Rowe v. City of Durham , 235 N.C. 158 ( 1952 )

69 S.E.2d 171 (1952) 235 N.C. 158

ROWE et al.
v.
CITY OF DURHAM.

No. 739.

Supreme Court of North Carolina.

February 27, 1952.

Brawley & Brawley, Durham, for appellants.

Claude V. Jones, Durham, for appellee.

VALENTINE, Justice.

This litigation, stripped to its essentials, questions the right of Mrs. S. K. Hester to withdraw the lot in question from her offer of dedication arising from the recordation of the plat of the "Hester Subdivision." Only the city of Durham is attempting to assert any rights against the plaintiffs with respect to the property in question.

It is true that a purchaser of a lot which has been sold by reference to a subdivision, a plat of which has been recorded, acquires the equitable right to have the street appearing on the map opened for his benefit. Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 47 S.E. 462; Conrad v. West End Hotel & Land Co., 126 N.C. 776, 36 S.E. 282; Green v. Miller, 161 N.C. 24, 76 S.E. 505, 44 L.R.A.,N.S., 231; Sexton v. Elizabeth City, 169 N.C. 385, 86 S.E. 344; Wheeler v. Charlotte Consol. Construction Co., 170 N.C. 427, 87 S.E. 221; Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18; Stephens Co. v. Myers Park Homes Co., 181 N.C. 335, 107 S.E. 233; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889.

However, "as between an owner of land and the public, the mere sale of lots with reference to a map or plat showing streets is not alone sufficient to constitute an irrevocable dedication to the public. Acceptance by the public is necessary." Thompson on Real Property, Vol. 2, section 493.

An offer to dedicate property as a street or park is revocable until the offer is accepted. Neither burden nor benefits may be imposed upon the public unless some agency authorized to do so has assumed responsibility under the offer of dedication. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368.

An offer of dedication is revocable as far as a municipality is concerned, unless there has been an acceptance of the offer prior to the withdrawal thereof. An offer of dedication is withdrawn if before the acceptance of the offer the dedicator sells the land including the alleys or streets appearing on the plat as a tract of land without reference to the streets or lots. Kennedy v. Williams, 87 N.C. 6; Stewart v. Frink, 94 N.C. 487; State v. Long, 94 N.C. 896; State v. Fisher, 117 N.C. 733, 23 S.E. 158; Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695; Wittson v. Dowling, supra; Irwin v. Charlotte, supra; Atlantic Coast Line R. R. Co. v. Ahoskie, 202 N.C. 585, 163 S.E. 565; Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104; Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664.

Speaking to the identical question here presented, this Court has said: "We think there is a distinction between land that is in a municipality mapped or platted and deeds made to the lots in which streets, squares, and commons are dedicated and accepted by the municipality, and land that is mapped or platted and deeds made to the lots in which streets, squares, and commons are dedicated outside a municipality. * * ``The intention of the owner to dedicate and acceptance thereof by the public are the essential elements of a complete dedication.' * * * ``The general rule, however, seems to be that the platting of land and the sale of lots pursuant thereto constitute a dedication, if it may be so called, of the public places delineated upon the plat only as between the grantor and purchaser, and that, so far as the municipality is concerned, such acts amount to a mere offer of dedication, and there is no complete dedication without an acceptance of some kind by the municipality.'" Gault v. Lake Waccamaw, supra, 200 N.C. at pages 598, 599, 158 S.E. at page 107.

A municipality is without power to accept an offer of dedication of a street which lies without its territorial limits. City of St. Louis v. St. Louis University, 88 Mo. 155, 159. "In Elliott on Roads and Streets, Vol. 1 (4th Ed.) part § 122, at p. 140, is the following: ``Dedication is the setting apart of land for the public use. It is essential to every valid dedication that it should conclude the owner, and that, as against the public, it should be accepted by the proper local authorities or by general public user.'" Gault v. Lake Waccamaw, supra, 200 N.C. at page 600, 158 S.E. at page 109.

When the map of the "Hester Subdivision" was placed on record, it constituted an offer to dedicate as a part of a public street the lot of land in question, but, when on June 10, 1918 the dedicator conveyed all the land west of Alabama Avenue by metes and bounds description without reference to any streets or lots or plat, she, by this action, withdrew her offer of dedication. At that time the city of Durham had no jurisdiction over the land covered by the "Hester Subdivision" and therefore had no authority to accept the offer of dedication at the time it was made or at any time before it was withdrawn. Nothing done or attempted by the city of Durham can have the effect of reviving the offer of dedication, which was effectively withdrawn long before the territorial limits of the municipality were extended to include the "Hester Subdivision." It follows, therefore, and we hold that the city of Durham acquired no rights by virtue of the offer of dedication in the land west of Alabama Street situate between the parallel lines of Woodrow Street as shown on the plat of the "Hester Subdivision."

The judgment of the court below is set aside and the cause is remanded for judgment in accord with this opinion.

Reversed.