Town of Farmville v. Ac Monk & Company , 250 N.C. 171 ( 1959 )

108 S.E.2d 479 (1959) 250 N.C. 171

TOWN OF FARMVILLE, a municipal corporation,
v.
A. C. MONK & COMPANY, Inc., Elbert C. Holmes and wife, Sue T. Holmes; John D. Holmes and wife, Leymon B. Holmes; Carroll R. Holmes and wife, Hannah F. Holmes; John Hill Paylor and wife, Alice F. Paylor; W. D. Morton and wife, Jane C. Morton; Sarah Cameron Blount and husband, Shaw Blount; Zyphia Cameron Moseley and husband, Ralph Moseley, and Patrick Cameron.

No. 95.

Supreme Court of North Carolina.

April 29, 1959.

Lewis & Rouse, Farmville, for plaintiff-appellee.

Thorp, Spruill, Thorp & Trotter, Rocky Mount, for defendant-appellee.

Jones, Reed & Griffin, Kinston, for defendants-appellant.

DENNY, Justice.

As we interpret the record on this appeal, the action was instituted pursuant to the provisions of our Declaratory Judgments Act, G.S. § 1-253 et seq. for the sole purpose of having the court determine whether or not any portion of the property owned by A. C. Monk & Company, Inc. has been dedicated as a public street by it or by any of its predecessors in title. Town of Morganton v. Hutton & Bourbonnais Co., 247 N.C. 666, 101 S.E.2d 679; Hine v. Blumenthal, 239 N.C. 537, 80 S.E.2d 458; Carver v. Leatherwood, 230 N.C. 96, 52 S.E. 2d 1.

On 30 July 1920, when the Realty Company sold the 60-foot strip of land described in paragraph 5 of the statement of facts herein, lying to the north of the center of Pine Street extended, there was no Pine Street west of East Carolina Railroad. Furthermore, the plat of the subdivision of Washington Heights, dated 4 February 1920, was not referred to in the deed and no lot in that subdivision had been sold at that time. Moreover, the plat of the subdivision of Washington Heights was not recorded until 1927.

It is clear from the evidence in this case that no deed conveying the above described land ever referred to the map of the subdivision of Washington Heights. It is true the deed from the Realty Company to the Development Company and the respective deeds to the other predecessors in title of A. C. Monk & Company, Inc., as well as the deed to A. C. Monk & Company, Inc., did refer to the center of Pine Street extended, but, as we interpret the evidence, since Pine Street had not been opened west of East Carolina Railroad when the deed from the Realty Company to the Development Company was executed, the words "Pine Street extended" were mere words of description to make definite the location of a property line. Pine Street as it then existed came to a dead end east of East Carolina Railroad, which was immediately east of Washington Heights.

Moreover, it was stipulated in the court below that the first lot sold in the subdivision of Washington Heights was to John Henry Dunn by deed dated 12 December 1923 and duly recorded 26 May 1924. Therefore, there is nothing in the documentary evidence or the oral evidence introduced in the trial below that tends to show that A. C. Monk & Company, Inc., or any of its predecessors in title, beginning with the Development Company in 1920, were in privity with or induced the defendant appellants or any of their predecessors in title to purchase property in Washington Heights under the belief that the property would be developed as shown on the unrecorded map of said subdivision.

We find nothing in the chain of title of A. C. Monk & Company, Inc. that tends to show a dedication of any portion of Pine Street, unless such street was shown on that certain plat made by W. C. Dresbach & Son in July 1948 and duly recorded in Map Book 4, page 11, and referred to in the deed from Imperial Tobacco Company to Southern States Tobacco Company as set forth in paragraph 8 of the statement of facts herein. However, it does not appear that a copy of the map made by Dresbach & Son was introduced in evidence in the court below, and no such map was forwarded as an exhibit to this Court.

The Town of Farmville does not contend that it has acquired as easement in the 24-foot strip of land in controversy by prescription. Furthermore, it concedes that the evidence adduced in the trial below establishes the fact that the general public has not used the disputed area under any claim of right adverse to the owner, nor has travel thereon been confined to a definite and specific line. Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153, 155. If there has been a dedication of the 24-foot strip of land included in the deed from the Realty Company to the Development Company, dated 30 July 1920, and to the defendant A. C. Monk & Company, Inc. by mesne conveyances, such dedication must be established as a matter of law from the documentary evidence introduced in the trial below.

In Hemphill v. Board of Aldermen, supra, this Court said: "Before a highway can be established by prescription it must appear that the general public used the same under a claim of right adverse to the owner, and the travel must be confined to a definite and specific line, although slight deviations in the line of travel, leaving the road substantially the same, may not destroy the rights of the public. 18 C.J., page 107; Elliott on Roads and Streets, § 194; State v. Haynie, 169 N.C. 277, 84 S.E. 385; Milliken v. Denny, 141 N.C. 224, 227, 53 S.E. 867; Bailliere v. Atlantic Shingle, Cooperage & Veneer Co., 150 N.C. 627, 633, 64 S.E. 754; Snowden v. Bell, 159 N.C. 497, 500, 75 S.E. 721; 9 R.C.L., page 776.

"To establish the existence of a road or alley as a public way, in the absence of the laying out by public authority or actual dedication, it is essential not only that there must be twenty years' user under claim of right adverse to the owner, but the road must have been worked and kept in order by public authority. * * *"

In the case of Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13, 18, it is said: "It is a settled principle that if the owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys the lots or any of them with reference to the plat, nothing else appearing, he thereby dedicates the streets, and all of them, to the use of the purchasers, and those claiming under them, and of the public." (Authorities cited.)

Even if it were the intention of the owner of Washington Heights subdivision to dedicate Pine Street for a width of 48 feet as shown on the map thereof, when it sold the northern half of the purported street without any reference to the map it constituted a withdrawal of any contemplated dedication it might have had as to the conveyed portion thereof. Rowe v. City of Durham, 235 N.C. 158, 69 S.E.2d 171, 173. Moreover, since the corporate limits of the Town of Farmville were not extended to include the area now in dispute until approximately eleven years after the owner of the subdivision had conveyed the disputed area without any reference to the map of the subdivision, neither the recording thereafter of the map of said subdivision, nor the extention of the town limits to include the area, can have the effect of reviving any previous offer of dedication, if one had been made. Rowe v. City of Durham, supra.

"A municipality is without power to accept an offer of dedication of a street which lies without its territorial limits." Rowe v. City of Durham, supra; Gault v. Town of Lake Waccamaw, 200 N.C. 593, 158 S.E. 104. The evidence discloses no offer of dedication since 1931, the year the corporate limits of the Town of Farmville were extended to include the disputed area.

We have carefully examined the appellants' 36 assignments of error and, in our opinion, they present no error that is sufficiently prejudicial to justify a new trial. A seriatim discussion of these numerous assignments would serve no useful purpose.

No error.

MOORE, J., not sitting.