#### B. B. MERONEY v. CHEROKEE LODGE, No. 146, A. F. AND A. M.

(Filed 21 December, 1921.)

1. Easements — Implication—Necessity—Deeds and Conveyances — Severance of Title.

Where there is an easement upon the lands of the owner in continuous necessary use by the lessee, having a right thereto, of such character as to be open and visible or readily seen or known, upon the severance of the title it will remain an easement upon the land of the purchaser upon which it is situated during the continuance of the lease without the use of the word “appurtenances” therein.

2. Same — Presumptions.

To create an easement by implication under a lease upon the severance of the lands by the owner, the intention of the parties will be presumed that the lessee of the premises shall continue to enjoy such right or easement when it is necessary to the beneficial use of the premises, and to its convenient and comfortable enjoyment, as it existed at the time of the execution of the lease, and when known and visible.

3. Same — Outside Stairways.

The owner of lands with a building thereon leased an upper story thereof to be used by a fraternal order for its place of meeting, with the only means of ingress and egress by a stairway on the outside, and then conveyed the title to a part of his lands whereon the stairway was situate at the time of the lease and the severance of the title: Held, the lessees held an easement by implication in the lands severed, for the necessary enjoyment of the leased premises.

4. Deeds and Conveyances — Leases—Interpretation—Easements.

In construing a written instrument of lease, the whole thereof will be considered in order to effectuate the intention of the parties as gathered' from the words employed; and where, in a lease of land, the word “appurtenances” has inappropriately been used only in the warranty, it may be considered as bearing upon the intention of the lessor to pass an easement when construed with other appropriate words appearing in the writing.

Appeal by plaintiff from Long, J., at tbe Spring Term, 1921, of Cherokee.

Tbis is an action to try tbe right or title to an easement, and to remove a cloud wbicb rests upon it because of an adverse claim, wbicb is asserted by tbe defendant.

In tbe year 1908, and prior thereto, A. A. Fain owned a lot in tbe town of Murphy. Upon one part of tbe lot there was a three-story brick building, tbe third story of wbicb was leased to tbe defendant Cherokee Lodge, at wbicb time access to tbe third story was by means of a stairway on tbe outside of tbe building, over tbe vacant part of tbe lot adjoining tbe same, and wbicb was owned by A. A. Fain, wbicb led to a ball on tbe second floor of tbe building, and thence up an inside stairway in tbe ball to tbe third story.

*740On 7 July, 1908, while the defendant Cherokee Lodge had the third story leased, and was using the same as a Masonic hall, access thereto being by said stairways, A. A. Fain and wife conveyed the third story of the building, “together with the right to keep, use, and enjoy a stairway, substantially as now placed in the building, with full, free, and proper ingress, egress, and regress to said third story, etc., to defendant Cherokee Lodge, and contracted and agreed that their heirs and assigns shall keep up and maintain, at their own expense, the stairways in the building leading to the third story.”

From the making of the deed in the year 1908, the Masons have occupied the third story of the building under it, and have at all times used the stairways, as above described, and are now using the same. A. A. Fain continued to own the adjoining lot, and the lot on which the three-story brick building stood, until a short time before the commencement of this action, when he sold both lots, and as defendant contends, subject to the easement or right of defendant to use the stairway over the vacant lot. From the time the third story, together with the right of ingress, egress, and regress by way of said stairways was conveyed by A. A. Fain to the Cherokee Lodge, in the year 1908, it was understood by all parties,, as defendant contends, that the lodge was the owner of an easement in said stairway over the adjoining lot, and this ownership was not questioned, but was recognized, until some time in the year 1920, being more-than twelve years after the conveyance was made to the lodge by A. A. Fain, and about two years after plaintiff bought the vacant lot, and then it was only questioned by the plaintiff, the purchaser of the property to which the easement was attached, and then only after he had failed to make payment of the balance of the purchase price of the lot and the same was advertised under the deed of trust that plaintiff Meroney had given as security for the balance due on the purchase price for the lot, and defendant contends that this question was not at this time made bona fide, but was raised for the purpose of delaying the collection of the purchase money, as plaintiff enjoined the trustee from collecting the-money under the deed of trust. (This not being material.)

