Two questions, determinative of tbis appeal, are bere presented for consideration and decision. 1. Was an easemеnt in tbe road across tbe land, now owned by defendant, creatеd by implication of law, upon tbe severance of unity of title by tbе common grantor, Axie Lane, as set forth in tbe facts found by tbe trial court ? 2. If so, was sucb easement extinguished by tbe judgment in tbe civil action institutеd by T. E. Ainsley, immediate predecessor in title of present plaintiff, аgainst Cecil Nixon, tbe present defendant?
In the light of applicable principles of law, applied to the facts found by tbe trial judge, tbis Court bolds that tbe first question is properly answered in tbe affirmative, аnd that tbe second merits a negative answer.
As to tbe first question: “It is a wеll settled rule of law that where, during tbe unity of title, an apparently рermanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude at tbe time оf tbe severance is in use and is reasonably necessary to tbe fair enjoyment of tbe other part of tbe estate, then upon a severance of ownership, a grant of tbe right to continuе sucb use arises by implication of law . . . Tbe underlying basis of the rule is that unlеss tbe contrary is provided, all privileges and appurtenanсes as are obviously incident and necessary to tbe fair enjoyment of the property granted substantially in tbe condition in which it is enjoyed by tbe grantor, are included in tbe grant.”
There are three essеntials to tbe creation of an easement by implication ■upon severance of title: (1) A separation of tbe title; (2) Before tbe separation took place tbe use which gave rise to tbe easement shall have been so long continued аnd so obvious or manifest as to show that it was meant to be permanent; and (3) the easement shall be necessary to tbe benefiсial enjoyment of tbe land granted or retained.
These principles as to creating easements by implication of law upon severance of unity of title has been recognized, and applied in numerous cases in North Carolina. See
Bowling v. Burton,
Now as to tbe sеcond question: Tbe judgment referred to was entered by consent. It is а settled principle of law in tbis State that a consent, judgment is tbe contract of tbe parties entered upon tbe records with tbe approval and sanction of a court of compеtent jurisdiction, and that sucb
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contracts cannot be modified or set aside without tbe consent of tbe parties thereto, except for fraud or mistake, and that in order to vacate such judgment an independent action must be instituted. See
Keen v. Parker,
In the case in hand the рremises set out in the consent judgment in Ainsley v. Nixon is that “this cause comes on now to be adjudged by the Clerk by consent, the parties having agreed uрon a settlement of all matters in controversy herein as herеin set out.” And there is in the entire proceeding no mention of the easement created by implication of law. Hence giving effect to the consent agreement, as stated by the parties then owning the lands, it seems manifest that the parties did not intend that the judgment shоuld affect the easement created by implication of law by the severance of unity of title at the common source.
All assignments of error have been duly considered, and error in them is not made to appear.
Hence the jridgment below is
Affirmed.