McGee v. McGee

Court of Appeals of North Carolina

McGee v. McGee

233 S.E.2d 675, 32 N.C. App. 726, 1977 N.C. App. LEXIS 2047

CourtCourt of Appeals of North Carolina

DecidedApril 6, 1977

Docket765SC804

StatusPublished

Cited by7 cases

This text of 233 S.E.2d 675 (McGee v. McGee) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McGee v. McGee, 233 S.E.2d 675, 32 N.C. App. 726, 1977 N.C. App. LEXIS 2047 (N.C. Ct. App. 1977).

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Opinion

ARNOLD, Judge.

In Dorman v. Wayah Valley Ranch, Inc., 6 N.C. App. 497, 170 S.E. 2d 509 (1969), this Court reiterated the three requirements of an easement by implication: (1) title shall have been separated between two tracts, one dominant and one servient; (2) before the separation took place, the use which gave rise to the easement shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent; and (3) the easement shall be necessary to the beneficial enjoyment of the land granted or retained. Also, see Webster, Real Estate Law in North Carolina, § 282 (1971).

With regard to the third requirement that the easement be “necessary” to the beneficial enjoyment of the land granted, an easement implied upon severance of title is necessary if it is reasonably necessary to the full and fair use of the property. It need not be absolutely necessary. Smith v. Moore, 254 N.C. 186, 118 S.E. 2d 436 (1961).

Defendants concede that there was a separation of title. However, they contend that there was no evidence to show (1) *729 that any use of the roadway prior to the separation was so long continued or manifest as to show that it was meant to be permanent, and (2) that the roadway is necessary to the beneficial enjoyment of plaintiff’s land. We disagree. There is clearly evidence to support the judge’s findings that the road has existed for sixty or more years, and that the existence of the road for ingress and egress to plaintiff’s property was so manifest that it was meant to be “a permanent easement and an appurtenance to the land conveyed ... to plaintiff.”

There is also evidence to support the finding that the easement, or the road, was reasonably necessary to the full and fair enjoyment of the land. An easement is reasonably necessary if it is so necessary to the full and fair enjoyment of the property that it appears that the grantor intended that the grantee have the easement. Smith v. Moore, supra; Potter v. Potter, 251 N.C. 760, 112 S.E. 2d 569 (1960). The presence of a second or alternate way onto the property is not conclusive proof that an implied easement is unnecessary. Smith v. Moore, supra. Where, as here, the second route is totally unsuitable, the easement is reasonably necessary. It is not reasonable to require plaintiff to tear down a building in order to make the alternate route suitable.

The findings of fact by the trial court are supported by competent evidence and the judgment is

Affirmed.

Chief Judge Brock and Judge Parker concur.

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ARNOLD, Judge.

In Dorman v. Wayah Valley Ranch, Inc., 6 N.C. App. 497, 170 S.E. 2d 509 (1969), this Court reiterated the three requirements of an easement by implication: (1) title shall have been separated between two tracts, one dominant and one servient; (2) before the separation took place, the use which gave rise to the easement shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent; and (3) the easement shall be necessary to the beneficial enjoyment of the land granted or retained. Also, see Webster, Real Estate Law in North Carolina, § 282 (1971).

With regard to the third requirement that the easement be “necessary” to the beneficial enjoyment of the land granted, an easement implied upon severance of title is necessary if it is reasonably necessary to the full and fair use of the property. It need not be absolutely necessary. Smith v. Moore, 254 N.C. 186, 118 S.E. 2d 436 (1961).

Defendants concede that there was a separation of title. However, they contend that there was no evidence to show (1) *729 that any use of the roadway prior to the separation was so long continued or manifest as to show that it was meant to be permanent, and (2) that the roadway is necessary to the beneficial enjoyment of plaintiff’s land. We disagree. There is clearly evidence to support the judge’s findings that the road has existed for sixty or more years, and that the existence of the road for ingress and egress to plaintiff’s property was so manifest that it was meant to be “a permanent easement and an appurtenance to the land conveyed ... to plaintiff.”

There is also evidence to support the finding that the easement, or the road, was reasonably necessary to the full and fair enjoyment of the land. An easement is reasonably necessary if it is so necessary to the full and fair enjoyment of the property that it appears that the grantor intended that the grantee have the easement. Smith v. Moore, supra; Potter v. Potter, 251 N.C. 760, 112 S.E. 2d 569 (1960). The presence of a second or alternate way onto the property is not conclusive proof that an implied easement is unnecessary. Smith v. Moore, supra. Where, as here, the second route is totally unsuitable, the easement is reasonably necessary. It is not reasonable to require plaintiff to tear down a building in order to make the alternate route suitable.

The findings of fact by the trial court are supported by competent evidence and the judgment is

Affirmed.

Chief Judge Brock and Judge Parker concur.

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233 S.E.2d 675, 32 N.C. App. 726, 1977 N.C. App. LEXIS 2047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgee-v-mcgee-ncctapp-1977.

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