{ "id": 8571778, "name": "JAMES T. STRICKLAND v. RICHARD A. SHEW", "name_abbreviation": "Strickland v. Shew", "decision_date": "1964-01-17", "docket_number": "", "first_page": "82", "last_page": "88", "citations": [ { "type": "official", "cite": "261 N.C. 82" } ], "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": "163 S.E. 804", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N.C. 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628154 ], "opinion_index": 0, "case_paths": [ "/nc/202/0685-01" ] }, { "cite": "112 S.E. 2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626359 ], "opinion_index": 0, "case_paths": [ "/nc/251/0509-01" ] }, { "cite": "166 A. 895", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "311 Pa. 436", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1146223 ], "opinion_index": 0, "case_paths": [ "/pa/311/0436-01" ] }, { "cite": "87 S.E. 133", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659439 ], "opinion_index": 0, "case_paths": [ "/nc/170/0389-01" ] }, { "cite": "81 S.E. 422", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "165 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659073 ], "opinion_index": 0, "case_paths": [ "/nc/165/0367-01" ] }, { "cite": "199 S.E. 37", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629839 ], "opinion_index": 0, "case_paths": [ "/nc/214/0244-01" ] }, { "cite": "126 S.E. 2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568155 ], "opinion_index": 0, "case_paths": [ "/nc/257/0410-01" ] }, { "cite": "69 A.L.R. 1417", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "276 P. 912", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8869224 ], "opinion_index": 1, "case_paths": [ "/utah/74/0057-01" ] }, { "cite": "43 A. 692", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "41 S.E. 1027", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "130 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273948 ], "opinion_index": 1, "case_paths": [ "/nc/130/0496-01" ] }, { "cite": "104 S.E. 169", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "180 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653104 ], "opinion_index": 1, "case_paths": [ "/nc/180/0115-01" ] }, { "cite": "110 A.L.R. 178", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "41 A.L.R. 1443", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "110 A.L.R. 175", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "110 A.L.R. 176", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "96 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "245 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612970 ], "opinion_index": 1, "case_paths": [ "/nc/245/0453-01" ] }, { "cite": "101 S.E. 2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "247 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627803 ], "opinion_index": 1, "case_paths": [ "/nc/247/0554-01" ] }, { "cite": "110 A.L.R. 167", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "272 N.W. 270", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "149 N.E. 632", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "18 P. 2d 292", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 8870625 ], "opinion_index": 1, "case_paths": [ "/utah/81/0355-01" ] }, { "cite": "137 S.E. 349", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "80 S.E. 2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "239 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627722, 8627751 ], "opinion_index": 1, "case_paths": [ "/nc/239/0537-01", "/nc/239/0537-02" ] } ], "analysis": { "cardinality": 840, "char_count": 16763, "ocr_confidence": 0.398, "pagerank": { "raw": 8.990986789249867e-08, "percentile": 0.5028816351841362 }, "sha256": "153858c14f0b0f73a090a72e28a000133531d0ca31dde7e884c7e4e749e574a0", "simhash": "1:60e484ad5068e2d8", "word_count": 2915 }, "last_updated": "2023-07-14T21:53:45.776989+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PARKER and Bobbitt, JJ. join in this concurring opinion." ], "parties": [ "JAMES T. STRICKLAND v. RICHARD A. SHEW." ], "opinions": [ { "text": "Sharp, J.\nAt -all times pertinent to- a decision of this case Robin Hood Drive was not a public road. While the 'State Highway Commission is now maintaining it, the rights and habilitas of toe parties are to be determinad by their deed and not the rules applicable to a governmental agency when i-t opens or changes toe .grade of an existing street or highway. See Smith v. Highway Commission, 257 N.C. 410, 126 S.E. 2d 87; Jenkins v. Henderson, 214 N.C. 244, 199 S.E. 37; Wood v. Land Co., 165 N.C. 367, 81 S.E. 422; Cf. Bennett v. R.R., 170 N.C. 389, 87 S.E. 133; McGarrity v. Commonwealth, 311 Pa. 436, 166 A. 895.\nBy purchasing a lot within a subdivision with -reference to- toe plat thereof, plaintiff -acquired toe private -right to- have each and all of toe streets shown on toe plat kept open or available for opening as oocasion might require. Steadman v. Pinetops, 251 N.C. 509, 112 S.E. 2d 102; Somersette v. Stanaland, 202 N.C. 685, 163 S.E. 804. Here, however, plaintiff is not relying upon any rights which he might Share in common with other property owners 'in (the subdivision or upon .any implied right of access as an abutting landowner. By his deed from defendant, plaintiff acquired a specific easement of access in the road adjoining his lot on the south. Access from the street was not limited to \u2018any particular portion of the lot.