{ "id": 8625405, "name": "B. B. COMBS v. E. W. BRICKHOUSE", "name_abbreviation": "Combs v. Brickhouse", "decision_date": "1931-09-30", "docket_number": "", "first_page": "366", "last_page": "369", "citations": [ { "type": "official", "cite": "201 N.C. 366" } ], "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": "2 S. E., 520", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "96 N. C., 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649678 ], "opinion_index": 0, "case_paths": [ "/nc/96/0172-01" ] }, { "cite": "22 L. R. A. (N. S.), 880", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "119 S. E., 210", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N. C., 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653228 ], "opinion_index": 0, "case_paths": [ "/nc/186/0191-01" ] }, { "cite": "34 S. E., 511", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "125 N. C., 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274039 ], "opinion_index": 0, "case_paths": [ "/nc/125/0400-01" ] }, { "cite": "34 S. E., 245", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "125 N. C., 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273209 ], "opinion_index": 0, "case_paths": [ "/nc/125/0152-01" ] }, { "cite": "148 S. E., 246", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N. C., 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628422 ], "opinion_index": 0, "case_paths": [ "/nc/197/0280-01" ] }, { "cite": "135 S. E., 26", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N. C., 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621518 ], "opinion_index": 0, "case_paths": [ "/nc/192/0280-01" ] }, { "cite": "127 S. E., 697", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "189 N. C., 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654716 ], "opinion_index": 0, "case_paths": [ "/nc/189/0589-01" ] } ], "analysis": { "cardinality": 468, "char_count": 8028, "ocr_confidence": 0.47, "pagerank": { "raw": 2.497091769347065e-07, "percentile": 0.8091213039833597 }, "sha256": "26f5e9cc543532ba473fa8759f03daa247de49004838f53647779627d0cacc65", "simhash": "1:b363a9822b90c6b6", "word_count": 1423 }, "last_updated": "2023-07-14T22:25:15.863450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "B. B. COMBS v. E. W. BRICKHOUSE." ], "opinions": [ { "text": "Bbogden, J.\nDoes a parol agreement to eliminate drainage ditches, made by the owners of the dominant and servient estates, constitute evidence of an abandonment or relinquishment of a drainage easement imposed upon the servient estate?\nAn easement is an interest in land, and the creation thereof by grant is governed by the statute of frauds. C. S., 988. Davis v. Robinson, 189 N. C., 589, 127 S. E., 697; Clark v. R. R., 192 N. C., 280, 135 S. E., 26; Gruber v. Eubank, 197 N. C., 280, 148 S. E., 246.\nThe facts in this case, however, involve the abandonment or relinquishment of an easement rather than the creation thereof. Apparently the cause was tried upon the theory that the abandonment of an easement is also within the statute of frauds and therefore to be evidenced by writing. Faircloth, C. J., in Adams v. Battle, 125 N. C., 152, 34 S. E., 245, wrote as follows: \u201cIt was an iron-clad maxim of the common law that an obligor would only be released by an instrument of as high dignity as that by which he was bound, that is, being obligated by a seal he could be released only by an instrument under seal. Technically, this is the rule of modern times, unless changed by statute, but practically it is seldom enforced. To this rule, the exceptions were and are so numerous that seldom can the rule be applied.\u201d\nThe record does not disclose, unless by reference to the first issue, whether the drainage easement was originally acquired by prescription or by deed. If acquired by prescription, the acts and conduct of the parties for the required length of time gave birth to the easement, and by the same process of logic, it would seem that the unequivocal acts of the parties might also destroy. Indeed, it has been- held that a verbal agreement to release a mortgage is not within the statute of frauds. Hemmings v. Doss, 125 N. C., 400, 34 S. E., 511. In that case Clark, J., said: \u201cIt is true that the evidence of the parol discharge of a written contract within the statute of frauds, or an equitable estoppel by matter in pais, must be \u201cpositive, unequivocal and inconsistent with the contract,\u201d and if left to the jury upon a denial in the answer, it must be with that instruction,\u201d etc. Stevens v. Turlington, 186 N. C., 191, 119 S. E., 210. A general statement of the proposition of law is found in 19 C. J., 949, as follows: \u201cIt is elementary that oral testimony is not admissible -to limit the legal effect of a deed, and that an easement cannot be extinguished or released by a mere unexecuted parol agreement.\nNevertheless the rule is well settled that a parol agreement between the owners of the dominant and servient tenements may operate to extinguish an easement whether created by grant or prescription, where such agreement has been executed by the owner of the servient tenement,\u201d etc. To the same tenor, is the statement of the law in R. C. L., Vol. 9, page 812, section 68. The author said: \u201cAn easement may be abandoned by unequivocal acts showing a clear intention to abandon and terminate the right, or it may be done by acts in pais without deed or other writing. The intention to abandon is the material question, and it may be proved by an infinite variety of acts. It is a question of fact to be ascertained from all the circumstances of the case,\u201d etc. See, also, annotation, Trimble v. King, 22 L. R. A. (N. S.), 880; Hair v. Downing, 96 N. C., 172, 2 S. E., 520.