135 S.E. 466 | N.C. | 1926
On 2 February, 1923, the defendants conveyed to the plaintiff six acres of land. The defendants owned other land extending from the tract sold plaintiff, northward to the right of way of the N. W. R. R. The deed from defendants to plaintiff contained this clause: "This property will have a road platted to Walkertown or paved highway." The Walkertown or paved highway referred to is north of the right of way of the N. W. R. R. Hence the defendants owned land between the plaintiff's land and the south side of the right of way of *578 the N. W. R. R., and therefore in order to reach Walkertown or paved highway, it would be necessary for him to cross defendants' land and the southern right of way of the railroad, the railroad itself, and the northern right of way of the railroad. The defendant platted a street called Garden Street from the plaintiff's land northward to the right of way of the railroad, which street was laid out across the entire property owned by the defendants, between plaintiff's land and the railroad right of way. It was contended by the plaintiff that there was an old road known as Jefferson Street and parallel with Garden Street and situated about 314 feet west of said Garden Street. This Jefferson Street crossed the railroad right of way and the railroad track. It does not appear from the record whether this was a public crossing or not. The plaintiff alleged that the defendant had closed or obstructed this space known as Jefferson Street, and that by reason thereof plaintiff had no outlet to the paved highway, and as a result of the closing of the space known as Jefferson Street, it became necessary for plaintiff to discontinue his brick plant because of lack of access thereto. The defendant contended that Garden Street was opened up entirely across his land to the railroad right of way.
At the conclusion of plaintiff's evidence there was a judgment of nonsuit, and the plaintiff appealed. The plaintiff alleged in his complaint "that the defendants designated and stipulated a road a "way of necessity" over their own land to the public highway, the same to be used for the benefit of plaintiff, and described as follows: "This property will have road platted to Walkertown or paved highway." In paragraph 6 of the complaint plaintiff alleged: "That on or about 15 August, 1923, the defendant closed or caused to be closed said road or `way of necessity' to the said tract of land." It was further alleged that, as a result of closing said "way of necessity" the plaintiff sustained damage because he "was surrounded and hedged in and had no outlet, and was precluded from hauling material and wood for the burning of brick, and was unable to get other land for the purpose of carrying on his work in making brick and doing other work necessary on the yard as brick-makers."
The defendant admitted the fourth allegation of the complaint, in which it was alleged that the defendants designated and stipulated a "way of necessity" over their land. *579
It is apparent therefore that the sole cause of action alleged in the complaint was the failure of the defendant to furnish a "way of necessity" over his land.
It is further apparent that the covenant in the deed, "This property will have a road platted to Walkertown or paved highway," has been construed by the parties in their pleadings as confining the scope of this case to a "way of necessity."
This cause was considered by the Court in Brick Co. v. Hodgin,
This declaration of the law contains three distinct and clear cut propositions:
1. The parties contracted for a way of necessity over the land of defendant, owned by him the date the deed was executed and delivered.
2. The vendor has a right to select the way.
3. The convenience of the parties claiming a "way of necessity" is not the controlling consideration.
Justice Varser says further: "Of necessity such a road may be located, according to the evidence, in more than one place, and the contract for such a road would be satisfied when the necessity, and not the convenience, is met."
The theory upon which the case was tried, as reported in
The present record discloses the fact that the space known and designated as Jefferson Street was not a public road, but was the property of H. O. Dixon, who testified that he owned all the land designated as Jefferson Street and had owned it since 1921. Therefore, Jefferson *580
Street did not cross the property of the defendant at all, hence, under the decision in the former case, and under the pleadings appearing in the record, the defendant discharged his obligation to the plaintiff when he platted across the land owned by him on 2 February, 1923, a reasonably proper outlet for the plaintiff. "It has been the invariable rule with us to hear a cause here according to the theory upon which it was tried in the Superior Court." Webb v. Rosemond,
Therefore, it appearing that the cause of action alleged in the complaint was based solely and entirely upon a "way of necessity" across the land of the defendant, and it further appearing that the defendant has provided a way across his land, the judgment of the trial judge was correct.
No error.