It was not disputed that A. A. Fain was the owner of the entire land embracing both lots, when he made the deed to Cherokee Lodge in 1908, and there was no dispute that the stairway in question was exactly the same when the deed was made in 1908 as it was on the day plaintiff' brought his action, and it was not denied that the stairway had been kept and maintained all the time in the same place, manner, and condition as when the conveyance was made in the year 1908, nor that the defendant, under the deed, took charge of the stairway and used the same all the time since the deed was made, and that it is now using the same, and that plaintiff bought the vacant lot in 1918 with said stairway *741upon it, and with, the knowledge that the defendant was using the stairway in the same condition as it was when Fain conveyed the property.

The following are the provisions in the deed to the defendant of A. A. Fain and wife, under whom plaintiff claims both lots: This deed conveys the land in fee, “together with the right to keep, use, and enjoy a stairway substantially as now constituted in said building, and full, free, and proper ingress, egress, and regress to said third story; the unreserved and unrestricted right to have, use, and enjoy the third story of any building that may in future be erected on said lot, with said rights of ingress, egress, and regress thereto and therefrom; and also the full and unrestricted right to have, erect, use, maintain, and enjoy the second story of any building in the future erected on said lot thereon of less height than, three stories by the grantors, their heirs or assigns, including the right to build above any building that may be erected on said lot one story, for a lodge room and ante-rooms, with full rights of egress, ingress, and regress as aforesaid.” That they are seized in fee of said premises, and have a right to convey the same in fee simple; that the same are free from incumbrances, that they will, and their heirs, administrators, and executors shall forever warrant and defend the title to the said land and premises, with the appurtenances, unto the said party of the second part, heirs and assigns, against the lawful claims of all persons whomsoever. And it is covenanted and agreed between the parties to these presents that the said parties of the first part, and their heirs and assigns, shall keep up and maintain, at their own expense, the stairways in said building leading to said third story, and suitable and convenient stairways in any building in future erected on said lot.”

It was agreed by the parties that the presiding judge might hear the ease without the aid of a jury, and it was stated by counsel for both parties that the matter to be tried was a question of law for the court to decide, but the judge stated that he would have a jury impaneled to the end that he might submit an issue of fact, if any should arise.

The court rendered the following judgment:

This cause coming on to be tried by the court and a jury, counsel for the parties make the following admissions: “It is admitted that on 7 July, 1908, A. A. Fain was the owner of the lands described in plaintiff’s complaint. It is further admitted that A. A. Fain was the owner of the adjoining lot known as the ‘Hardware Lot,’ described in the deed from A. A. Fain and wife to Cherokee Lodge, No. 146, dated 7 July, 1908, which was duly recorded. Defendant’s counsel say they admit that the plaintiff owns the lot described in the complaint, subject to the easement in the stairway set up in the defendant’s answer.” It was further agreed that the court might find the facts and apply the law and render judgment, but the court stated that it would submit an issue to *742tbe jury if tbe court saw fit to do so, and did submit tbe following issue, viz.: “1. Does tbe defendant own an easement in tbe stairway on tbe lot described in tbe complaint?” and, under instructions of tbe court, after bearing tbe evidence and argument, and, in -view of said admissions, tbe jury having answered tbe issue “Tes”; it is now, on motion of attorneys for defendant, considered and adjudged by tbe court, tbat tbe defendant Cberokee Lodge, No. 146, A. E. and A. M., is tbe owner of tbe easement in tbe stairway on tbe land described in tbe complaint, as set up in tbe answer in tbis cause, and is entitled to use and enjoy said easement under its right and title thereto, tbe same not being a cloud on plaintiff’s title, and it is further adjudged tbat tbe defendant have and recover its costs in tbis action incurred, to be taxed by tbe clerk.

