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Issue  180  Article  313
Published:  7/1/2010

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Dirt Tales From the Deed Vault - Episode 36
John Dillard, Vice President and Legal Counsel

In the last installment of Dirt Tales we left you with the true story of Angie Ambler (not her real name), who was sitting in a jail cell for violating an injunction not to use a road she had no deeded right of way to. Angie's closing attorney had tacked onto a prior title policy in which access had been insured.

After being denied the right to drive on the only road that led to her house Angie's attorney, Lester Dolittle, had decided to go back and look for a grant of access in her chain of title. What the attorney discovered was that the land of the neighbor who was denying her right to use the road ran only to the centerline of the road. Dolittle came up with a plan. He would approach the other neighbor and try to get an easement for their half of the road. The road was wide enough, in his opinion, for Angie to drive only on that half of the road.

Query, would this be sufficient to solve Angie's dilemma? How would she or the complaining neighbor know that at all times she was driving solely on the granting neighbor's part of the road? Driving on one side of the road would work just fine in one direction, but going the opposite way Angie would be driving on the wrong side of the road. Attorney Doolittle assured Angie that wouldn't be such a big problem as there was hardly any traffic on the road.

If Angie wanted or needed to drive on the entire road what would her options be to achieve that? Her best option, according to her attorney, would be to file an action in court based on an Implied Easement theory. Doolittle found a case that set out the elements that would be needed.

In the case of Tedder v. Alford, 493 S.E.2d 487( N.C.App. 1997) Doolittle said that Angie would need to prove the following elements:

(1) there was common ownership of the dominant and servient parcels and a transfer which separated that ownership;

(2) that before the transfer, the owner used part of the tract for the benefit of the other part, and this use was apparent, continuous and permanent; and

(3) the claimed easement is 'necessary' to the use and enjoyment of the claimants land.

As the court in Tedder stated, "Once these elements are established, [a]n 'easement from prior use' may be implied to 'protect the probable expectations of the grantor and grantee that an existing use of part of the land would continue after the transfer.'"

Doolittle concluded that his effort to save time by tacking onto the existing title policy had not paid off at all and he was going to have to do an extensive title examination to try and prove common ownership of Angie's land and that of the complaining neighbor.

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