Frost v. Robinson

333 S.E.2d 319 (1985)

Lawrence Y. FROST and wife, Helen M. Frost v. J.F. ROBINSON, Willaree B. Robinson, William F. Berthiez, and Brigitte Erdmann Berthiez.

No. 8424SC1097.

Court of Appeals of North Carolina.

August 20, 1985.

*320 Harrell and Leake by Larry Leake, Asheville, for plaintiff-appellees.

Briggs and Ball by Bruce B. Briggs, Mars Hill, for defendant-appellants.

PHILLIPS, Judge.

This suit challenges the right of the defendants Robinson to use, or interfere with the use of, any part of a 20-foot wide alley or driveway, the center line of which is the property line between two lots owned by the plaintiffs and two lots owned by the defendants Berthiez. The driveway starts at a public street and extends along the common boundary linethe eastern side of plaintiffs' property and the western side of the Berthiez propertya distance of approximately 366 feet. The lots, acquired by plaintiffs and the defendants Berthiez at different times between 1975 and February, 1981, came to them from or through a common source, and each deed received contains a provision relating to the driveway similar to the following:

ALSO conveyed appurtenant to the above described tract of land is a perpetual easement for a roadway a width of 20 feet, extending 10 feet on each side of the Northwest margin of the above described tract of land. This easement is to be jointly used and maintained by Grantees herein and the adjoining landowners to the easement, their heirs and assigns.

Immediately behind the lots of the defendants Berthiez is a tract of land owned by the defendants Robinson, who are undertaking to convert it into a 23-unit housing development. The tract has no access to a public street and in August, 1981 the Berthiezes deeded to the Robinsons a 30-foot wide easement along the entire western boundary of their lots, 10 feet of which is the western half of the 20-foot wide alley or driveway earlier created. The purported easement runs from the public street to the northern boundary line of the Robinson's property; and in attempting to construct a roadway along it to their housing development the Robinsons began to use and alter parts of the alley or driveway and plaintiffs sued to enjoin them. Thereafter, the defendants Robinson moved for summary judgment and upon the motion being heard the court entered summary judgment for the plaintiffs and permanently enjoined the Robinsons from using or interfering with the use of any part of the 20-foot alley or driveway.

The judgment appealed from is in accord with long-established law and we affirm it. The alley or driveway in question, created for the stated purpose of serving only the four lots owned by the plaintiffs and defendants Berthiez, is an appurtenant easement, which cannot be conveyed separate from the land to which it is appurtenant. See Black's Law Dictionary 599 (rev. 4th ed. 1968); Davis v. Robinson, 189 N.C. 589, 127 S.E. 697 (1925). An appurtenant easement adheres to the land, cannot exist separate from it, and can be conveyed only by conveying the land involved; its use is limited to the land it was created to serve and cannot be extended to other land or other landowners without the consent of all owners of the easement. Wood v. Woodley, 160 N.C. 17, 75 S.E. 719 (1912). Thus, the defendants Robinson have no interest in the appurtenant easement and have been properly enjoined from interfering with it; for the defendants Berthiez were incapable of conveying an interest in the easement to them and the deed purporting to do so is a nullity.

Affirmed.

BECTON and EAGLES, JJ., concur.