\nOne, who by his deed has specifically granted to another an easement of access, may not obstruct the easement in such manner as to prevent or to interfere with its reasonable enjoyment by hi\u00ae grantee. The grantor is obligated to refrain from doing, or permitting anything to be done, which results .in the impairment of the easement. 17 A. Am. Jut., Easements \u00a7 137.\nIt is apparent that the parties contemplated direct, practical, and reasonable access -to all partis of the lot from the 'street whenever it wais opened. Such use in a residential development today necessarily includes access by automobile. At the time plaintiff purchased the property in question a dirt road, level with the lot, ran from East Lake Shore Drive along a portion of its south line. Prior to the construction of Roibin Hood Drive defendant approved house plans for the plaintiff which showed that access to the carport could be had only from that street. The fact that plaintiff\u2019s property would eventually become a corner lot, with access from two streets, was one of the material inducements of the sale. Obviously a second street would add nothing to the value of a lot if, when opened, it provided only a jumping off place for children to disport themselves.\nUnder the evidence in this case it is for the jury to say whether the defendant constructed Robin Hood Drive so as to afford reasonable ingress, egress, and regress with respect to the plaintiff\u2019s lot. If he did not, the plaintiff would be entitled to recover the depreciation in the market value of his lot which was proximately caused by his failure to provide such access.\nThe judgment of nonsuit is\nReversed.", "type": "majority", "author": "Sharp, J." }, { "text": "Moore, J.,\nconcurring in result:\nWhen land is \u00a1subdivided into lots and a map is made thereof showing streets, and lots are sold with reference to \u00a1such map, the owner of the subdivision thereby dedicates the streets to- the use of those who purchase the lots for ingress and egress. The lot purchasers acquire easements of ingress and egress, but are entitled to exercise only such nights thereunder ais may be necessary to the east or west of the carport \u201ccould go in (tire carport) with ia skillful driver.\u201d It does not appear in evidence how .wide the 'door to. the carport is, but it is common knowledge that ordinary automobile operators drive cars into\u2019 narrow 'driveways and parking .spaces .at right angles from highways and streets with less turning space than 18 to 20 feet. Plaintiff is not entitled, at all events, to the most convenient and direct route to his carport, else all streets and roadways in subdivisions must be approximately at lot grade regardless of the natural contour of the land. What plaintiff is entitled to is a reasonably convenient and prop.er entrance or entra\u00f1ices to his lot under the 'circumstances.\nThe location of an easement of way may be determined and fixed by implied agreement, acquiescence, or by parol agreement. 110 A.L.R. 178-180. And once it is located and fixed, it may not be altered except :by mutual consent. Smith v. Jackson, 180 N.C. 115, 104 S.E. 169; Mullen v. Canal & Water Co., 130 N.C. 496, 41 S.E. 1027; International Pottery Co. v. Richardson, 43 A. 692 (N.J.); Tripp v. Bagley, 276 P. 912, 69 A.L.R. 1417 (Utah). Plaintiff contends that by approving hiis house .plans, including the plans for the carport, and by an \u201cunderstanding\u201d that the house would be .built near the center of the lot with the carport facing the road in question, defendant assented to an entrance from the road directly into the carport. Defendant, of course, \u25a0contends otherwise. This is also a question for jury determination.\nI do not agree with the following statements in toe majority opinion, ais legal conclusions and principles: (1) . . . \u201cAccess from the street was not limited to any particular portion of the lot.\u201d (2) \u201cIt is apparent that toe parties contemplated direct, practical, and reasonable access to all parts of toe lot .from the street whenever it was opened.\u201d For reasons already stated, it is my .opinion that these statements are toio broad and assume toe truth of much plaintiff must prove by the \u2022greater weight of the evidence if he is to prevail.\nPARKER and Bobbitt, JJ. join in this concurring opinion.", "type": "concurrence", "author": "Moore, J.," } ], "attorneys": [ "Poisson, Marshall, Barnhill & Williams for plaintiff appellant.", "Aaron Goldberg and John J.. Burney for defendant appellee." ], "corrections": "", "head_matter": "JAMES T. STRICKLAND v. RICHARD A. SHEW.\n(Filed 17 January 1964.)\n1. Easements \u00a7 8\u2014\n,The grantor of an easement of access may not obstruct the ea-sem-ent so -as to interfere with its reasonable enjoyment 'by tb-e grantee, and be bas no right -to do- or permit -the doing of anything which .results in the impairment -of the easement granted.\n2. Same\u2014 Whether grantor interferred with reasonable use of easement held for jury on evidence.