By virtue of the decree in a partition proceeding among the heirs of Elliott Whitehurst, in 1908, the plaintiffs acquired an easement *26consisting of a right of way over Lot No. 4, now belonging to the defendant. This right of way or cartway was described as running westwardly from the highway, and was declared to be a private way for the use of the other parties to the partition proceedings, to whom lands were allotted, for going to and from their lands lying west of Lot No. 4, and it was also declared that the cartway “shall be and remain as it now is.”
It was admitted that at the time of the partition there was a gate at the point where the cartway entered the highway, and that there was another gate at the woods. With the latter gate we are not concerned. It was also admitted that in 1940 the defendant erected a gate across the cartway at the entrance to the highway, about where the gate had previously stood, and also a second gate at the west end of Lot No. 4, where previously there had been no gate across the cartway.
The case was tried below upon the theory that if the plaintiffs could show that the maintenance of the gates erected by the defendant in 1940 constituted an unreasonable interference with plaintiffs’ easement, they would be entitled to have them removed. 28 C. J. S., 781; 12 Am. Jur., 1011; 73 A. L. R., 778. See, also, Alexander v. Autens, 175 N. C., 720, 95 S. E., 850. This view was correct in so far as the case involved the second gate, but it left out of consideration the fact that the plaintiffs’ easement was only to use the right of way as it was in 1908, and that in 1908 there was a gate across the cartway at the entrance to the highway, and that the defendant had a right to maintain the gate at the highway as it had been maintained in 1908. Unless the plaintiffs’ easement has been enlarged in some way so as to create an additional servitude on Lot No. 4, they would not have the right to require the removal of the gate at the highway.
The plaintiffs having bottomed their action upon the easement acquired in the partition proceeding, their rights were limited by the terms in which the right of way was therein designated. Upon the finding of the jury that the maintenance of the gates unreasonably interfered with the use of the right of way, plaintiffs would be entitled to require the removal óf the second or western gate, but this did not have the effect of divesting the defendant of the right to maintain a gate on his own land across the cartway at the place where a gate stood when the easement was created. Unless the plaintiffs can allege and prove in some proper way their right to a servitude upon defendant’s land in addition to that imposed by the partition proceeding, the defendant would have the right to hold his land servient only to the cartway as it was in 1908, and subject to no greater burden. Nor would the finding that the gates had been removed in 1924, at the time of the execution of the deed of trust on Lot No. 4 under which defendant subsequently acquired title, be determinative of the defendant’s rights. .
*27Tbe cause is remanded to the Superior Court for a new trial not inconsistent with this opinion. This disposition of the appeal renders unnecessary consideration of other exceptions noted at the trial.
New trial.