Hall v. . Turner

14 S.E. 791, 110 N.C. 292

• Court: Supreme Court of North Carolina
• Decided: February 5, 1892
• Status: Published

Opinion

Shepherd, J.

after stating the case, proceeded: After a careful consideration of the charge of his Honor in reference to the height of the dam, we are of the opinion that, in view of the testimony, there was no error, and that the exception of the plaintiff in this particular must be overruled.

The other points presented in the record are not so clear, and we approach their consideration with no little doubt and solicitude. The plaintiffs insist that the right of the defendants to maintain the dam and overflow the plaintiffs’ land, determined at the death of the defendants’ ancestor, Evans Turner; but if they are mistaken in this, they pray that the defendants, the heirs of said Turner, be required to “allow” the plaintiffs the use of so much land on the south of the river as will equal in acreage the quantity now overflowed and damaged by reason of the maintenance of the said dam. The agreement between the said Hall and Turner is of a very peculiar character, and so vague and uncertain in part that, but for the fact of its having been executed by one of the parties who has erected permanent improvements, we would be somewhat inclined to place it under that class of contracts mentioned by Lord Brougham in Keppel v. Bailey, (2 Mylne v. Keene, 577) as being “so clearly inconvenient to the science of the law” as to receive no encouragement at the hand of the Courts. Although the agreement contains no words of covenant, we think that, in consideration of the circumstances, an equitable construction warrants us in holding that it was the intention of Hall to confer upon Turner an easement “to back water, if necessary, up into his field.” Such an easement is “an incorporeal hereditament, a right not indeed to the land itself, but to a privilege on and upon the land. * * * It is a freehold interest,” and within the statute of frauds. Bridges v. Percell, 1 D. & B., 492.

It is true that in McCracken v. McCracken (88 N. C., 272), it is said that such an interest must not only be evidenced by writing, but that it can “only be made effectual by deed ;” but by the use of this language the learned Justice who delivered the opinion was evidently referring to the subject in its legal aspects, as it is well settled that an agreement upon a valuable consideration to confer an easement will be effectuated in equity, provided it be in writing, and this without reference to the presence of a seal. Railroad v. Battle, 66 N. C., 546; Railroad v. Railroad, 104 N. C., 658. So too, a covenant, though not technically “running with the land,” may nevertheless be sometimes binding in equity to the extent of fastening a servitude upon real property. Pom. Eq., 689; Duke of Bedford v. Trustees, 2 M. & K., 517.

Such .is the character of the agreement before us; but the important question presented, is how long is this easement or servitude to continue? An interest like this, being within the statute of frauds, is created in the same manner as an interest in the land itself, and hence it would seem that if there be a grant of an easement, there must be words of inheritance if it is intended that the estate shall endure beyond the life of the grantee. So, on the other hand, if there be a contract to confer an easement, it will ordinarily be governed by the same principles as are usually applied to contracts for the sale of real estate. Thus, if one contract to sell land to another, and there be no words of restriction, it is implied that an estate in fee is intended, and specific performance will accordingly be decreed. Likewise, if one agree to confer an easement, and from the nature of the contract and its subject-matter there is nothing to show that it is to be restricted to the life of either party, there is an implication that the grant is to be co-extensive with the uses apparently contemplated by the parties. In our case it is contended that there are words of restriction, to-wit: “This agreement to remain good so long as the said Turner keeps up a mill at the AVagoner place.” In opposition to this view, the defendants rely upon the case of Merriman v. Russell, 2 Jones’Eq., 470. In that case the “articles of agreement” contained no words of inheritance, but simply the following language, viz., “ bargained and sold so much of my land lying on Hooper’s Creek, in the county and State aforesaid, as will conveniently carry the water to a saw-mill so as to be to his (W. R. Gash’s) profit and advantage.” The Court speaks of this writing as a grant, and Peakson, J., in delivering the opinion, said : “ There are no words of limitation, and by the rule of the common law in reference to a grant of land, only an estate for the life of the grantee would pass. Here the rule of construction comes in again. As' the professed purpose is to convey water to a mill, of course it was the intention that the supply of water should be kept up as long as the party wished to operate the mill. Few would be at the expense of erecting a mill if the supply of water depended upon the uncertainty of life. We think there was a base or qualified fee granted in this easement, and that Gash, his heirs and assigns are entitled to it so long as they continue to operate the mill.”

