Town of Morganton v. Hudson

177 S.E. 169, 207 N.C. 360, 1934 N.C. LEXIS 468

• Court: Supreme Court of North Carolina
• Decided: November 21, 1934
• Status: Published

Opinion

BbogdeN, J.

The situation is this: The Hutton & Burbonnais Company owns a tract of land in Burke County. The town of Morganton owns and operates a municipal water supply in said county, and bas duly condemned and now owns an easement in and over a portion of said 'tract of land for tbe protection of its said water supply and of the health of its citizens. It is alleged in the complaint and admitted by the demurrer that the defendant has unlawfully and wrongfully entered upon that portion of land constituting an easement of the town, and has cut and continues to cut and remove valuable timber from.the premises, and that such trespass not only interferes with the enjoyment of the easement but constitutes a menace to the health of the inhabitants of the town.

This fact status produces the following question of law: Can the owner of the easement and the owner of the land maintain a joint action for damages heretofore accrued and at the same time restrain further trespass upon the land by the defendant? The law answers the inquiry in the affirmative.

C. S., 7116, et seq., prescribes certain regulations and supervision with respect to watersheds. C. S., 7123, provides certain regulations to be observed by persons residing or owning property on a watershed. It does not appeal', however, that the defendant resides or owns any property on the watershed in question, but, on the contrary, it is specifically alleged that the plaintiffs own the fee and the easement superimposed thereon by a condemnation proceeding.

An easement is an interest in land, and it has been held by this Court that a tenant and an owner may be properly joined in an action for trespass or remainderman and life tenant. See Balcum v. Johnson, 177 N. C., 213, 98 S. E., 532; Nobles v. Nobles, 177 N. C., 243, 98 S. E., 715; Tripp v. Little, 186 N. C., 215, 119 S. E., 225; Gruber v. Ewbanks, 197 N. C., 280, 148 S. E., 246; Combs v. Brickhouse, 201 N. C., 366.

Both plaintiffs have an interest in the land and the complaint states facts sufficient to ward off a demurrer.

Reversed.