Plaintiff excepted and appealed.

Dillard & Hill for plaintiff.

M. W. Bell and J. D. Mallonee for defendant.

Walker, J.,

after stating tbe case: There was evidence in tbis case which very strongly tended to show tbat tbe lodge never paid any rent nor gave any other consideration for tbe use of tbe stairway, but has continued to use it from tbe beginning without let or hindrance. W. W. Woodbury testified: “There is no other means of ingress and egress to and from tbe lodge other than tbis stairway.. It is about four feet wide.” There was no other way to and from tbe third story of tbe building which defendant bad any right to use except tbe stairway in question. There was an elevator in tbe building from tbe ground floor to tbe second story, but it belonged to tbe hardware company, and was not, in law or in fact, usable by tbe defendant as a way, or part of tbe way up and down. Tbe plaintiff himself testified: “I knew tbe lodge bad been using tbe stairway, and bad used it as a member myself. I brought suit to restrain tbe sale of tbat lot under deed of trust to Jarrett, after default on my part as to tbe note, which I refused to pay when due. Up to tbat time I bad never made any claim to tbe lodge about tbe stairway, and bad not spoken to any member or officer of tbe lodge with reference to quitting its use. I set up tbis claim last year. The second consideration in bringing tbis suit is to obtain a diminution in tbe purchase price. I made no demand upon any one for tbat stairway until after my property was advertised for sale.” It will be seen, therefore, tbat tbe present claim is tbe result of an afterthought, tbe plaintiff having no real excuse, in' reason or justice, for bis present attitude. But we deem it-clear tbat bis position, now assumed, is indefensible in law, and, besides, tbat bis conduct has been such, with reference to tbe use *743of tbe stairway, as to indicate tbat be believed all tbe time, and until be was pressed for tbe payment of a debt, tbat be bad, by bis deed and tbe outward, visible, and undeniable circumstances and surroundings attending its execution, conveyed tbe easement for tbe use of tbe stairway witb tbe land itself, and as incident and appurtenant thereto. Tbe third story of the building would have been worthless to tbe defendant, without tbe privilege of using tbe only way for ingress and egress, .which was essential to its reasonable enjoyment. ¥e held in Carmon v. Dick, 170 N. C., 305-308, tbat there are three things necessary to tbe creation of an easement upon the severance of an estate, where tbe owner, before tbe severance, made or used an improvement in one part of tbe estate for tbe benefit of another. First, there must be a separation of tbe title; second, it must appear that before tbe separation took place tbe use which gives rise to tbe easement shall have been so long continued and so obvious or manifest as to show tbat it was meant to be permanent; and third, tbat tbe easement shall be necessary to tbe beneficial enjoyment of tbe land granted or retained. An easement which is apparent and continuous, such as a drain or other artificial watercourse, a thing which is continuous in its service, and which does not require any active intervention of tbe owner for its continuance, and can always be seen or known on careful inspection, will pass on tbe severance' of two tenements as appurtenant, without tbe use of tbe word “appurtenances” ; but an easement which is not apparent and continuous, such as a right of way, which is enjoyed at intervals, leaving no visible sign, in tbe interim of its existence, will not pass unless tbe grantor uses language sufficient to create tbe easement de novo. Jones on Easements, see. 145; Kelly v. Dunning, 43 N. J. Eq., 62; 26 Pa. St., 438. It was said by Justice Earle tbat there is a distinction between an easement, such as a right of way or easement used from time to time, and an easement of necessity, or continuous easement, which tbe law recognizes, and it is clear tbat upon a severance of tenements an easement used as of necessity, or in its nature continuous, will pass by implication of law without any words of grant; but witb regard to an easement which is used from time to time only, it will not pass, unless tbe owner, by appropriate language, shows an intention tbat it should pass. Polden v. Bastard, 4 B. & S., 258 (S. C. L. R., 1 Q. B., 156). A way of necessity is founded upon an implied grant, tbe necessity of itself not creating tbe right; but being only a circumstance resorted to for tbe purpose of showing tbe intention of tbe parties, and thereby raising tbe implication of a grant. This right is created by tbe change of ownership of a portion of an estate, tbe latter having attached to it by construction, as an incident, a right of way over tbe ungranted portion, this being presumed *744to have been the intention of the parties. Jones on Easements, see. 304, thus states this view: “This is an application of the maxim that one is always understood to intend, as an incident to a grant, what is necessary to give effect thereto which is in the grantor’s power to bestow. The rule applies when there has been a severance of the property, one portion of which has been rendered inaccessible except by passing over the other or by trespassing on the lands of a stranger. When a landowner conveys a portion of his lot the law will not presume it to have been the intention of the parties that the grantee shall derive no beneficial enjoyment thereof in consequence of its being inaccessible from the highway, or that the other portion shall, for like reason, prove useless to the grantor. This species of right of way, therefore, in the absence of anything to the contrary contained in the deed, becomes an incident to the grant as indicative of the intention of the parties.” As to what should be the degree of necessity in order to create this right by implication based upon the presumed intention of the parties, it was said in Kelly v. Dunning, supra, that the right must be necessary to the beneficial use of the land granted or retained, and to its convenient and comfortable enjoyment, as it existed at the time of the grant; this rule being deemed as eminently reasonable and just, and its adoption as essential, that full effect may be given to the principle of which it is an adjunct. Chancellor Rent said in his Commentaries, at 467: “Some things will pass by the conveyance of land as incidents appendant or appurtenant thereto. This is the ease with a right of way or other easement appurtenant to land. And if a house or store be conveyed, everything passes which belongs to and is in use for it, as an incident or appurtenance.” It was held in Hair v. Downing, 96 N. C., 172-175, that the servitude of the one (tract of land) to the other, existing when both belonged to one owner, remained when the severance was effected by the different conveyances. The easement passed with the legal estate in the tract to which it adhered, and in the like plight was the servient tenement conveyed to the plaintiff, whose rights, especially after full notice, cannot be superior to those of his grantor.

