Jones v. Carroll, 91 N.C. App. 438

Jones v. Carroll

91 N.C. App. 438 | N.C. Ct. App. | 1988

HEDRICK, Chief Judge.

Defendants base their only argument on 13 assignments of error and 13 exceptions noted in the record. While the assignments of error and exceptions raise a question of the sufficiency of evidence to support the findings of fact and conclusions of law based thereon, defendants only argue in their brief that the trial court incorrectly applied the law to the set of facts in this case, and that an easement should not have been found to exist.

We have reviewed the evidence, however, and we find it is sufficient to support the findings of fact made by the trial court. As for the conclusion based upon those findings of fact that an easement existed, the essentials of an easement by implication were set out in Barwick v. Rouse, 245 N.C. 391, 394, 95 S.E. 2d 869, 871 (1957):

(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; and (3) the easement shall be necessary to the beneficial enjoyment of the land granted or retained.

In this case, the trial court found that title was separated when O. M. Jones, Sr., divided the property he owned and conveyed the pieces of property in question to his two sons. This satisfies the requirement of separation of title. Likewise, the second requirement was satisfied because the road was used before the separation, and the parties intended it to be permanent. It has been openly and continuously used since then. That the road was extended in 1938 to meet Highway 410 and moved in 1945 is of no consequence. When there is no express grant providing otherwise, the location of an easement may only be changed by consent of both the landowner and easement owner. Cooke v. Electric Membership Corp., 245 N.C. 453, 96 S.E. 2d 351 (1957). In this case, the trial court found that all location changes were made with the consent of all interested parties, and therefore the location of the road was properly changed.

As for the third requirement, defendants argue the easement is not necessary since another ingress and egress to a state road is now available to plaintiffs land. Although other jurisdictions *441require strict necessity for an easement by implication, it is well-established in this state that only reasonable necessity is required. Dorman v. Ranch, Inc., 6 N.C. App. 497, 170 S.E. 2d 509 (1969). In this case, the trial court found the road across defendants’ property “is reasonably necessary for the use, benefit and enjoyment of the plaintiffs property by him and his family.” Evidence of an alternate ingress and egress is not conclusive proof that an implied easement is not reasonably necessary. McGee v. McGee, 32 N.C. App. 726, 233 S.E. 2d 675 (1977). Therefore, the trial court under the facts of this case did not err. The trial court found it would have cost a large amount of money to make the other easement usable, and that the original parties intended the use of the road in question. Defendants’ argument has no merit.

Affirmed.

Judges Arnold and Wells concur.