\nIn the case at bar the plaintiff testified that \u201cin the spring of 1930 the defendant dammed up the said three ditches, and upon my cutting out the dams, defendant dammed them up again.\u201d The act of the defendant in filling up the ditches in reliance upon the verbal agreement is some evidence of the intention to abandon or relinquish the easement, and hence it was error to withdraw the case from the consideration of the jury.\nNew trial.", "type": "majority", "author": "Bbogden, J." } ], "attorneys": [ "M. B. Simpson for plaintiff'.", "Thompson & Wilson for defendant." ], "corrections": "", "head_matter": "B. B. COMBS v. E. W. BRICKHOUSE.\n(Filed 30 September, 1931.)\nEasements C a \u2014 Easement may Ibe terminated by executed parol agreement of parties.\nThe lower proprietor of lands must show a right of easement in the drainage ditches on the land of the upper proprietor by written grant or prescription, but an abandonment may be shown under verbal agreement evidenced by acts of the parties showing an unequivocal intent to that effect, and testimony in this case was sufficient to be submitted to the jury to the effect that the upper proprietor stopped up certain drainage ditches on his land several times whereupon the lower proprietor as often cleared them out, the action being brought by the latter to restrain the former from continuing to obstruct the flow of water therein. Semble: by reference to answers to certain issues the right of easement was by prescription in this case.\nCivil ACTION, before Grady, J., at April Term, 1931, of TybRell.\nTbe evidence tended to sbow tbat tbe Spruill farm was one tract of land containing approximately 300 acres. Tbe farm was drained by twenty-one ditches running from north to south, draining into a canal on tbe south side of tbe tract. Afterwards tbe farm was divided into three tracts of approximate equality in acreage. J. B. Williams became the owner of the upper third, plaintiff, B. B. Combs, the owner of the middle third, and the defendant, Brickhouse, the owner of the lower third. By reason of certain litigation 'Williams, the owner of the upper third, constructed on the southern side of his tract a cross ditch running from east to west, and dammed up all the ditches north of the middle tract. Thereafter, the plaintiff Combs constructed a ditch running from east to west along the line of the middle tract and dammed up all of said ditches north of the third or lower tract except three. These three ditches were thus left and they crossed the land of the defendant. In the spring of 1930, the defendant dammed up said three ditches and the plaintiff reopened them. Whereupon, the defendant dammed them up again, and the plaintiff again reopened said ditches and instituted this action to restrain the defendant from further interfering and filling up said ditches.\nThe defendant offered evidence tending to show that when the plaintiff cut the ditches from east to west on the middle tract owned by him, that he agreed with the grantor of the defendant, the owner of the lower tract, that said ditches could be filled up and eliminated. The verbal agreement was stated by one witness for the defendant as follows : \u201cPlaintiff told me it was agreed that the different owners of the Spruill farm were each going to take care of the water falling on his respective tract and told me to dam up all of the ditches on his tract where they entered said new ditch, as he (plaintiff) was going to take care thereafter of the water which fell on his land.\u201d\nThe following issues were submitted to the jury:\n1. \u201cHave the three ditches in question been opened and used for drainage purposes of the lands in question for more than 20 years next before the commencement of this action?\u201d\n2. \u201cWere said ditches open and being so used for drainage purposes at the time the defendant purchased the lands to the south of the plaintiff\u2019s tract?\u201d\n3. \u201cHas the defendant wrongfully filled up and dammed said ditches so as to interfere with or impede the natural flow of the waters from the lands of the plaintiff, over and across the lands of the defendant ?\u201d\n4. \u201cIf so, what damages is the plaintiff entitled to recover of the defendant for said wrongful act?\u201d\nThe jury answered the first issue \u201cYes\u201d; the second issue, \u201cYes, two of them\u201d; the third issue \u201cYes,\u201d and the fourth issue \u201cone cent.\u201d\nThe court instructed the jury to answer the first and second issues as indicated by the verdict, and further instructed the jury: \u201cIf you believe the evidence and find the facts to be as it tends to show, even from the testimony of defendant and his witnesses, you will answer the third issue, yes.\u201d\nFrom judgment upon the verdict continuing the injunction, tbe defendant appealed.\nM. B. Simpson for plaintiff'.\nThompson & Wilson for defendant." }, "file_name": "0366-01", "first_page_order": 440, "last_page_order": 443 }