Plowever just may be the criticism upon the resort to construction in the above case and thereby supplying words of inheritance (if, indeed, the instrument was considered simply in its legal character as a grant), it is very clear that the objection cannot be urged in the present instance, where the agreement is entirely executory in its nature. At all events, the case of Merriman (supra) lends us valuable aid in solving the question now before us. In that case the easement was in so much of the land “ as will conveniently carry the water to a saw-mill so as to be to his (W. R. Gash’s) profit and advantage.” Why should not these words be considered as equally restrictive as those used in the present contract, viz., “This agreement to remain good so long as the said Turner keeps up a mill at the Wagoner place.” In one case, the easement is to be to “ his (the grantee’s) advantagein the other, so long as “ Turner keeps up a mill,” etc. It would seem that the privilege granted was as personal in one case as in the other, but admitting that there is a shade of difference between them, yet this must surely disappear when the contract is viewed in the light of the reasoning of the opinion in the case above mentioned. “ Few (says the Court) would be at the expense of erecting a mill if the supply depended upon the uncertainty of life,” and so, too, we may remark in this case, that few would erect a mill-dam and other improvements if its enjoyment was to be contingent upon the duration of the life of one of the parties.

In consideration of the foregoing reasons, and in the absence of plain restrictive language, we conclude that it was not the intention of the parties that Turner was to have a mere personal right to flood the land of Hall, but that the easement or servitude descended with the land to the heirs of Turner, who have, in equity, a base, qualified or determinable fee therein.

