{ "id": 8610606, "name": "WINSTON BRICK MANUFACTURING COMPANY v. GEORGE D. HODGIN and EFFIE HODGIN", "name_abbreviation": "Winston Brick Manufacturing Co. v. Hodgin", "decision_date": "1925-12-02", "docket_number": "", "first_page": "582", "last_page": "585", "citations": [ { "type": "official", "cite": "190 N.C. 582" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "158 N. C., 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654881 ], "opinion_index": 0, "case_paths": [ "/nc/158/0161-01" ] }, { "cite": "17 L. R. A. (N. S.), 1018", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "64 N. C., 12", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "97 N. C., 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650049 ], "opinion_index": 0, "case_paths": [ "/nc/97/0271-01" ] }, { "cite": "99 Am. Dec., 354", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "38 Cal., 111", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2246180 ], "opinion_index": 0, "case_paths": [ "/cal/38/0111-01" ] }, { "cite": "107 Atl., 205", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "31 Barb., 548", "category": "reporters:state", "reporter": "Barb.", "case_ids": [ 5038272 ], "opinion_index": 0, "case_paths": [ "/barb/31/0548-01" ] }, { "cite": "13 Hun., 173", "category": "reporters:state", "reporter": "Hun.,", "opinion_index": 0 }, { "cite": "24 Wis., 465", "category": "reporters:state", "reporter": "Wis.", "opinion_index": 0 }, { "cite": "4 R. I., 51", "category": "reporters:state", "reporter": "R.I.", "opinion_index": 0 }, { "cite": "32 Cal., 506", "category": "reporters:state", "reporter": "Cal.", "opinion_index": 0 }, { "cite": "8 L. R. A., 617", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "88 N. C., 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683067 ], "opinion_index": 0, "case_paths": [ "/nc/88/0272-01" ] }, { "cite": "90 N. C., 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686619 ], "opinion_index": 0, "case_paths": [ "/nc/90/0106-01" ] }, { "cite": "161 N. C., 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272107 ], "opinion_index": 0, "case_paths": [ "/nc/161/0650-01" ] }, { "cite": "111 N. C., 577", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "121 N. C., 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653253 ], "opinion_index": 0, "case_paths": [ "/nc/121/0366-01" ] }, { "cite": "133 N. C., 165", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "137 N. C., 186", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "189 N. C., 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/189/0589-01" ] } ], "analysis": { "cardinality": 519, "char_count": 9156, "ocr_confidence": 0.459, "pagerank": { "raw": 1.3853494831175134e-07, "percentile": 0.6413530286900897 }, "sha256": "482fd6fffd7e9c639d2f95540dd7f3a406fd90cbd9b399ee2ac25e25fc0ec36c", "simhash": "1:10ae79556ae208ae", "word_count": 1587 }, "last_updated": "2023-07-14T22:38:29.672014+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WINSTON BRICK MANUFACTURING COMPANY v. GEORGE D. HODGIN and EFFIE HODGIN." ], "opinions": [ { "text": "Vaksee, J.\nThe pleadings disclose an admitted contract between the defendants and the plaintiff in \u201cthat the defendants designated and stipulated a road, a 'way of necessity\u2019 over .tbeir own land, to tbe public highway, the same to be used for the benefit of the plaintiff and described as follows: 'This property will have road platted to Walkertown or paved highway\u2019 \u201d and. defendants allege that ''they provided a roadway and there is still a road to plaintiff\u2019s property.\u201d Plaintiff\u2019s allegation that the defendant closed this \u201cway of necessity\u201d in August, 1923, is d\u00e9nied, 'and the allegations of damages flowing to the plaintiff are also denied. The issues submitted are not objected to and the verdict has eliminated the feme defendant.