out, together with the condition of plaintiff’s brick machine at the time the road was ■closed, and 4 months later, tending to show that 4 months after the ■closing of the road, the machinery was in bad condition, rusty" because it could not be used for lack of a way to approach the mill-site, and that the plaintiff had orders for brick when the road was closed, and in approximating the loss of plaintiff’s machinery and tools; in stating that defendant Hodgin told plaintiff he was planning to have the railroad make another crossing and have another road by a man’s house on the railroad side, and in declining to allow the defendant to introduce the plat. The phase of these exceptions necessary to be considered now is the contention that the admission of this evidence tended to prove a contract different from that admitted in the pleadings and described “as a road platted to Walkertown or paved highway.” The evidence thus admitted tends to limit the location of the road in controversy to 'the 30-foot road mentioned in the description when the deed refers “to a stake in the east side of a new 30-foot road”; whereas the road declared upon and admitted, is the road which the “property will have platted to Walkertown or paved highway.” The description in calling for the new 30-foot road was using the language for the purpose of description, and the parties have admitted that the road which the parties contracted for is that road referred to as going “to Walkerton or paved highway.” The Walkertown highway and “the paved highway” are the same. A grant of a road is the grant of an easement, an incorporeal hereditament. Minor’s Institutes, 2 vol., 18; 2 Blackstone, 35; Cooley’s Blackstone, 458; Tiffany on Real Property (2 ed.), 1198-1304, Pars. 348-363; Mordecai’s Law Lectures, 466. An easement is an interest in land, and is, therefore, within the statute of frauds (C. S., 988), and a contract creating the same must be in writing. Davis v. Robinson, 189 N. C., 589; Hall v. Misenheimer, 137 *585 N. C., 186; Drake v. Howell, 133 N. C., 165; Presnell v. Garrison, 121 N. C., 366; Buckner v. Anderson, 111 N. C., 577; Herndon v. R. R., 161 N. C., 650; Kivett v. McKeithan, 90 N. C., 106; McCracken v. McCracken, 88 N. C., 272; Reise v. Enos (Wis.), 8 L. R. A., 617; North Beach & M. R. Co.'s App., 32 Cal., 506; Foster v. Browning, 4 R. I., 51; Rice v. Roberts, 24 Wis., 465; Cayuga R. R. Co. v. Niles, 13 Hun., 173; Day v. N. Y. Central R. R. Co., 31 Barb., 548. Such easements are within the statute of frauds and cannot be proved by parol. Davis v. Robinson, supra; Ham v. Massasoit Real Est. Co., (R. I.), 107 Atl., 205; Wagner v. Hanna, 38 Cal., 111, 99 Am. Dec., 354. However, a “way of necessity” arises from the grant which is proved or presumed from prescription (Cagle v. Parker, 97 N. C., 271), usually from mere necessity in using the property conveyed or retained. Therefore, it arises in most cases, by implication, but such implication puts into the terms employed in the grant this way of necessity. Norfleet v. Cromwell, 64 N. C., 12. However, the parties stipulated for a “way of necessity” to the Walk-ertown highway, their rights thus established are the same as when “a way of necessity” to - the designated highway had been established in inviium. It is the right of plaintiff to pass over defendant’s lands, owned by him 2 February, 1923 (the date of the deed), to the Walkertown highway. The vendor selects the way and if he fails to select, the vendee may select. This way is one of necessity, and therefore, not one of convenience. Mordecai’s Law Lectures, 466; Corea v. Higurea, 17 L. R. A. (N. S.), 1018, with an elaborate note of authorities and principles; Minor’s Institutes, supra; Tiffany on Eeal Property, supra; Blackstone, supra. A learned decision of ways of necessity appears in. Lumber Co. v. Cedar Works, 158 N. C., 161. The principles of the foregoing apply to the case at bar with the modification arising from the admission of the creation of the way of necessity in the deed sued on. Therefore, it was error to admit evidence tending to locate the road in controversy, except as contemplated in the terms, “a road platted to the Walkertown or paved highway.” Of necessity such a road may be located, according to the evidence, in more than one place, and the contract for such a road would be satisfied when the necessity, and not the convenience, is met. The evidence challenged by the exceptions does not conform to the principles applicable, hence there was error. The other questions may not present themselves in another trial, hence they are not discussed. The judgment entered is reversed to the end that there shall be, in accordance with the principles herein announced, a New trial.