addressing the issue of “whether plaintiff’s easement acquired by judgment in condemnation proceeding was valid and subsisting as against subsequent purchasers from the original owners of the land” and explaining that “[o]rdinarily the owner of the dominant tenement has a right to the unobstructed use at all times of the subservient land for the exercise of such rights as are necessary or incident to the enjoyment of the easement”
How later courts described this case
- addressing the issue of “whether plaintiff’s easement acquired by judgment in condemnation proceeding was valid and subsisting as against subsequent purchasers from the original owners of the land” and explaining that “[o]rdinarily the owner of the dominant tenement has a right to the unobstructed use at all times of the subservient land for the exercise of such rights as are necessary or incident to the enjoyment of the easement”
- “It is the general law of contracts that the purport of a written instrument is to be gathered from its four corners, and the four corners are to be ascertained from the language used in the instrument.”
- new trial ordered because, contrary to verdict, theatre interfered with overhanging wires
Written by the judges who cited it.
The opinion
Stacv, C. J.,
dissenting: The case ought to turn on whether the trial court has followed our former opinion. Instead it has taken a reverse course on the second appeal.
The late Dean MacRae was wont to say to his classes, when some ambiguous answer was given, “You cannot ride two horses going in opposite directions at the same time.” If the venerable dean were living today, he would doubtless erase this aphorism from his mind, for here the Court decides two ways in the same case. True, the majority says not, and uses many words to say it, but let us take a look at the record.
The case has been here before and the “law as previously established” has intervened with its binding effect, both on the parties and the Court. Whatever was decided on the first appeal is now res judicata, and, right or wrong, it bears the impress of finality. George v. R. R., 210 N. C. 58 , 185 S. E. 431 ; Bank v. Furniture Co., 120 N. C. 475 , 26 S. E. 927 ; Hospital Asso. v. R. R., 157 N. C. 460 , 73 S. E. 242 ; Stanback v. Haywood, 213 N. C. 535 , 196 S. E. 844 . “A decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal”—Headnote (6th), Harrington v. Rawls, 136 N. C. 65 , 48 S. E. 57 , cited with approval in numerous later cases, some of them collected in Robinson v. McAlhaney. 216 N. C. 674 , 6 S. E. (2) 517.
Two questions were decided on the former appeal:
- 1. Is plaintiff’s recorded but unregistered easement good as against a subsequent registered deed of a purchaser for a valuable consideration?
This question was answered in the affirmative by a divided Court. Nevertheless, it is the law of the case, and if the defendants had sought to relitigate the matter in the trial court they would have been met with a plea of res judicata and short shrift would have been made of their position. The only remedy open to them as against the ruling was a petition to rehear. Pinnix v. Griffin, 221 N. C. 348 , 20 S. E. (2) 366. No doubt they were advised by counsel to accept the decision on the first question without further protest, largely because of the ruling on the second question, which follows :
2. “If so, does the erection of the buildings as described constitute an interference inconsistent with the rights acquired by plaintiff by condemnation ?”
The plaintiff contended that a verdict should have been directed in its favor as there was no dispute in respect of the character and position of *692 the buildings erected by the defendants, and that this Court should accordingly instruct the trial court to direct such a verdict. Plaintiff’s position was not adopted on the former appeal. Contrariwise, the second question was answered without division of opinion or dissent in the following language: “Is there evidence of use by defendants of land subject to plaintiff’s right of way inconsistent with plaintiff’s easement?” From an examination of the record it would seem that the evidence offered, when considered in the light most favorable for the plaintiff, tends to show that the defendants’ use of the land in the erection and maintenance of the buildings complained of would constitute an obstruction and an interference with plaintiff’s rights inconsistent with the easement acquired, and, that the issues of fact raised by the pleadings and evidence should have been submitted to the jury (italics added).
When the case came on for another hearing at the March Term, 1948, Robeson Superior Court, the plaintiff offered three expert electrical engineers who testified that the presence of the theater building, in the first place, “would interfere with the ordinary acts of maintaining, repairing and keeping the power line in operation”; secondly, “would increase the hazards,” and constitute “an obstruction to the maintenance and repair of these lines,” and, thirdly, “would make the work of maintenance more difficult, require more time,” and add to the cost of operation.
The defendants, on the other hand, offered Bertram O. Vannort, a consulting electrical engineer, who gave it as his opinion that the plaintiff’s lines could be repaired and maintained “over the theater building where it is presently located” ; and while not as conveniently done with the building there, “in my opinion the building in itself does not present any great difficulty.” The witness explained in detail how power lines, which run over and above buildings, are maintained and kept in repair. “A crew properly organized and under proper supervision would not have any trouble with the problem of maintenance.”
The jury returned the following verdict:
“Does the erection and use of defendant’s theatre building constitute an interference inconsistent with plaintiff’s easement, as alleged in the complaint? Answer : No.”
From judgment on the verdict, plaintiff again appeals, assigning as its principal exception the refusal of the court to render judgment in its favor on the pleadings or to direct a verdict of like tenor.
The defendants have paid little heed to this exception, assuming that under the law of the case the matter was settled on the former appeal and is now res judicata, binding alike on the parties and the courts. The trial court so understood it, just as some members of this Court still understand it.
*693 Surprisingly, however, the majority now completely ignores the decision of the second question on the former appeal, and says : “The question then debated was whether plaintiff’s easement acquired by judgment in condemnation proceedings was valid and subsisting as against subsequent purchasers from the original owners of the land.”