\nThe appellant assigns error for that the trial court admitted evidence tending to locate a 30-foot road called for in the deed, beginning \u201cat an iron stake, Joshua Sills\u2019 corner\u201d; and stating how this road was closed up and the statement that the plaintiff had no other way out, together with the condition of plaintiff\u2019s brick machine at the time the road was \u25a0closed, and 4 months later, tending to show that 4 months after the \u25a0closing of the road, the machinery was in bad condition, rusty\" because it could not be used for lack of a way to approach the mill-site, and that the plaintiff had orders for brick when the road was closed, and in approximating the loss of plaintiff\u2019s machinery and tools; in stating that defendant Hodgin told plaintiff he was planning to have the railroad make another crossing and have another road by a man\u2019s house on the railroad side, and in declining to allow the defendant to introduce the plat.\nThe phase of these exceptions necessary to be considered now is the contention that the admission of this evidence tended to prove a contract different from that admitted in the pleadings and described \u201cas a road platted to Walkertown or paved highway.\u201d The evidence thus admitted tends to limit the location of the road in controversy to 'the 30-foot road mentioned in the description when the deed refers \u201cto a stake in the east side of a new 30-foot road\u201d; whereas the road declared upon and admitted, is the road which the \u201cproperty will have platted to Walkertown or paved highway.\u201d The description in calling for the new 30-foot road was using the language for the purpose of description, and the parties have admitted that the road which the parties contracted for is that road referred to as going \u201cto Walkerton or paved highway.\u201d The Walkertown highway and \u201cthe paved highway\u201d are the same.\nA grant of a road is the grant of an easement, an incorporeal hereditament. Minor\u2019s Institutes, 2 vol., 18; 2 Blackstone, 35; Cooley\u2019s Blackstone, 458; Tiffany on Real Property (2 ed.), 1198-1304, Pars. 348-363; Mordecai\u2019s Law Lectures, 466.\nAn easement is an interest in land, and is, therefore, within the statute of frauds (C. S., 988), and a contract creating the same must be in writing. Davis v. Robinson, 189 N. C., 589; Hall v. Misenheimer, 137 N. C., 186; Drake v. Howell, 133 N. C., 165; Presnell v. Garrison, 121 N. C., 366; Buckner v. Anderson, 111 N. C., 577; Herndon v. R. R., 161 N. C., 650; Kivett v. McKeithan, 90 N. C., 106; McCracken v. McCracken, 88 N. C., 272; Reise v. Enos (Wis.), 8 L. R. A., 617; North Beach & M. R. Co.'s App., 32 Cal., 506; Foster v. Browning, 4 R. I., 51; Rice v. Roberts, 24 Wis., 465; Cayuga R. R. Co. v. Niles, 13 Hun., 173; Day v. N. Y. Central R. R. Co., 31 Barb., 548. Such easements are within the statute of frauds and cannot be proved by parol. Davis v. Robinson, supra; Ham v. Massasoit Real Est. Co., (R. I.), 107 Atl., 205; Wagner v. Hanna, 38 Cal., 111, 99 Am. Dec., 354.\nHowever, a \u201cway of necessity\u201d arises from the grant which is proved or presumed from prescription (Cagle v. Parker, 97 N. C., 271), usually from mere necessity in using the property conveyed or retained. Therefore, it arises in most cases, by implication, but such implication puts into the terms employed in the grant this way of necessity. Norfleet v. Cromwell, 64 N. C., 12.\nHowever, the parties stipulated for a \u201cway of necessity\u201d to the Walk-ertown highway, their rights thus established are the same as when \u201ca way of necessity\u201d to - the designated highway had been established in inviium. It is the right of plaintiff to pass over defendant\u2019s lands, owned by him 2 February, 1923 (the date of the deed), to the Walkertown highway. The vendor selects the way and if he fails to select, the vendee may select. This way is one of necessity, and therefore, not one of convenience. Mordecai\u2019s Law Lectures, 466; Corea v. Higurea, 17 L. R. A. (N. S.), 1018, with an elaborate note of authorities and principles; Minor\u2019s Institutes, supra; Tiffany on Eeal Property, supra; Blackstone, supra.\nA learned decision of ways of necessity appears in. Lumber Co. v. Cedar Works, 158 N. C., 161. The principles of the foregoing apply to the case at bar with the modification arising from the admission of the creation of the way of necessity in the deed sued on.\nTherefore, it was error to admit evidence tending to locate the road in controversy, except as contemplated in the terms, \u201ca road platted to the Walkertown or paved highway.