Filed 17 January 1964.
1. Easements 8 — The grantor of an easement of access may not obstruct the easement so as to interfere with its reasonable enjoyment by the grantee, and he has no right to do or permit the doing of anything which results in the impairment of the easement granted.
2. Same — Whether grantor interferred with reasonable use of easement held for jury on evidence. The deed in suit conveyed a lot with an easement in a street to be opened along the side of the lot. The evidence disclosed that the grantor, under the provision of a restrictive covenant in the deed, approved plans for middle, opposite the carport, there was a cut of some six feet, so that a street to be constructed, and that when the street was constructed its grade was approximately even with the lot at each end, but that in the middle, opposite the carport there was a cut of some six fee, so that a driveway useable by automobiles could not be constructed from the street to the carport. Held: The evidence requires the submission to the jury of the question whether the street so constructed afforded reasonable ingress, egress, and regress with respect to plaintiff's lot.
APPEAL by plaintiff from Parker, J., March 1963 Session of NEW HANOVER.
Action for damages for interference with an easement of access.
These facts are established by the pleadings: In 1956 defendant was the owner and developer of a residential subdivision in Wilmington known as Sherwood Forest. On September 19, 1956 he sold plaintiff a lot fronting on East Lake Shore Drive in the subdivision. At that time the defendant exhibited to plaintiff a plat showing the general layout of Sherwood Forest and agreed that a street would be constructed along the south side of the lot. The deed which defendant delivered granted plaintiff an easement in and to that street in the following language:
"The parties of the first part hereby give, grant, and convey unto the said parties of the second part a right-of-way and easement of egress, ingress and regress over and upon that said road or roads, adjoining the above described lot and bounded and described as follows." (Description of the street is set out by metes and bounds.)
The deed also contained, inter alia, the following restrictions:
"2. No building shall be located on said lot nearer than fifty (50) feet to the front of said lot and not nearer than ten (10) feet from the side of said lot, or nearer than ten (10) feet from the rear of said lot."
"5. The plans and specifications of all buildings which shall be erected or moved on any lot shall be subject to approval by the developer, and the lot cannot be subdivided without the approval of the developer."
Plaintiff submitted the plans for his house to the defendant who approved them on January 30, 1957. Thereafter plaintiff constructed a house on the lot in accordance with the plans which included a carport on the south side of the house.
At the trial, plaintiff's evidence was sufficient to show the following: His lot fronts west 95 feet on Lake Shore Drive and South 201 feet on Robin Hood Drive. At the time plaintiff submitted his plans to the defendant, it was understood between them that the house was to be located near the center of the lot and that the carport would open to the south on the new road to be constructed (Robin Hood Drive). The house, when completed in July 1957, was situated 70 feet back from Lake Shore Drive, 10 feet from the north property line, and the entrance to the carport was 18 feet from Robin Hood Drive.
At the time of the sale, a dirt road ran from East Lake Shore Drive along the south side of plaintiff's lot, cutting across it at the rear. This road was level with plaintiff's lot but was considerably higher than the lot across the road on the south. As an inducement to the plaintiff to purchase the lot for $2,300.00, defendant pointed out the enhanced value it would have as a corner lot when the new road was opened. They did not discuss the manner in which the road was to be constructed.
Defendant began the construction of Robin Hood Drive about September 18, 1961. Over plaintiff's protest, the road was graded in such a way that there is now a perpendicular drop of from 3 to 6 feet along the south side of the lot. At the entrance to the carport the drop is 6 feet. The dirt removed when the road was graded was used to fill in the lots across the street as well as another low area in the development. The low grade of Robin Hood Drive has made the plaintiff's carport inaccessible. Any driveway constructed to it from the street would have to be so steep that a car would drag upon entering the carport. If the carport is ever to be used, it must be rebuilt so that it can be entered from the east over a drive constructed from the rear of the lot. This construction would cost $1,121.85. As a result of the grading of Robin Hood Drive the market value of plaintiff's property has been reduced $2,750.00. On August 30, 1963 the State Highway Commission took over the maintenance of Robin Hood Drive.
At the conclusion of plaintiff's evidence, the defendant's motion for judgment as of nonsuit was allowed and the plaintiff appealed.
Poisson, Marshall, Barnhill Williams for plaintiff appellant.
Aaron Goldberg and John J. Burney for defendant appellee.
MOORE, J., concurring in result.
PARKER and BOBBITT, JJ., join in concurring opinion.
At all times pertinent to a decision of this case Robin Hood Drive was not a public road. While the State Highway Commission is now maintaining it, the rights and liabilities of the parties are to be determined by their deed and not the rules applicable to a governmental agency when it opens or changes the grade of an existing street or highway. See Smith v. Highway Commission, 257 N.C. 410, 126 S.E.2d 87; Jenkins v. Henderson, 214 N.C. 244, 199 S.E. 37; Wood v. Land Co., 165 N.C. 367, 81 S.E. 422; Cf. Bennett v. R. R., 170 N.C. 389, 87 S.E. 133; McGarrity v. Commonwealth, 311 Pa. 436, 166 A. 895.
By purchasing a lot within a subdivision with reference to the plat thereof, plaintiff acquired the private right to have each and all of the streets shown on the plat kept open or available for opening as occasion might require. Steadman v. Pinetops, 251 N.C. 509, 112 S.E.2d 102; Somersette v. Stanaland, 202 N.C. 685, 163 S.E. 804. Here, however, plaintiff is not relying upon any rights which he might share in common with other property owners in the subdivision or upon any implied right of access as an abutting landowner. By his deed from defendant, plaintiff acquired a specific easement of access in the road adjoining his lot on the south. Access from the street was not limited to any particular portion of the lot.
One, who by his deed has specifically granted to another an easement of access, may not obstruct the easement in such manner as to prevent or to interfere with its reasonable enjoyment by his grantee. The grantor is obligated to refrain from doing, or permitting anything to be done, which results in the impairment of the easement. 17 A. Am.Jur., Easements 137.
It is apparent that the parties contemplated direct, practical, and reasonable access to all parts of the lot from the street whenever it was opened. Such use in a residential development today necessarily includes access by automobile. At the time plaintiff purchased the property in question a dirt road, level with the lot, ran from East Lake Shore Drive along a portion of its south line. Prior to the construction of Robin Hood Drive defendant approved house plans for the plaintiff which showed that access to the carport could be had only from that street. The fact that plaintiff's property would eventually become a corner lot, with access from two streets, was one of the material inducements of the sale. Obviously a second street would add nothing to the value of a lot if, when opened, it provided only a jumping off place for children to disport themselves.
Under the evidence in this case it is for the jury to say whether the defendant constructed Robin Hood Drive so as to afford reasonable ingress, egress, and regress with respect to the plaintiff's lot. If he did not, the plaintiff would be entitled to recover the depreciation in the market value of his lot which was proximately caused by his failure to provide such access.
The judgment of nonsuit is