#### JOHN NEAMAND and Wife, FLORENCE M. NEAMAND, v. RALPH S. SKINKLE and Wife, ALVINA T. SKINKLE.

(Filed 19 September, 1945.)

Easements §§ 2, 6—

In a civil action for permanent injunction against interference with the use of an easement in an alleyway, where plaintiffs’ evidence tends to show that a developer of realty for residential purposes.put a map of his property on record, sold some of the lots in a certain block thereof and thereafter, with the approval and consent of the purchasers of the lots sold and for the convenience of all lots in said block, the developer and the purchasers of lots in such block, including predecessors in title of plaintiffs and defendants, by written agreement, which is now lost and which was not put on record, agreed to, and did lay out and establish, locate and grade a common alleyway for ingress, regress and egress for the then owners of plaintiffs’ and defendants’ lots and other lots in said block, and for the benefit of subsequent owners and the public, and that thereafter owners of lots on said alleyway constructed homes, garages and other improvements thereon with reference to the use of such alley as the only entrance to their property and used the same for many years without question, until recently when defendants wrongfully placed barriers at both entrances to said alleyway and also notices forbidding the use thereof, there is sufficient evidence for the jury and the court below erred in allowing defendants’ motion for judgment as of nonsuit.

Appeal by plaintiffs from Olive, Special Judge, at Regular July Civil Term, 1945, of BuNcombe.

Civil action for permanent injunction against interference with use of easement in alleyway.

Plaintiffs allege in their complaint, and on the trial below offered evidence tending to show this state of facts:

In the year 1925 Montford Hills, Ine., called herein the developer, subdivided into blocks of building lots for residential purposes with *384system of streets, a boundary of land which it owned in the western part of the city of Asheville, N. 0., and caused a plat of the subdivision to be prepared and registered in the office of the register of deeds of Buncombe County. According to this plat a section designated as Block A was completely encircled by a street, Tacoma Circle, laid out to conform to the topography, and all the lots in this Block had in the main fifty feet frontage on said Circle,' — lots Nos. 1 to 12, both inclusive, on the north and west sides, lots Nos. 22 to 27, both inclusive, on the east and lots Nos. 14 and 15 on the south. Lots Nos. 1 to 4, both inclusive, run back to the north line of lot No. 27; lots Nos. 5, 6 and 7 run back to the northwest corner and west line of lot No. 27; the back lines of lots Nos. 8, 9, 10 and 11 join the back lines of lots Nos. 26, 25, 24 and 23; lots Nos. 12 and 14 join lot No. 11 on the south; and lots Nos. 15 and 22 join lot No. 23 on the south. But on the plat no alleyway was shown in this block.

However, in the summer of 1925, after Montford Hills, Inc., common source of title, had sold some of the lots above enumerated, it was discovered by the developer and others interested in purchasing property in the subdivision that certain of the lots in Block A on both sides of Tacoma Circle “by reason of their limited frontage and extreme elevation,” could not be serviced by private driveways without great expense and effort.

Hence, in order to promote the sale of a number of unsold lots in this block and “to furnish to the then owners, subsequent purchasers and the general public, means of ingress, regress and egress,” the developer, Montford Hills, Inc., and those owning lots, including the predecessors in title (a) of plaintiffs, who now own lots Nos. 24 and 25, (b) of defendants Ralph S. Skinkle and wife, Alvina T. Skinkle, who now own lot No. 3, and (c) of defendant R. F. 'Williams, who now owns lots Nos. 4 and 11, by written agreement dated 28 August, 1925, agreed to, and did lay out and establish a common alleyway eight feet in width to be used jointly by the then and subsequent owners of said lots above enumerated. But the written agreement has been lost and is not registered, and the plat on record is not amended to show the alleyway. Nevertheless, the alleyway so agreed upon was surveyed and located and cleared and graded by and at the expense of developer, Montford Hills, Inc. As so agreed upon, located and graded the alleyway extends southward from the north side of the block along, and four feet in width on each side of the dividing line between lots Nos. 3 and 4 to the north line of lot No. 27; then same width southwest across the northwest corner of lot No. 27 and the back portion of lots Nos. 4 and 5; then continuing southward along and four feet in width on each side of the dividing line between lots Nos. 6 *385to 11, both inclusive, on tbe west, and Nos. 27, 26, 25, 24 and 23 on tbe east, witb an extension at tbe south end of said dividing line eastwardly along tbe line between lots Nos. 15 and 27 to west line of lot No. 22; and then westwardly along and four feet in width on each side of tbe dividing line between lot 11 on tbe north side and lots 14 and 12 on tbe south to Tacoma Circle on tbe west side of tbe block.

Thereafter, owners of lots abutting on said alleyway, as so laid, located, graded and dedicated, constructed homes and garages thereon and improved same witb reference to tbe use of tbe alleyway as tbe only entrance. And in tbe summer or early fall of 1925 tbe alleyway so located and constructed was dedicated to tbe use of tbe owners of lots which it touched, and has been kept open and used as tbe only entrance for persons and vehicles in going to and from their homes, and in tbe delivery of coal, wood and groceries, as well as mail and in tbe collection of garbage.

And tbe predecessors in title of defendants did not at any time, or in any manner, seek to revoke tbe dedication of tbe alleyway, and have acquiesced in tbe use of same as a common alleyway. But recently defendants have wrongfully placed barriers for both pedestrians and vehicles at both entrances to said alleyway, and have placed notices forbidding others to use same.

Further tbe parties stipulated: (1) That Montford ITills, Inc., is common source of title of all parties here concerned. (2) That tbe deeds from Montford Hills for lots 4 and 12 referred to tbe common driveway or alley for lots Nos. 3 to 12, both inclusive, 14, 15 and 22 to 27 inclusive in Block A. (3) That in no other deeds conveying lots subsequent to 28 August, 1925, nor in any of tbe deeds in tbe chain of title of defendants Skinkle, nor in tbe deed from plaintiffs’ predecessor in title to them for lots 24 and 25, under which plaintiffs claim, is there any reference to tbe alleyway across said lots or reservation of any right of third parties in and to said alleyway, but they do convey tbe lot or lots, respectively, witb “all privileges and appurtenances thereunto belonging.” (4) Defendant Williams filed answer admitting ownership of lots Nos. 4 and 11 and tbe existence of an easement of four feet running across said lots, and judgment was taken against him as shown by tbe record.

Defendants Skinkle in answer filed deny tbe material allegations of tbe complaint, but admit tbe location of tbe alleyway and claim tbe use of it has been permissive only.

From judgment as of nonsuit at close of their evidence, plaintiffs appeal to Supreme Court and assign error.

*386 Chas. G. Lee, Jr,, and Don O. Young for plaintiffs, appellants.

George H. Wright and Irwin Monk for defendants, appellees.

Winborne, J.

The sole exception brought up for consideration on this appeal challenges the correctness of the ruling of the court below in sustaining defendants Skinkle’s motion for judgment as in case of nonsuit. In the light of the principle enunciated in recent decision of this Court in the case of Packard v. Smart, handed down at Fall Term, 1944, and reported in 224 N. C., 481, 31 S. E. (2d), 517, applied to the evidence in the present case, taken in the light most favorable to plaintiffs, we are of opinion that plaintiffs have offered sufficient evidence to carry the case to the jury. Hence, without discussing the subject further, the judgment below will be reversed on authority of Packard v. Smart, supra.

Reversed.