Where one having two tenements, and a gutter from one of them ran over or across the other, sold one tenement to one and the other to another, it was held that the easement and servitude of the gutter passed with the respective estates by the form of the grant. Cope's case, Tear Book, 11 Hen. VIL, 25. So where the owner built an aqueduct from a spring on his land to his dwelling, and granted the dwelling, the easement passed with it. Nicholas v. Chamberlain, Cro. Jac., 121; both of the above cases are cited in Washburn on Easements, with other cases, at page 49 and following. In Gould on Waters, page 354, the doctrine is thus declared: “A grant by the owner of a tenement of part of that *745tenement, as it is then used and enjoyed, passes to the grantee by implication, ... as also those easements which the grantor can convey, and which are necessary to the reasonable enjoyment of the granted property, and have been, and are at the time of the grant, used by the owner of the entirety for the benefit of the granted tenement.” So it is said by another author, that where the terms of a grant are general or indefinite, so that its construction is uncertain and ambiguous, the acts of the parties contemporaneous with the grant, giving a practical construction to it, shall be deemed to be a just exposition of the intent of the parties. Angelí on Water Courses, p. 363, and cases cited in note 1, and among them Jonnison v. Walker, 11 Gray, 426; and Woodcock v. Estey, 43 Verm., 522. The effect of a conveyance of land, with the ■attaching easements, in transferring them, also is ruled in a similar way in Lampman v. Milks, 21 N. Y., 505; the court declaring that the diversion of a natural stream into an artificial channel for relief from overflow, and the land in that condition being sold to different persons, they ■each take their respective estates, benefited or burdened with the easement. The same doctrine is recognized in Shaw v. Etheridge, 3 Jones, 300. The suit there was for obstructing a ditch, and the outflow of water from the plaintiff’s land through it. The defendant, when owning both, had cut the ditch, and then sold the lower tract to. the plaintiff. The court charged that if the defendant obstructed the ditch after he sold to the plaintiff, or if additional obstructions were placed in the ditch so as to impede the flow of water from plaintiff’s land, he was entitled to damages, and this charge was sustained.

