Defendant contends that the trial court erred in finding that plaintiff had an easement along Cherry’s Alley to Washington Street. We disagree and find that the evidence does show that plaintiff had an implied easement in the alley.
Although easements must generally be created in writing, courts will find the existence of an easement by implication under certain circumstances. J. Webster,
Real Estate Law in North Carolina,
The author in the above mentioned article describes what he sees as a typical example of an easement implied from prior use, stating that it “begins with a landowner who builds and uses a driveway from the public road. Later he sells a portion of the land served by the driveway but retains title to the driveway itself. The purchaser, who knew of the driveway at the time of the transfer, may have reasonably assumed that the driveway would continue to serve his land, regardless of whether his land had some other access to the public road.” Id. This “typical” example closely resembles the facts of the case at bar.
An easement implied from prior use is generally established by proof: (1) that there was common ownership of the dominant and servient parcels and a transfer which separates that ownership; (2) that, before the transfer, the owner used part of the tract for the benefit of the other part, and that this use was apparent, continuous and permanent; and (3) that the claimed easement is “necessary” to the use and enjoyment of the claimant’s land.
See Glenn, supra
at 225, and
Dorman v. Ranch, Inc.,
Moreover, the element of necessity does not require a showing of absolute necessity. “It is sufficient to show such physical conditions and such use as would reasonably lead one to believe that grantor intended grantee should have the right to continue to use the road in the same manner and to the same degree which his grantor had used it, because such use was reasonably necessary to the ‘fair’ . . . , ‘full,’ . . . ‘convenient and comfortable,’ . . . enjoyment of his property.”
Smith v. Moore,
Applying these principles to the facts before us, we find that the evidence is sufficient to establish an easement implied from prior use in Cherry’s Alley. The first link in plaintiffs chain of title is a deed to Adam Cherry by Margaret Taylor dated 30 Oc tober 1876. The property conveyed was a single tract constituting 2 5/6 acres and lying both north and south of Cherry’s Alley. The next conveyance in the chain is a deed from Adam Cherry to Champ Shields dated 25 October 1895. The description shows that the lot conveyed became landlocked as a result of the conveyance, except for the cartway adjoining it to the north. The lot is described as adjoining the lands of Rebecca Bryant on the west; a lane or cartway on the north; and the lands of Adam Cherry, the grantor, on the east and south. This lane or cartway, now known as Cherry’s Alley, clearly provided Champ Shields with the only means of ingress to and egress from the lot conveyed. Moreover, since the conveyance from Adam Cherry to Champ Shields amounted to a separation of title with regard to the land to the north and south of Cherry’s Alley, and since this alley appears to have constituted the only means of ingress to and egress from the property prior to the separation of title, we find that an implied easement was created at the time Shields came into ownership of the property. Since the alley has continued to serve plaintiffs predecessors in title as the sole means of reaching the property, we conclude that plaintiff herself must be allowed to benefit from this use of the alley and hold that she had an easement implied from prior use.
Defendant also contends that the trial court erred in admitting into evidence a map prepared in 1976 of a tract of land south of Cherry’s Alley which was introduced
The record indicates that defendant made a general objection to the offer of the exhibit in that the grounds for objection were not specified. A general objection, if overruled, will not be preserved on appeal unless there was no purpose for which the evidence could have been admitted.
State v. Ward,
Defendant also contends that the trial court erred in finding that plaintiff was damaged in the amount of $4,876.80. It is alleged that this finding was based on incompetent evidence, since the only evidence regarding value was the testimony of plaintiffs son, who stated that, in his opinion, the value of his mother’s property was $16,256.00 prior to the time Cherry’s Alley was closed and $11,379.20 immediately after the alley was closed. We find that the trial judge did not abuse his discretion in denying defendant’s motion to strike the testimony.
When an easement is taken by a third person the correct measure of damages is the difference in the fair market value of the land immediately after the taking.
See Hill v. Town of Hillsborough,
In the case at bar, plaintiffs son managed his mother’s property and visited the land about four times per year. Moreover, he was familiar with the sales prices of the adjacent lots. We find that the court did not err in finding him competent to testify about the value of the property at issue.
Lastly, plaintiff contends in her cross assignment of error that the court committed error in concluding as a matter of law that it could not properly sign and enter a judgment in this case allowing pre-judgment interest. The record reflects that the trial court originally provided in the judgment that plaintiff was entitled to recover interest on the damages from 25 September 1980, which was the date on which this action was initiated. Subsequently, defendant moved the court to amend the judgment to provide for interest only from the date of judgment. After considering the motion, the trial court concluded that it could not properly sign a judgment in this case allowing pre-judgment interest. We affirm the decision of the court.
It is established that pre-judgment interest may be awarded on the value of property from the date the property was taken.
Sanders v. Wilkerson,
The decision of the trial court is
Affirmed.