Spruill v. NixonAnnotate this Case
78 S.E.2d 323 (1953)
238 N.C. 523
SPRUILL et al. v. NIXON.
Supreme Court of North Carolina.
November 4, 1953.
*326 Bailey & Bailey, Carl L. Bailey, Plymouth, for plaintiffs appellees.
W. L. Whitley, Plymouth, for defendant appellant.
Two questions, determinative of this appeal, are here presented for consideration and decision. 1. Was an easement in the road across the land, now owned by defendant, created by implication of law, upon the severance of unity of title by the common grantor, Axie Lane, as set forth in the facts found by the trial court? 2. If so, was such easement extinguished by the judgment in the civil action instituted by T. E. Ainsley, immediate predecessor in title of present plaintiff, against Cecil Nixon the present defendant?
In the light of applicable principles of law, applied to the facts found by the trial judge, this Court holds that the first question is properly answered in the affirmative, and that the second merits a negative answer.
As to the first question: "It is a well settled rule of law that where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude at the time of the severance is in use and is reasonably necessary to the fair enjoyment of the other part of the estate, then upon a severance of ownership, a grant of the right to continue such use arises by implication of law * * * The underlying basis of the rule is that unless the contrary is provided, all privileges and appurtenances as are obviously incident and necessary to the fair enjoyment of the property granted substantially in the condition in which it is enjoyed by the grantor, are included in the grant." 17 Am.Jur. 945, Easements, Implied, § 33.
There are three essentials to the creation of an easement by implication upon severance of title: (1) A separation of the title; (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. 17 Am.Jur. 948, Easements, § 34.
These principles as to creating easements by implication of law upon severance of unity of title has been recognized, and applied in numerous cases in North Carolina. See Bowling v. Burton, 101 N.C. 176, 7 S.E. 701, 2 L.R.A. 285; Carmon v. Dick, 170 N.C. 305, 87 S.E. 224; Ferrell v. Durham Bank & Trust Co., 221 N.C. 432, 20 S.E.2d 329; Packard v. Smart, 224 N.C. 480, 31 S.E.2d 517, 155 A.L.R. 536; Neamand v. Skinkle, 225 N.C. 383, 35 S.E.2d 176.
Now as to the second question: The judgment referred to was entered by consent. It is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records with the approval and sanction of a court of competent jurisdiction, and that such contracts cannot be modified or set aside without the consent of the parties thereto, except for fraud or mistake, and that in order to vacate such judgment an independent action must be instituted. See Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209, and cases there cited. See also among other cases: Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; State ex rel. Jones v. Griggs, 223 N.C. 279, 25 S.E.2d 862; Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E.2d 901; Williamson v. Williamson, 224 N.C. 474, 31 S.E.2d 367; Davis v. Whitehurst, 229 N.C. 226, 49 S.E.2d 394; Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794.
In the case in hand the premises set out in the consent judgment in Ainsley v. Nixon is that "this cause comes on now to be adjudged by the Clerk by consent, the parties having agreed upon a settlement of all matters in controversy herein as *327 herein set out". And there is in the entire proceeding no mention of the easement created by implication of law. Hence giving effect to the consent agreement, as stated by the parties then owning the lands, it seems manifest that the parties did not intend that the judgment should affect the easement created by implication of law by the severance of unity of title at the common source.
All assignments of error have been duly considered, and error in them is not made to appear.
Hence the judgment below is