But here we are confronted with the case of Commissioners v. Kesler, 67 N. C., 413, in which PeaesoN, C. J., speaks of a base or qualified fee as an “ obsolete estate, which has never been in force or in use in this State.” It is impossible to reconcile the conflicting utterances of that distinguished jurist upon this subject. Whenever a fee is so qualified as to be made to determine, or liable to be defeated, upon the happening of some contingent event or act, the fee is said to be base, qualified or determinable. Tiedman R. P., 44. This definition, in a general sense, comprehends a fee upon condition, a fee upon limitation, and a fee conditional at common law. Some authors apply the term dase fee solely to limitations of the last-named class (Tiedman Real Property, supra); and these having been converted into estates tail by the statute de donis, and these latter by our statute into fees simple, it would of course follow that if the term “ base fee ” is exclusively applicable to a fee conditional, as it was technically known at common law, it no longer exists in this State. Blaclcstone’s classification is different (2 vol., 110), and there is some confusion in the ancient authorities upon the subject. Practically, however, in modern times, the terms base, qualified or determinable fees, are applied to either of the estates above mentioned. Mr. Wash-burn (1 vol., 77) thinks that the term determinable fee is “ more generic in its meaning, embracing all fees which are liable to be determined by some act or event expressed on their limitation to circumscribe their continuance or inferred by law as bounding their extent.” See, also, 1 Preston Est, 466; Seymour’s Case, 10 Rep., 97. The term qualified fee is thought to be preferable by Mr. Minor, 2 Inst., 86. By whatever name it may be called, it is plain that except in the case of technical fees conditional at common law, the limitations we have mentioned may still be made when not opposed to public policy. It will be observed that in Kes-ler’s case the decision was made to turn chiefly on the ground of public policy, and because apt words of limitation were not employed. In that very decision the existence of a base or qualified fee is recognized in the case of the Cherokee tribe of Indians. But, however broad may be the language quoted, we have no idea that it was the purpose of the Chief Justice to say that the limitation expressly defined by him as a base or qualified fee in Merrimon’s case could not be made in North Carolina. Such limitations are not infrequent in this and other States (2 Wash. R. P., 4), and we are not prepared to adopt a view which leads to such a revolution in the law of limitations of real property.,, We are, therefore, of the opinion that Turner and his heirs took, in equity, an easement to overflow the land of Hall, determinable when they ceased to keep up the said mill. In this respect it is a limitation. But it is to be observed that this base, qualified or determinable fee (we prefer the term qualified) is liable to be defeated by the failure of Turner “ to allow the said L. W. Hall as much woodland along the line fence on the south side of the river.” In this particular, the estate in the easement is an estate upon condition, and the condition is, in effect, that Hall is to be allowed to use as much land on the south side of the river as is equal to the land which is flooded by the maintenance of the dam at the height of nine feet. This includes not only the land actually flooded, but all that is damaged and rendered unfit for cultivation by sobbing. Cagle v. Parker, 97 N. C., 271. It seems that soon after the execution of the agreement, Hall was putin possession of about four acres, and continued to occupy it until the death of Turner. It is insisted that the plaintiffs are restricted to this particular number of acres. This may be so in some cases, as, for instance, where a, right-of-way is granted; if it be once located it cannot be changed. It may also be true of contracts generally of this character, but we do not think that this particular contract is susceptible of such a construction. No provision is made for the ascertainment of the land, nor is there anything to show that the parties intended to fix upon any certain quantity as a final consideration of the easement. Had they so intended, they would doubtless have provided for it in the agreement. The words are strict words of condition, and as applied to this case they constitute a condition subsequent. It was evidently the purpose of the parties that Hall should use as much of Turner’s land as would equal the quantity flooded by the dam, and that this agreement was to be carried out in good faith and in view of the exigencies of the future. If the four acres taken possession of by Hall was to be in full satisfaction for the easement, the contract should have so stipulated. The agreement means that so long as Turner, his heirs or assigns, keep up the mill they are entitled to the easement, provided they permit Hall and his heirs or assigns to enjoy an equal quantity of land on the south side of the river. If they refuse to perform this condition, the plaintiffs are entitled to a decree declaring that the easement is at an end. As we have indicated, we think that Hall was not restricted to the four acres, and in this view the third issue (involving an inquiry as to the quantity of land flooded) should have been submitted to the jury. If it should be found that more than the four acres is flooded and sobbed, and thus rendered unfit for cultivation by the maintenance of the dam at the height of nine feet, the defendants must “allow” the plaintiffs the use of an equal quantity of land. It was this uncertain and variable feature of the agreement that seemed at the outset so novel to us, and it is because of this that the plaintiffs pray that the agreement be declared void. As, however, the contract has been executed by the defendants by the erection of permanent improvements, and as it does not contemplate a conveyance of any land, but simply a right to occupy it, we think that it would be inequitable to make such a decree until it is apparent that the defendants are either unwilling, or by their conduct have put it out of their power, to perform the condition. The fact that the land of Turner has been mortgaged does not of itself work a forfeiture, for this does not happen until there has been an actual disturbance of the possession of the plaintiffs. As to the four acres, the morigagee is affected with constructive notice of the claim of the plaintiffs, and takes subject to their right to use the same. If the plaintiffs should be allowed the use of an additional quantity of land, and the mortgagee has had no actual notice, then he would take such additional land free from any claim of the plaintiffs, and if, by reason of such mortgage, the plaintiffs are ousted, there would then be clearly a breach of the condition, and the easement of the defendants, at the election of the plaintiffs, would be forfeited.

If, upon another trial, it be found that more than four acres are flooded and sobbed, then the defendants should submit to the appointment of commissioners to lay off and set apart sufficient land of the defendants for the use of the plaintiffs as will meet the requirements of the contract as interpreted by us.

It is said that there is no allegation that the defendants have declined to allow the plaintiffs the relief we have indicated. This is a mistake, as the plaintiffs expressly allege that more than four acres have been flooded, and they pray that if the agreement is not declared void, “ the quantity of land damaged be ascertained and the same quantity set apart to the plaintiffs south of the river, if said dam shall not exceed the height allowed in the agreement.”

The answer, in effect, denies that the plaintiffs are entitled to any larger quantity than the said four acres.

In view of the peculiarity of the case, we are not surprised at ihe ruling of his Honor, but after much consideration we are of the opinion that, for the reasons given, there should be a new trial.

Error.