Carver v. Leatherwood

BaeNHIll, J. The demurrer, for the purposes of this appeal, admits the facts alleged in the complaint. Whether the complaint is fatally defective in any one or more respects set forth in the demurrer is the one question presented. In deciding the same we may not consider either the defenses alleged in the answer or the evidence offered at the hearing. This is not an action to establish a cartway, which must be instituted before the clerk in the form of a special proceeding. G.S. 136-68, 69. *98 It is a civil action to obtain a judicial declaration of tbe right of plaintiffs to use the described roadway as an appurtenance to their land and as a way of necessity,, and is authorized by Chap. I, Art. 26, of the General Statutes of North Carolina. Hence, there is no want of jurisdiction in the court to hear the cause and enter judgment therein. If plaintiffs in this action are required to allege that they have no other way of ingress and egress — which we do not now decide — such allegation sufficiently appears in the complaint. It is alleged that the land of plaintiffs was “cut off, severed from, and isolated from a public road” by the land now owned by defendants, and plaintiffs pray that defendants be enjoined from “blocking the only existing means of egress and ingress . . .” Under the rule of liberal construction these allegations are sufficient to meet this ground of demurrer. The plaintiffs allege in effect that the roadway was in existence at the time the 59% acre tract was severed from the larger boundary, that the presence of the roadway was a condition which openly and visibly existed at that time, that the parties contracted with a view to this condition, and that in recognition thereof the roadway was so used by defendants’ immediate grantee without any objection by them. Thus, they assert, the cartway or road constitutes an easement appurtenant to their land, impliedly granted by the deed of defendants. They further allege that when their land was severed from the larger tract it was thereby isolated from any public road, and that therefore they are entitled to a roadway across the land of defendant as a way of necessity impliedly granted by defendants. Thus the complaint states facts sufficient to entitle plaintiffs to a judicial determination of their alleged contractual right to a roadway from their land across the land of defendants to the public road. As the sufficiency of the complaint is the only question presented, we have studiously avoided any discussion of the merits of plaintiffs’ claim. It is not amiss to note, however, that plaintiffs refer to their alleged right both as an easement in a specific roadway, appurtenant to their land, Bowling v. Burton, 101 N.C. 176; 17 A.J. 944, sec. 32 et seq.; Anno. 8 A.L.R. 1368; Packard v. Smart, 224 N.C. 480, 31 S.E. 2d 517; Neamand v. Skinkle, 225 N.C. 383, 35 S.E. 2d 176, and as a way of necessity by reason of the fact the severance isolated their land from a public road, Lumber Co. v. Cedar Works, 158 N.C. 161, 73 S.E. 902; 17 A.J. 959, sec. 48 et seq. As there are substantial differences between the two rights, it might be well for plaintiffs to decide upon which right they rely. This would greatly facilitate the trial and lessen the possibility of error. The judgment below is Reversed. Seawell, J., dissents.