Davis v. . Morris , 132 N.C. 435 ( 1903 )

The plaintiff laid off a strip of land 20 feet wide in the town of Gastonia and styled it "Davis Street," in the deeds of lots which he conveyed to sundry parties abutting on both sides of said street, thefeme defendant being purchaser and grantee of one of said lots. The evidence is uncontradicted that the defendants were induced to purchase their lot by the representations of the plaintiff that said 20 feet was a street, and that he intended to extend said street 500 feet north, and also south across the railroad. Before the bond for title to the defendants was executed, the plaintiff caused said street to be laid off in their presence, instructing the surveyor to lay off said 20 feet for a street, making a plat thereof and located the boundaries and (436) corners of said lot and street, which last he named "Davis" in honor of himself. Under the bond for title, the defendants went into possession of said lot in 1889 and put up a residence, stable, and other outhouses, and the plaintiff has executed to the feme defendant a deed for said lot, in which he calls for "Davis Street" for the west boundary of said lot, which he has also done in the bond for title. The street has been used continuously as such since 1889 without objection by the plaintiff. Such conduct is an estoppel on the plaintiff, and as "between the parties the dedication is irrevocable, though the street has never been accepted by the town for public use. "S. v. Fisher, 117 N.C. at p. 740, citing Moosev. Carson, 104 N.C. 431, 7 L.R.A., 548, 17 Am. St., 681; Grogan v.Haywood, 4 Fed., 164, all of which has since been cited with approval byDouglas, J., in Smith v. Goldsbro, 121 N.C. at p. 354. The same principle has been reiterated in Conrad v. Land Co., 126 N.C. 776; Collins v. LandCo., 128 N.C. 563, 83 Am. St., 720.

For the above reasons the plaintiff could not sustain his first cause of action to recover possession of said street, and for the further reason that the defendants are not in possession of the street, but have only an easement therein as abutting proprietors.

The second cause of action is for trespass, in that the defendant placed his woodpile in the street (as has been not unusual in our smaller towns) and put his pig-pen 12 inches over the line. The defendants corrected both these grounds of complaint when called to their attention, and besides it was not a matter for which the plaintiff could sustain an action for trespass. The other exceptions require no discussion. It was not material that there was no plat when the bond for title was executed (437) to the defendants. The line of the street was marked off on the ground and the boundary of the street was called for in the bond for title and in the subsequent deed. The boundary was sufficiently described.Id certum est quod certum reddi potest.

No error.

WALKER, J., having been of counsel, did not sit on the hearing of this case.

Cited: Green v. Miller, 161 N.C. 30; Sexton v. Elizabeth City,169 N.C. 390.