Ring v. . Mayberry

Clark, 0. J. The plaintiff obtained a temporary restraining order to prevent the defendant from completing a brick store in Elkin, N. C., on the allegation that the defendant is under obligation to build a stairway between the defendant’s building and one adjacent thereto owned by the plaintiff, and that he was proceeding to erect the building without any provision for such stairway. At the return of restraining order the court modified the order so as to authorize the defendant to proceed with the construction of said building, “provided he shall, in the construction of the same, leave a space between the buildings of plaintiff and defendant, as described in the petition, sufficiently wide for the construction of the stairway,' claimed by plaintiff, leading from the sidewalk to the second story of the plaintiff’s said building, if on final hearing it shall be decreed that said stairway shall be built”; and the restraining order, as thus modified, was continued to the hearing. According to the affidavits for the plaintiff, he sold to one R. L. Poin-dexter the lot on which this building is now being erected, with an agreement that said Poindexter should build a stairway from the sidewalk up to the second story of the building which has been erected by plaintiff *565 oil tbe lot and along tbe wall of plaintiff’s building, at bis (Poindexter’s) cost; that plaintiff and bis beirs and assigns should have tbe perpetual use of tbe said stairway for tbe benefit of plaintiff’s building; that subsequent to this transaction E. L. Poindexter orally contracted to sell and convey said lot to tbe defendant, who entered into tbe same agreement as to tbe building of tbe stairway as bad been made between E. L. Poin-dexter and tbe plaintiff; that tbe defendant, in completing tbe building, put up. a stairway as agreed upon; but tbe building and stairway being destroyed by fire in 1913, tbe defendant is now proceeding to put up tbe building without erecting said stairway. When tbe building was put up by tbe defendant tbe stairway was constructed, and at tbe request of E. L. Poindexter tbe plaintiff executed a deed to tbe lot to tbe defendant. Tbe plaintiff avers that this deed contained a covenant that tbe building should contain said stairway for tbe use of tbe adjoining lot, and tbe plaintiff has no way of reaching tbe second story of bis building except by tbe stairway agreed to be built and maintained. Tbe plaintiff further avers that tbe defendant, who received from him said deed, has failed to record tbe same, and that if this deed does not contain tbe said covenant it was omitted by mutual mistake, and be asks, in that event, for tbe correction of tbe deed. Tbe stairway was maintained by defendant and was used by tbe plaintiff for fourteen years prior to tbe fire, without any objection on tbe part of tbe defendant and without demanding any compensation for its use. Tbe defendant contends that tbe remedy of tbe plaintiff is a mandatory injunction' to compel tbe building of a stairway, and not a preventive injunction against the construction of tbe buildingi This objection has been obviated by tbe modification which was made in tbe order permitting tbe erection of tbe building, leaving open a space for said stairway until tbe determination of tbe facts at tbe bearing. The defendant further contends that tbe plaintiff has shown no right to such order, and that the temporary injunction should have been dissolved. But this was a covenant running with tbe land. Aside from tbe express averment of tbe creation of tbe easement, tbe acceptance of tbe deed containing a covenant on tbe part of tbe grantee is equivalent to tbe grant of an easement by tbe defendant. Such covenants run with tbe land and are not at all unusual. They are good even against assignees in fee, where tbe intention to create them is clear. 11 Cyc., 1045 B, 1058-9, 1091e, 1092; Norfleet v. Cromwell, 64 N. C., 1 If there were such covenant to maintain tbe stairway, and tbe same was omitted from the- deed through tbe mutual mistake of tbe parties, it can be corrected by parol evidence. Adams Eq., 348, 349, note; 2 Pomeroy Eq. Jur., secs. 853, 857, 859, 866, 870. Tbe evidence shows that this stairway was maintained by the defendant for use of the plaintiff for fourteen years up to tbe fire. *566 In a proceeding of this nature mucb will depend upon whether tbe greater inconvenience will be suffered by denying or granting tbe restraining order to tbe bearing when tbe facts can be determined. High on Inj. (4 Ed.), sec. 13. ¥e tbink tbat in view of tbe modification of tbe order made by tbe judge in continuing tbe injunction to tbe bearing, there was less inconvenience and detriment in requiring tbe space to be left open for tbe stairway until sucb determination of tbe facts, and tbe judgment is Affirmed.