White v. . Coghill

BsogdbN, J. Tbe plaintiff contends tbat sbe is entitled to a way of necessity over the lands of defendants, to be set apart and located by the court. The law of “way of necessity” is discussed in many cases in this State, notably, Cagle v. Parker, 97 N. C., 271, 2 S. E., 76; Lumber Co. v. Cedar Works, 158 N. C., 162, 73 S. E., 902; Carmon v. Dick, 170 N. C., 305, 87 S. E., 224; Brick Co. v. Hodgin, 190 N. C., 582, 130 S. E., 330; Weaver v. Pitts, 191 N. C., 747, 133 S. E., 2; Grant v. Power Co., 196 N. C., 617, 146 S. E., 531. See, also, Brasington v. Williams, 141 S. E., 375. The general rules of law are summarized by Mordecai’s Law Lectures, Vol. 1, page 466, as follows: “A way of necessity exists where a man sells land entirely surrounded by his own land, and there is no outlet from the lands thus sold to the public highway. A right thus created is a right to pass over the vendor’s land so as to reach the public road. It is the duty and right of the vendor to select the route; but, if he fail to point it out, the vendee may select; and after selecting it he must stick to it. . . . It is sometimes stated that, in order to create a way of necessity, the land sold must be entirely surrounded by the lands of the grantor; but this does not seem to be correct, for if the land be surrounded by the lands of the grantor and others, an outlet to the public road over the lands of the grantor is conferred upon the grantee by implication. ... In this State we have a peculiar way of necessity. It is a way, known as a cartway, given by statute to one whose lands are cut off from access to the public highway, and which is obtained by condemnation proceedings.” The decisions upon the subject in this State are to the effect that if the parties stipulate in a deed for a way of ingress and egress to a given point, the vendor has the right to select such reasonable way in the first instance, and if he fails to do so, the vendee may select. It is also fully settled that if at the time of the conveyance or transfer of title, there are easements of permanent character that have been created or exist in favor of the land sold and which are reasonably necessary for its use and convenient enjoyment, that all such easements pass as appurtenances to the land in the absence of' express provision to the contrary. However, 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. *424 Hence, tbe situation is that, according to tbe allegations of tbe plaintiff, sbe owns lands not accessible to a highway except by crossing tbe lands of defendants. These facts invoke tbe application of C. S., 3835 and 3836 as tbe exclusive remedy to wbicb plaintiff is entitled. Therefore, tbe ruling of tbe trial judge was correct. Affirmed.