Strickland v. Shew , 261 N.C. 82 ( 1964 )

Sharp, J.

At -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.

By 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 ‘any particular portion of the lot.

One, 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® 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 § 137.

It 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’s 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.

Under 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’s 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.

The judgment of nonsuit is

Reversed.