These views are substantially stated and approved by this Court in Hair v. Downing, supra, and the principles there applied coincide with those we laid down in Carmon v. Dick, supra, the two cases being closely analogous.

This case is stronger for the defendant, if it is possible for it to be so, than any of the cases we have cited were for the parties therein, who ■claimed the easements by implication. The deed we are considering does not use the word “appurtenances,” in the premises of the deed, but this is not essential to the existence of the easement, under the facts and circumstances of this case, as the easement of using the stairway, for access to and exit from the upper stories of the building, was not only “open and visible” at the time of the conveyance to the defendant, but manifestly intended by the plaintiff to pass with the land as essential to its •enjoyment. It could hardly be more so.

The word “appurtenances” is uséd in the warranty and while this is not the appropriate part of the deed for a conveyance of an easement, it throws light upon the previous clauses of the instrument, if there is ■any ambiguity in them. The modern doctrine, that a deed must be *746construed as a whole, or by spreading it out before us so that we see it by its four corners, was adopted by us many years ago, one of the earlier cases being Kea v. Robeson, 40 N. C., 373, which was later followed by Gudger v. White, 141 N. C., 507, where the rule was exhaustively considered and the former cases fully cited. It was there said that we are required by the settled canon of construction so to interpret it as to ascertain and effectuate the intention of the parties. Their meaning, it is true, must be expressed in the instrument; but it is proper to seek for a rational purpose in the language and provisions of the deed, and to construe it consistently with reason and common sense. If there is any doubt •entertained as to the real intention, we should reject that interpretation which plainly leads to injustice, and adopt that one which conforms more to the presumed meaning, because it does not produce unusual and unjust results. All this is subject, however, to the inflexible rule that the intention must be gathered from the entire instrument, “after looking,” as the phrase is, “at the four corners of it.” And again, that words should always operate according to the intention of the parties, if by law they may, and if they cannot operate in one form, they shall operate in that which by law will effectuate the intention. This is the more just and rational mode of expounding a deed, for if the intention cannot be ascertained, the rigorous rule is resorted to from the necessity of taking the deed most strongly against the grantor. That case was followed by Bryan v. Eason, 147 N. C., 284, where this sensible and liberal canon of interpretation was approved and applied in the construction of three deeds, which were considered as parts of one indivisible transaction, for the purpose of deciding what estate was conveyed thereby. After this came Triplett v. Williams, 149 N. C., 394, and still later on, Beacom v. Amos, 161 N. C., 357, where all the intervening cases are collected and some of them reviewed. Justice Story, in Tiernan v. Jackson, 5 Peters (U. S. S. C.), 58, stated the principle to be that whatever may be the inaccuracy of expression, or the inaptness of the words used in an instrument, in a legal view, if the intention to pass the legal title to property can be clearly discovered, the Court will give effect to it, and construe the words accordingly. Jones on the Law of Real Property asserts that the inclination of many courts at the present day is to regard the whole instrument without reference to formal divisions. The deed is so construed, if possible, as to give effect to all its provisions, and thus effectuate the intention of the parties. When an instrument is informal, the interest transferred by it depends not so much upon the words and phrases it contains as upon the intention of the parties as indicated by the whole instrument. Vol. 1, sec. 568.

If we construe the deed in question under this well established rule, we are of the opinion that the deed, on its face, keeping all of its provisions *747distinctly before us, clearly indicates the intention of tbe parties to have been, at tbe time it was executed, tbat tbe use of tbe outer stairway should pas's to tbe grantee.

We therefore bold tbat the claim of an easement in the stairway is no cloud upon plaintiff’s title, and tbat tbe verdict and judgment were correct.

No error.