Packard v. Smart
Packard v. Smart
Opinion of the Court
Tbe demurrer admits tbe material facts alleged in tbe complaint. Hence, it becomes necessary for us to determine whether or not tbe construction of tbe building as described in tbe complaint, pursuant to a parol agreement created reciprocal or cross easements as to each owner, in tbe hallways of tbe building. If so, are tbe defendants, tbe present owners of tbe Foster property, bound by said easements %
In tbe case of Reid v. King, 158 N. C., 85, 73 S. E., 168, tbe plaintiff bad constructed a party wall pursuant to a parol agreement with one Thompson, tbe owner of an adjoining lot. It was agreed that Thompson should have tbe right to use tbe party wall if and when be should construct a building adjacent thereto, at which time be should reimburse Reid for one-half tbe cost of tbe wall. It was further agreed that if Thompson should sell tbe lot without constructing a building thereon, be would inform bis grantee of tbe party wall agreement. Thompson sold bis lot to one King and informed him of tbe terms of bis agreement with plaintiff. King erected a building on tbe lot and used tbe party wall, but refused to reimburse Reid for one-half of tbe cost thereof. An action was instituted for tbe recovery of one-half of tbe cost of tbe wall, and tbe Court held tbe defendant obligated to pay bis pro rata part of tbe cost — not by reason of tbe agreement, but from tbe nature of tbe relation, or quasi ex contractu; and tbe Court said: “Tbe effect of such an agreement is to create cross easements as to each owner, which binds all persons succeeding to the estates to which tbe easements are appurtenant, and a purchaser of tbe estate of tbe owner so contracting would take it burdened with tbe liability to pay one-half tbe cost of tbe wall, whenever be availed himself of its benefits. 88 Mo., supra (p. 498). Tbe language of courts and of judges has been very uniform and very decided upon this subject, and all agree that whoever purchases lands upon which tbe owner has imposed an easement of any bind, or created a charge which could be enforced in equity against him, takes tbe title subject to all easements, equities, and charges, however created, of which be has notice. 88 Mo., supra. Lord Cottenham said, in Tulk v. Moxhay, 2 Phil. (Eng. Ch.), 774: ‘If an equity is attached to property by tbe owner, no one purchasing with notice of that equity can stand in a different situation from tbe party from whom be purchased.’ But although tbe covenant, when regarded as a contract, is .binding only
In the instant case, the original parties agreed, for all practical purposes, to substitute common hallways on both floors of the building in lieu of a party wall and constructed the building accordingly. For approximately seventeen years the entrances, stairway and hallways were used as contemplated by the original builders and so used for six years by these defendants.
The greater weight of the authorities seem to hold that no easement or quasi-easement will be created by implication, unless the easement be one of strict necessity, but we think that means only that the easement should be reasonably necessary to the just enjoyment of the properties affected thereby, and it is so stated in Thompson on Real Property, Vol. 1, sec. 409 (369), p. 668, citing many cases, among them Bowling v. Burton, 101 N. C., 176, 7 S. E., 701. This is in accord with the decision of this Court in the case of Ferrell v. Trust Co., 221 N. C., 432, 20 S. E. (2d), 329, in which we held: “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,” citing numerous authorities.
The fact that the title to the Foster property, now owned by the defendants, and the title to the property of the plaintiff, were not vested in a common owner at the time of the construction of the building involved herein, is immaterial. Easements created by implication or
In 19 C. J., sec. 137, p. 934, it is said: “If a building consisting of several apartments is so constructed that all the occupants must enter and depart by the same hall and stairway these become a way of necessity upon the sale or lease of part of the building.” Also sec. 145, p. 939, where it is stated: “One who purchases land with notice, actual or constructive, that it is burdened with an existing easement takes the estate subject to the easement, and will be restrained from doing any acts which will interfere with the benefit and enjoyment of the easement to the full extent to which the party having a right thereto, who has not parted with or impaired the same, was entitled at the time when such purchaser bought. He has no greater right than his grantor to prevent or obstruct the use of the easement. The rule applies whether the sale is voluntary or involuntary. Frequent applications of the rule are found in the case of private rights of way, stairways, and water rights.” Welfare B. & L. Asso. v. Kreiger, 226 Vis., 105, 275 N. V., 891.
In the Appeal of Glelland, et al., 133 Pa., 189, 19 A., 352, the facts and holding of the Court are succinctly stated in the syllabus, as follows : “The owners of adjoining lots built a single building covering both lots. The only access to the upper stories was by stairs which were altogether on one lot. Held, that the erection of such building constituted an executed license, in the nature of an easement, on the part of the owner of said lot, allowing the owner of the other lot to use such stairs.”. It is stated in the opinion of the Court that “The building being cast by common consent in its present permanent form, neither party can revoke the arrangement, upon the faith of which the money of the other has been expended. Each and every part is affected with what, in its nature, is a permanent servitude, so long as the building itself stands. It cannot be changed from its present form, nor the right of common access now provided for, be interfered with, at the will of either party, but only by the common consent of all.” A similar conclusion is reached by the Court in the case of Binder v. Weinberg, 94 Miss., 817, 48 Southern, 1013. The factual situation was similar to the instant case, and while the Court held the evidence insufficient to create an “easement of strict necessity,” it did hold: “That the appellee is estopped, by equitable considerations, from obstructing this common hallway with this new
It is also stated in 26 C. J. S., sec. 43, p. 707: “If a building is so constructed that all the occupants must enter and depart by the same hall and stairway, an easement for the use of the hall or stairway is impliedly granted on the sale or lease of part of the building.” To the same effect is the holding in the case of Forde v. Libby, 22 Wyo., 464, 143 Pac., 1190, where it is stated: “Where owners of adjoining lots orally agreed upon a private way between their lots and constructed their improvements with relation thereto, each was estopped from disputing, the other’s right to such way, and that estoppel extended to their grantees,
We think the demurrer was properly overruled.
Affirmed.
Reference
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- RICHARD P. PACKARD v. F. C. SMART and Wife, LOTTIE SMART
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