Combs v. Brickhouse

Bbogden, J.

Does 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?

An 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 .

The 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: “It 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.”

The 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: “It 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 “positive, unequivocal and inconsistent with the contract,” and if left to the jury upon a denial in the answer, it must be with that instruction,” 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: “It 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.

*369 Nevertheless 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,” etc. To the same tenor, is the statement of the law in R. C. L., Vol. 9, page 812, section 68. The author said: “An 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,” 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 .

In the case at bar the plaintiff testified that “in the spring of 1930 the defendant dammed up the said three ditches, and upon my cutting out the dams, defendant dammed them up again.” 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.

New trial.