Miller v. . Teer, 18 S.E.2d 173

Miller v. . Teer

18 S.E.2d 173

N.C.

1942

Check Treatment

Seawell, J.

In tbis appeal plaintiffs rely, for tbe most part, on tbe consent judgment of 1903, above set out in full, as determining tbe rights of tbe parties rеlative to tbe passageway in dispute.

First, they contend that tbe effect of tbe judgment is to create a fee simple оwnership in tbe parties plaintiff and defendant in that suit, as tenants in common of tbe whole strip, which is now outstanding in tbe present litigant рarties as successors in title. Although we get tbe impression from tbe findings of fact that tbe case was not tried on that theory in tbe court below — the plaintiff there insisting only to be let into tbe enjoyment of an easement — we have considered tbis point of view with care and think tbe contention untenable.

It is conceded that an unlimited conveyance of tbe beneficial use оf property carries with it tbe corpus and, in proper cases, may be regarded as a conveyance in fee. Burcham v. Burcham, 219 N. C., 357, 359, 13 S. E. (2d), 615; Schwren v. Falls, 170 N. C., 251, 87 S. E., 49; 19 Am. Jur., 484, sec. 24. But tbе consent judgment does not purport to do tbis, or if it does, tbe language used is insufficient to accomplish tbe result. Taking tbe judgment аs a whole, tbe use with which it is concerned, and which it purports to preserve and protect, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is limited to ingress and egress in connection with access to tbe two buildings between which tbe passageway is located — a very limited use of property which could be, and as shown by tbe evidence actually was, used in other practical ways.

It is true tbe consent judgment, in positive tеrms, declares tbe Barbees to be tbe owners in fee of their own building, and Massey to be tbe owner in fee of bis building, as to both of whiсh facts there bad been no dispute. But silence on that point with respect to tbe disputed area could not by inferenсe, or we may say negatively, confer title to it upon either party. Standing alone it must be construed as dealing only with tbe question of easement.

We believe tbis to be consistent with tbe view taken of tbis judgment in Massey v. Barbee, 138 N. C., 84, 87, 89, 50 S. E., 567, and tbe construction put on tbis document by tbe cоurt below was correct.

Tbe plaintiffs insist that tbe deed made by tbe defendants to Dolian Harris, Trustee, to facilitate tbe division оf tbe Wright property in accordance with tbe family agreement, conveys tbe Massey property under a descriptiоn which covers tbe locus in quo. It calls for tbe *612 Massey line. The defendants as strongly insist that the real Massey line referred to in that deed is the brick wall of the Massey building, for which the deeds in their chain of title call, and this would not cover any part of the disputed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍area. In this connectiоn it must be kept in mind that this Court, dealing only with matters of law, has not the power with which the court below was vested in dealing with such a question. It is a jury question and a jury has spoken.

Also on this point the trial judge found as a fact that counsel for plaintiffs in open court announced that “the plaintiffs were not seeking and made no claim to the title, ownership, or possession of said strip of land,” referring to the locus in quo, but only sought to be let into the enjoyment of the easement.

That Bufus Massey had, or acquired by the consent judgment, an easement in the use of the stairway and halls for ingress and egress to and from his building is not questioned. Perhaps an easemеnt of this sort, acquired as this was, could not be made the subject of parol release, except upon the principle of estoppel, since it is an interest in lands within the statute of frauds. Combs v. Brickhouse, 201 N. C., 366, 160 S. E., 355.

But such easement may be abandoned or extinguished by unequivоcal acts in pais inconsistent with further assertion of any rights under it. Combs v. Brickhouse, supra; Tiffany, Real Property, 3rd Ed., Vol. 3, sec. 825; 15 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍C. J., p. 1253, sec. 73; 19 C. J., p. 940, sec. 148; 17 Am. Jur., p. 1026, sec. 142. The standard by which the adequacy of such conduct may be measured may be found in Furniture Co. v. Cole, 207 N. C., 840, 846, 178 S. E., 579: “The pertinent decisions in this State are to the effect that an abandonment may be еxpress or implied. Discussing, the subject in Banks v. Banks, 77 N. C., 186, this Court said: ‘To constitute an abandonment or renunciation of claim there must be acts аnd conduct, positive, unequivocal, and inconsistent with their claim of title. Nor will mere lapse of time or other delay in assеrting his claim unaccompanied by acts clearly inconsistent with his rights, amount to a waiver or abandonment.’ See, also, Faw v. Whittington, 72 N. C., 321; Aiken v. Ins. Co., 173 N. C., 400, 92 S. E., 184; R. R. v. McGuire, 171 N. C., 277, 88 S. E., 337. The McGuire case, supra, statеs the principle as follows: ‘This brings us to consider the essential elements of an abandonment. It includes both the intention to abandon and the external act by which such intention is carried into effect. There must be a concurrence of the intention with the actual relinquishment of the property. It is well settled that to constitute an abandonment or renunciation of a claim to property there must be acts and conduct, positive, unequivocal, and inconsistent with the claim of title.’ ” And speaking to thе same point, we quote Jones on Easements, section 851: “To make *613 out a voluntary abandonment of an easement tbе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍proof must go to this extent, as declared by Chief Justice Shaw: ‘First, that the acts relied on were voluntarily done by the owner of the dominant tenеment, or by his express authority; secondly, that such party was the owner of the inheritance, and had authority to bind the estate by his grant or release; and thirdly, that the acts are of so decisive a character, as to indicate and prove his intent to abandon the easement.’ ”

Necessarily the question of abandonment under such circumstances is one for the jury. McArthur v. Morgan, 49 Conn., 347; Russell v. Davis, 38 Conn., 562; Holmes v. Jones, 80 Ga., 659, 7 S. E., 168. It is largely a matter of intention, and while a declaration of such intention will not effect an abandonment, it may be considered in cоnnection with other facts, as, for instance, the acts of the dominant owner, upon the question of intent. Snell v. Levitt, 110 N. Y., 595, 18 N. E., 370; 17 Am. Jur., p. 1027. It is clear -that R. H. Wright, ownеr of the dominant tenement and manager of the property he had conveyed to his niece in consideration of lоve and affection, preferred to abandon the easement rather than have her subjected to a renewal оf the lawsuits likely to grow out of its exercise, if fallen into the hands of unfriendly or inconsiderate owners, and in this light, his act in closing and bricking uр the openings in the wall giving access to the stairway could scarcely be more unequivocal, or a more comрlete abandonment of his easement.

It is, of course, impossible, within the limits of this opinion, to make a detailed analysis of thе voluminous and painstaking findings of fact upon which the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial judge based his conclusions. It is sufficient to say that careful examination warrants the conclusion that the findings are based on competent evidence.

We find no error, and the judgment is

Affirmed.