\nThe deed -in suit conveyed a lot with an easement in a street to be opened along the sid-e of the lot. The -evidence disclosed that the grantor, under \u00a1the provision of a restrictive covenant in the deed, approved, plans for middle, opposite the carport, there was a cut of some six feet, so that a street -to be constructed, and that when the street was constructed its grade was approximately even with the lot at each end, .but that in the middle, opposite the carport there was a cut of some six feet, so that a driveway useable by automobiles could not be constructed from the street to the carport. Held: The evidence requires- -the submission to the jury of the question whether \u00a1the street so constructed afforded reasonable ing-ress, egress, -and regress with respect to plaintiff\u2019s lot.\nMoobe, J., concurring in result.\nParker and..-B0BBiT.T, JJ., join in'-concurring opinion.\nAppeal by plaintiff from Parker, J., March 1963 Session of New HANOVER.\nAction for damages for interference with an easement of access.\nThese facts are established' by the pleadings: In 1956 defendant was \u25a0the owner and developer of a residential subdivision in Wilmington known as Sherwood Forest. On September 19, 1956 he sold plaintiff a lot fronting on East Lake Shore Drive in the subdivision. At that time the defendant exhibited to plaintiff a plat showing the general layout of Sherwood Forest and agreed that a street would be constructed along the south side of the lot. The deed Which defendant delivered granted plaintiff an easement in and to that street in the following language:\n\u201cThe parties of the first part hereby give, grant, and convey unto 'the said parties of the second part a right-of-way and easement of egress, ingress and regress over and upon that said road or roads, adjoining the above described lot and bounded and described as follows.\u201d (Description of the street is set out by metes and bounds.)\nThe deed also contained, inter alia, the following restrictions:\n\u201c2. No building shall be located on said lot nearer than fifty (50) feet to the front of said lot 'and not nearer than ten (10) feet from the side of said lot, or nearer than ten (10) feet from the rear of said lot.\u201d\n\u201c5. The plans and specifications of all buildings which shall be erected or moved on \u00a1any lot shall be subject to' -approval by the developer, and the lot cannot be subdivided without the approval of the -developer.\u201d\nPlaintiff submitted \u00a1the plains for his house to the defendant who -approved them on J-anuary 30, 1957. Thereafter plaintiff constructed a house on the lot in- accordance -with the plans which included a carport on the south \u00a1side of the house.\nAt the trial, plaintiff\u2019s evidence was sufficient to \u00a1show the following: His lot fronts west 95 feet -on Lake \u00a1Shore Drive and South 201 feet on Robin Hood Drive. At -the -time plaintiff submitted his plans to the defendant, it was understood between .them that the house was to be located near the center -of the -lot and that -the carport woul-d open to the -sooth on the new road to be constructed (Roibin Hood Drive). The boose, when completed in July 1957, was situated 70 feet -back from Lake Shore Drive, 10 feat from the north property line, -and the entrance to the carport was 18 feet from Robin Hood Drive.\nAt the time of the sale, a dirt road, nan from East Lake Shore Drive along the south side of plaintiff\u2019s lot, cutting across it at the rear. This road was level with plaintiff\u2019s lot but was considerably higher than the lot across the road on the south,. As an inducement to the plaintiff to purchase the lot for $2,300.00, defendant pointed out the enhanced value it would have as a corner lot when the new road was opened. They did not discuss the manner in which, the road was to be constructed.\nDefendant began the -construction of Robin Hood Drive about September\u2019 18, 1961. Over piaintiffis protest, the road was graded in such a way that there is now a perpendicular 'drop of from 3 to' 6 feet along the south side -of the lot. At tire entrance to the carport the drop is 6 feet. The dirt removed when' the road was graded was used to- fill in the lots across the -street as well as another low area in the development. The low 'grade of Roibin Hood' Drive has made the plaintiff\u2019s carport 'inaccessible. Any driveway constructed to> it from the street would have to be so steep that a car would drag upon entering the carport. If the carport is ever\u2019 to be used, it must be rebuilt -so that it can be entered from toe -east over a drive constructed from toe rear of toe lot. This construction would cost $1,121.85. As a result of -toe grading of Robin Hood Drive the market value of plaintiff\u2019s property has been reduced $2,750.00. On August 30, 1963 toe State Highway Commission took over toe maintenance of Robin Hood Drive.\nAt to-e conclusion of plaintiff\u2019s 'evidence, the -defendant\u2019s motion for judgment ais of nonsuit was allowed and toe plaintiff -appealed.\nPoisson, Marshall, Barnhill & Williams for plaintiff appellant.\nAaron Goldberg and John J.. Burney for defendant appellee." }, "file_name": "0082-01", "first_page_order": 122, "last_page_order": 128 }