31 S.E.2d 517 | N.C. | 1944
This is an action for equitable relief. The complaint, in substance, alleges:
That the plaintiff and defendants are the owners of contiguous lots on the west side of Main Street in the city of Hendersonville, the plaintiff's lot being No. 8 and the defendants' lot being No. 7 of what is known as the Bell and Gregory subdivision. That each lot has a frontage of 20 feet on Main Street and a depth of 103 feet, each bordering on an alley on the rear and that the plaintiff's lot lies south of the defendants' lot. That in the year 1924, the plaintiff and one B. L. Foster entered into a parol agreement to construct an Arcade Building on the entire area of both lots to be two stories in height, 40 feet in width, 103 feet in length and to have an eight-foot hallway in the center of the first and second floors, the center of the hallway to run with the boundary line between the two properties. That the structure and arrangement of the rooms, shops, etc., on both sides of the hallways were to be identical in size, form, and arrangement and the first floor was to consist of stores, rooms, and shops facing on Main Street or the arcade or hallway; and on the second floor all rooms were to be used either as offices or apartments and were to open into the upstairs hallway. That it was further agreed that the entire width of the hallways of both floors was to be for the use and benefit of both sides of said building and that each of the parties was to have the right to the full use, enjoyment and benefit of that part of each hallway lying on the land of the other.
The complaint further alleges that the plaintiff and the said Foster constructed a building in substantial compliance with said agreement at a cost of more than $50,000 and that the hallways were constructed as agreed upon, and that the front and rear doors of the lower hallway *482 were common doors and were locked and unlocked by common keys, and that the upstairs hallway extended from a common window in the front to a common window in the rear. That the plaintiff and the said Foster, by reason of their mutual promises, made the outlay above mentioned and that said agreement was to the mutual advantage of both in the construction and use of said building.
It is further alleged that the legal effect of said parol agreement was to create in equity reciprocal easements by estoppel in favor of each party against the half of each hallway on the land of the other and that said estoppel would operate so long as the building remained on the property.
It is also alleged that the structure of the building and of the hallways, stores, shops, offices, and apartments were sufficiently open and visible to indicate the existence of reciprocal easements on both halves of said hallways and to put prospective purchasers on notice of the benefits and burdens arising from the joint use of the property.
It is further alleged that the defendants became the owners of the Foster lot in May, 1935, by deed from Hendersonville Building Loan Association, and that said defendants by said deed acquired all the right, title and interest of the said B. L. Foster in said lot, and that by accepting said deed became entitled to the alleged mutual rights and obligated to perform the alleged mutual burdens in the hallways as set forth above.
It is further alleged that in the month of December, 1941, the defendants erected solid walls about one inch thick and about 7 feet high extending the length of said hallways, just on their side of the division line; that the one on the first floor extends approximately from the center of the common doorway at the front of the building to the common doorway at the rear and that the one on the second floor extends from the approximate center of the common hall window in the front to the approximate center of the common hall window in the rear.
It is further alleged that the erection of said walls by the defendants was unlawful and wrongful, in that it deprives the plaintiff of the full use of the hallways and interferes with the light and ventilation; that they also create an unsightly appearance because of the alleged manner in which they were constructed, and that the plaintiff is being irreparably damaged by reason thereof.
The plaintiff further alleges that the alleged estoppel created, as he contends, between him and the said Foster is binding upon the defendants and that the construction of said walls was and is a continuing trespass upon his rights and that he is entitled to a mandatory injunction to compel their removal. *483
A demurrer interposed in the court below was overruled. Defendants appeal, assigning error. The demurrer admits the material facts alleged in the complaint. Hence, it becomes necessary for us to determine whether or not the construction of the building as described in the complaint, pursuant to a parol agreement created reciprocal or cross easements as to each owner, in the hallways of the building. If so, are the defendants, the present owners of the Foster property, bound by said easements?
In the case of Reid v. King,
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 orquasi- 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,
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 *485 estoppel do not necessarily stem from a common ownership. But where adjoining properties of separate owners have been developed in relation to each other, so as to create cross easements in the stairways, hallways, or other private ways, serving both properties, such easements, if open, apparent and visible, pass as an appurtenant to the respective properties, and are binding on grantees, although not referred to in the conveyance. This view is in accord with many authorities from other jurisdictions.
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,
In the Appeal of Clelland, et al.,
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,
We think the demurrer was properly overruled.
Affirmed.