#### ETURA WHITE v. JOSIE COGHILL and S. F. COGHILL, Her Husband, et al.

(Filed 7 October, 1931.)

Easements A c — Petition in Superior Court for way of necessity held properly dismissed, petitioner’s exclusive remedy being under C. S., 3836.

Where a petition for a “way of necessity” over the lands of another is filed in the Superior Court, and the petition alleges that the petitioner was devised a tract of land without any way of egress to a public road except over the land of another devisee of the testator, and there is no *422allegation that such a way over the land of the other devisee had theretofore existed in favor of the land devised to the petitioner, and there is no stipulation in the devise for a way of ingress and egress to a given point, Held: the petitioner’s exclusive remedy is under the provisions of C. S., S835, 3836, by way of petition before the road-governing body of the county, and the proceedings in the Superior Court is properly nonsuited.

Civn, ACTION, before Cramner, J., at March Term, 1931, of Vance.

The plaintiff filed a petition before the clerk of the Superior Court, alleging that her father, J. F. Coghill, died leaving a last will and testament, and devising to her fifty acres of land, “the same to be cut off from the lands of said J. F. Coghill, deceased, so that the same shall adjoin the lands of her husband, by running a line westerly with S. E. Coghill’s line and on to Mill Creek a sufficient distance to give said Etura White fifty acres.” The testator also devised a certain tract of land to Josie Coghill and the children of herself and her husband, S. E. Coghill. The petitioner further alleged that “the land so given petitioner is wholly without any way of egress or roadway except as may result from the devise of said lands to petitioner and defendants by the will of J. E. Coghill from the lands held by him at the time of his death, and the same can only be established through the lands of Josie Coghill and children, the defendants, to which petitioner is entitled as a way by necessity, both devises being made by the same devisor as part of same tract and no other way existing or being provided or fixed by the will of J. F. Coghill and has not been established by any agreement or legal proceeding between said parties.” Thereupon, the petitioner prayed that the line between the two tracts be established and that a right of way to the public road be set off and allotted.

The defendants filed an answer alleging that there was a right of way or roadway leading to the public road, which had been in existence and in constant use for approximately forty-five years.

When the case was called for trial it was admitted in open court that the question of boundary between the two tracts of land so devised had been settled, and that the only question to be determined by the court was the question of a right of way or roadway through the lands of defendants. It was further admitted that no application for a roadway had ever been made to the road-governing body of the county. Upon such admissions the trial judge ordered a nonsuit upon the ground that the proper remedy for plaintiff was to file a petition for a roadway with the road-governing body of the county in compliance with the statute in such cases made and provided.

From the judgment so rendered the plaintiff appealed.

*423 Irvin B. Watkins and Pittman, Bridgets & Hicks for plaintiff.

Kittrell & Kittrell for defendants.

BsogdbN, J.

Tbe plaintiff contends tbat sbe is entitled to a way of necessity over the lands of defendants, to be set apart and located by the court. The law of “way of necessity” is discussed in many cases in this State, notably, Cagle v. Parker, 97 N. C., 271, 2 S. E., 76; Lumber Co. v. Cedar Works, 158 N. C., 162, 73 S. E., 902; Carmon v. Dick, 170 N. C., 305, 87 S. E., 224; Brick Co. v. Hodgin, 190 N. C., 582, 130 S. E., 330; Weaver v. Pitts, 191 N. C., 747, 133 S. E., 2; Grant v. Power Co., 196 N. C., 617, 146 S. E., 531. See, also, Brasington v. Williams, 141 S. E., 375. The general rules of law are summarized by Mordecai’s Law Lectures, Vol. 1, page 466, as follows: “A way of necessity exists where a man sells land entirely surrounded by his own land, and there is no outlet from the lands thus sold to the public highway. A right thus created is a right to pass over the vendor’s land so as to reach the public road. It is the duty and right of the vendor to select the route; but, if he fail to point it out, the vendee may select; and after selecting it he must stick to it. . . . It is sometimes stated that, in order to create a way of necessity, the land sold must be entirely surrounded by the lands of the grantor; but this does not seem to be correct, for if the land be surrounded by the lands of the grantor and others, an outlet to the public road over the lands of the grantor is conferred upon the grantee by implication. ... In this State we have a peculiar way of necessity. It is a way, known as a cartway, given by statute to one whose lands are cut off from access to the public highway, and which is obtained by condemnation proceedings.”

The decisions upon the subject in this State are to the effect that if the parties stipulate in a deed for a way of ingress and egress to a given point, the vendor has the right to select such reasonable way in the first instance, and if he fails to do so, the vendee may select. It is also fully settled that if at the time of the conveyance or transfer of title, there are easements of permanent character that have been created or exist in favor of the land sold and which are reasonably necessary for its use and convenient enjoyment, that all such easements pass as appurtenances to the land in the absence of' express provision to the contrary.

However, the case at bar does not fall within the foregoing principles. There is no allegation in the petition that any roadway or easement existed or was used for the benefit of the land owned by the plaintiff, nor is there any provision in the devise creating such an easement. *424Hence, tbe situation is that, according to tbe allegations of tbe plaintiff, sbe owns lands not accessible to a highway except by crossing tbe lands of defendants. These facts invoke tbe application of C. S., 3835 and 3836 as tbe exclusive remedy to wbicb plaintiff is entitled. Therefore, tbe ruling of tbe trial judge was correct.

Affirmed.