Moore v. . Shore

OoNNob, J. It is conceded that on the facts admitted in the pleadings and stipulated by the parties, the plaintiffs are entitled to the relief prayed in this action (Johnston v. Garrett, 190 N. C., 835, 130 S. E., 835), unless the defense relied upon by the defendant is sustained. In his answer, the defendant alleges that before he purchased the lot of land now owned by him, and before he began the erection of a filling station thereon, he secured the permission of the plaintiffs and of owners of other lots included in the Shouse development to erect and operate a filling station on said lot of land, in the event he purchased the same; that relying on the permission and agreement of the plaintiffs and of owners of the other lots of land, he purchased said lot of land, paying therefor the sum of $1,000; and that since he purchased the said lot of land, he has expended the sum of $200.00 for materials and labor for the erection of a filling station on said lot. He alleges that plaintiffs well knew that he had purchased the said lot of land for that purpose and with this knowledge acquiesced in such purchase and expenditures. He further alleges that plaintiffs are now and should be estopped from maintaining this action. At the trial, it was admitted by the defendant that the contract and agreement with the plaintiffs alleged in his answer was verbal, and not in writing, signed by the plaintiffs or either of them. The right of the plaintiffs by virtue of the restrictive covenants contained in the deeds under which the defendant holds title to the lot of land now owned by him, with respect to said lot of land, is an easement, or in the nature of an easement (Davis v. Robinson, 189 N. C., 589, 127 S. E., 697), and is therefore an interest in land. For that reason, contracts with reference to such right are subject to the *701 provisions of tbe statute of frauds. C. S., 988. Combs v. Brickhouse, 201 N. C., 366, 160 S. E., 355. Tbe question debated on tbe argument of tbis appeal, however, to wit, whether a verbal release of an easement can be enforced — is not necessarily determinative of tbis appeal. Tbe defendant relies upon tbe facts alleged in bis answer, not as a legal release of tbe easement, but as an equitable estoppel on tbe plaintiffs to maintain tbis action. In Combs v. Brickhouse, supra, tbe rule that an easement cannot ordinarily be extinguished or released by a mere unexecuted parol agreement (19 O. J., 949), is recognized and approved. It was held, however, in that case that an easement may be abandoned by tbe owner of tbe dominant tenement by unequivocal acts showing a clear intention to abandon and terminate tbe right, and that such owner may be estopped to assert tbe right by bis conduct relied on by tbe owner of tbe servient tenement. Tbe rule that a parol agreement between tbe owners of tbe dominant and servient tenements may operate to extinguish an easement where such agreement has been acted upon by tbe owner of tbe servient tenement, was applied in that case. Tbis is a just rule, and in proper cases will be applied to prevent injustice. 19 G.J., 949, and cases cited in support of text. There was error in tbe judgment in tbe instant case. Tbe issues raised by tbe pleadings should be submitted to a jury. To that end, tbe judgment is Reversed.