Ferrell v. Durham Bank & Trust Co.

"WiNBORNE, J. In the light of the factual situation presented in the record on this appeal, the ruling of the trial court follows a principle of law well established in this and other jurisdictions. 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. Jones on Easements, section 129; Washburn on Easements, 3rd Ed., p. 41; 17 Am. Jur., 945, Easements, section 33 et seq; 28 C. J. S., 687, Easements, section 30 et seq; Carmon v. Dick, 170 N. C., 305, 87 S. E., 224; Meroney v. Cherokee Lodge, 182 N. C., 739, 110 S. E., 89; Henry v. Koch, 80 Ky. Reports, 391; Irvine v. McCreary, 108 Ky., 495, 56 S. E., 966; Stone v. Burchead (Ky.), 169 S. W., 489; Burling v. Leiter, 272 Mich., 448, 262 N. W., 388, 100 A. L. R., 1312; Bright v. Allan (Pa.), 53 Atl., 251; Malcolm v. Fuller (Mass.), 25 N. E., 82. See, also, Hair v. Downing, 96 N. C., 172, 2 S. E., 520; Bowling v. Burton, 101 N. C., 176, 7 S. E., 701. 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, Implied, section 33. 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; (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, supra. *436 Id. tbe Carmon case, supra, it is said: “An easement which, is apparent and continuous, such as a drain or other artificial watercourse, a thing which is continuous in its service, and which does not require active intervention of the owner for its continuance, and can always be seen or known on careful inspection, will pass on the severance of two tenements as appurtenant, without the use of the word 'appurtenances’; but an easement which is not apparent and non-continuous, such as a right of way, which is enjoyed at intervals, leaving no visible sign, in the interim, of its existence, will not pass unless the grantor uses language sufficient to create the easement de novo.” When tested by these principles, the facts in the present case present every essential element necessary to create in favor of E. L. Fuller, Jr., Trustee, and his assigns, under the deed of trust from W. K. Dennis and wife, an easement by implication of law in the wall on the strip of land retained by Dennis, and now owned by plaintiff: (1) Dennis had acquired the wall from Watts under covenant running with the title that it should “be and remain a party wall for the perpetual use and benefit of” them “their heirs, assigns, successors, and grantees.” (2) This wall became the west wall and support of the Thomas Book Store building which Dennis erected on the adjoining lot. The title to the building and the wall was united in Dennis and, hence, in keeping with the principle that a person cannot have an easement in his own land, none existed in his favor. Yet the wall was apparently and obviously, and is actually a permanent part of the building, and, admittedly, necessary to the beneficial enjoyment of it. (3) Then when Dennis conveyed the land on which the building stood and retained the wall to which it was attached and the land on which the wall stood, he created the severance of title. Thereupon a right in the grantee to continue to use the wall as incident and appurtenant to the ownership of the building arose by implication of law from the fact that the wall actually existed as a part of the building. Title to the wall, which remained in Dennis, became charged with this easement. The plaintiff by mesne conveyance from Dennis acquired no greater right than Dennis had, that is, he took the title with the servitude upon it. The cases of Reid v. King, 158 N. C., 85, 73 S. E., 816, and George v. Smathers, 198 N. C., 212, 151 S. E., 194, upon which plaintiff relies in the main, treat of principles pertinent to factual situations which differ from that involved in the present case, and, hence, may not be considered as conflicting with the results here. The judgment below is Affirmed.