If this were all that the Court decided on the former appeal, the judgment of nonsuit could not have been reversed, for the burden was on the plaintiff to show an inconsistent use by the defendants before it could ask for a ruling in its favor. On this further showing, which was not materially different from what it is on the present record, the Court said the issue of fact was for the jury.
Compare the Court’s present statement with the above quotation from the former opinion and note how consistency and the “law of the case” harm been abandoned. While this Court can overrule its previous decisions, it is not at liberty to ignore the law of the given case, once established. Newbern v. Tel. Co., 196 N. C. 14 , 144 S. E. 375 .
Can it be that the defendants are bound by our former opinion and the plaintiff is not? Is the principle of equality or the rule of fair play no longer applicable as between the present parties litigant? Is this Court not to respect its own established “law of the case” ? What becomes of our repeated decisions on the subject? It will not do to ignore these questions nor to answer them with sophistry or specious reasoning. Having gone to great expense to comply with our former decision, the defendants are entitled to know why such compliance should now mean their undoing. “It was the duty of the judge below to follow the ruling made here,” Pretzfelder v. Ins. Co., 123 N. C. 164 , 31 S. E. 470 , just as it is our duty to honor the law of the case, rather than to seek to evade it. Where the subsequent hearing is in substantial conformity to the opinion ■of this Court, the same questions may not again be presented on a second appeal. Bradsher v. Cheek, 112 N. C. 838 , 17 S. E. 533 . “It is not allowable to rehear a cause by raising on a second appeal the same points decided on a former appeal”—Ileadnote, Kramer v. R. R., 128 N. C. 269 , 38 S. E. 872 .
The plaintiff cites one case, Collins v. Alabama Power Co., 214 Ala. 643 , 108 So. 868 , 46 A. L. R. 1459, which, it is said, is the only case in the books dealing with the erection of a building on a right of way beneath electric transmission lines. There is also cited a second case, Kesterson v. California-Oregon Power Co., 114 Ore. 22 , 228 P. 1092 , which involved the piling of lumber on the right of way of a power company.
Both of these cases are distinguishable by reason of different fact situations and variant provisions in the easements. Both affirm the thesis, however, that the language of the particular easement governs in the determination of the respective rights of the parties. It is the general *694 law of contracts that the purport of a written instrument is to be gathered from its four corners, and the four corners are to be ascertained from the language used in the instrument. Jones v. Casstevens, 222 N. C. 411 , 23 S. E. (2) 303; Whitley v. Arenson, 219 N. C. 121 , 12 S. E. (2) 906.
It is to be observed that the easement in question, not only declares the rights of the petitioner, but those of the defendants as well. When mutual rights and obligations are set out in a single instrument the rule of reasonable enjoyment and forbearance applies. 28 C. J. S. 771. Mutual accommodation is the yardstick by which the rights of the parties are to be measured. Under this rule and the conflict in the evidence, the jury has determined that both parties are within their stipulated rights according to the terms of the subject easement.
The easement grants the plaintiff the right to build, maintain, inspect and keep in repair its transmission lines over the lands of the defendants, and at the same time provides that, except for such purposes, the grantee “shall not interfere with the rights of the defendants.” Then follows immediately the provision that the “defendants shall have full power and right to use the lands over which the easement and right of way is condemned for any and all purposes not inconsistent with said easement of petitioner, its successors and assigns.” Note the language, “for any and all purposes not inconsistent with said easement.” Inconsistent use is the restraint against the defendants, while interference is the prohibition against the plaintiff. An inconvenient use is not necessarily an inconsistent one. Undoubtedly the reservation in favor of the owners of the land reduced the price of the easement at the time of its acquisition; and if the plaintiff would now take a more liberal grant, or a less restricted right, it is but meet that just compensation should be the quid pro quo. The evidence of the defendants clearly shows, and the jury has found, that defendants’ use of the lands is not inconsistent with plaintiff’s easement. For this Court to hold otherwise as a matter of law is to reform the easement, not to interpret it, and this in direct conflict with its previously established law of the case.
It should be noted that we are not dealing with the general law of easements, but with a judgment in condemnation containing special provisions, which establish reciprocal rights and restraints inter partes, and the law of the case as heretofore declared.
Moreover, the evidence is not all one way on the vital issue in the case, and it is the rule with us that an affirmative finding may not be directed in favor of the party having the burden of proof, where there is evidence to support a contrary inference. Forsyth v. Oil Mill, 167 N. C. 179 , 83 S. E. 320 ; Mfg. Co. v. R. R., 128 N. C. 280 , 38 S. E. 849 ; McIntosh on Practice, 632. “It is rarely, if ever, permissible for the court to direct a verdict in favor of a party upon whom rests the burden of proof.” Barrett v. Williams, 217 N. C. 175 , 7 S. E. (2) 383.
*695 So, notwithstanding the special provisions and restraints of the easement, the “law of the case” and the conflict in the evidence, and despite the adverse finding of the jury, a third trial is ordered to the end that the plaintiff may again move for a directed verdict in its favor. What becomes of all the decisions at variance with such procedure? There is none to support it. The case is sui generis from a procedural standpoint. Its nearest parallel would seem to be Williams v. McLean, 221 N. C. 228 , 18 S. E. (2) 864, but even that case is a far cry from this one.
The trial having been conducted in accordance with our former opinion, my vote is for an affirmance.
WiNBORNE and Sea well, JJ., concur in dissent.