\u201d Of necessity such a road may be located, according to the evidence, in more than one place, and the contract for such a road would be satisfied when the necessity, and not the convenience, is met.\nThe evidence challenged by the exceptions does not conform to the principles applicable, hence there was error.\nThe other questions may not present themselves in another trial, hence they are not discussed.\nThe judgment entered is reversed to the end that there shall be, in accordance with the principles herein announced, a\nNew trial.", "type": "majority", "author": "Vaksee, J." } ], "attorneys": [ "No counsel for plaintiff.", "J. H. Whicker for defendants." ], "corrections": "", "head_matter": "WINSTON BRICK MANUFACTURING COMPANY v. GEORGE D. HODGIN and EFFIE HODGIN.\n(Filed 2 December, 1925.)\n1. Statute of Frauds \u2014 Deeds and Conveyances \u2014 Right of Ways \u2014 Easements \u2014 Incorporeal Hereditaments.\nThe granting of a right of way by the owner upon his land is of an easement thereon, an incorporeal hereditament, and is required by- the ' Statute of Frauds to be in writing. C. S., 988.\n3. Same \u2014 Prescription\u2014Ways of Necessity.\nA way of necessity arises from a grant proved or presumed from prescription usually from mere necessity in using the land conveyed or retained by the grantor, in most cases construed to come within the terms of the grant.\n3. Same \u2014 Parol Evidence.\nWhere the owner conveys a part of his land without outlet except one designated to a certain public highway, the way so designed will control the vendee\u2019s selection, and parol evidence tending to show a different one is incompetent.\nAppeal by defendant from Foestth Superior Court. Lyon, J.\nAction by plaintiff against defendants to recover damages. Judgment for plaintiff. Appeal by defendant. New trial.\nThe plaintiff alleged that on 2 February, 1923, it contracted, with defendants for the purchase of a tract of land containing 6 acres, which was on said date conveyed to plaintiff by deed in Book 215, p'. 27, of Forsyth County, with the following description: \u201cBeginning at an iron stake, Joshua Sills\u2019 corner, and runs thence N. 88 degrees 00 W., about 382.7 feet to a stake in the east side of a new 30-foot road; thence with said road S. 0 degrees 45 W. about 578.0 feet to a stake; thence S. 88 degrees 00 E., about 505.7 feet to a stake in Joshua Sills\u2019 line; thence N. 5 degrees 30 minutes E., about 90.0 feet to a stone; thence N. 2 dfr grees 00 E., 222.0 feet to a stone; thence N. 2 degrees 00 E., 266.4 feet to an iron stake, the place of the beginning, and containing 6.0 acres more or less. This property will have a road platted to Walkecrtown or paved highway.\u201d\nThe plaintiff also alleged that the defendants designated and stipulated a road \u201ca way of necessity\u201d over their own land to the public highway, the same to be used for the benefit of\u2019 the plaintiff and described as indicated in the deed.\nIt was also alleged that plaintiffs spent some money in repairs on the road, and that on 15. August, 1923, the defendants closed the road to the injury of plaintiffs, and though demanded, the defendants had not reopened this road, and that plaintiff\u2019s brick business was broken up and loss and damage resulted therefrom.\nThe defendants admitted that they sold the six-acre tract of land to plaintiff, with quoted sentence in deed, and that they had designated and stipulated a road over their own land to the public highway to be used for the benefit of the plaintiff, and described as set out in the deed, and that they provided a roadway and that there still is a roadway to plaintiff\u2019s property, and denied all other material allegations.\nThe jury rendered the following verdict:\n\u201c1. What damages, if any, is the plaintiff entitled to recover against the defendant, George D. Hodgin, for obstructing road to the plaintiff\u2019s brick plant? Answer: $900.00.\n\u201c2. What damages, if any, is the plaintiff entitled to recover against the defendant, Effie Hodgin, for obstructing road to the plaintiff\u2019s brick plant? Answer: Nothing.\u201d\nNo counsel for plaintiff.\nJ. H. Whicker for defendants." }, "file_name": "0582-01", "first_page_order": 686, "last_page_order": 689 }