Sampson v. City of Greensboro , 35 N.C. App. 148 ( 1978 )

240 S.E.2d 502 (1978) 35 N.C. App. 148

Alfred K. SAMPSON and wife, Voutline P. Sampson
v.
CITY OF GREENSBORO.

No. 7718SC107.

Court of Appeals of North Carolina.

January 24, 1978.

Turner, Rollins, Rollins & Clark by Clyde T. Rollins, Greensboro, for plaintiffs-appellants.

Jesse L. Warren and Dale Shepherd, Greensboro, for defendant-appellee.

VAUGHN, Judge.

Plaintiffs argue that a question of fact exists as to whether "they" authorized the plat to be placed on record. They rest their argument upon the bald denial in their complaint of any knowledge of how it got on record. It is uncontradicted that they employed engineers to prepare the plat of the subdivision, that they petitioned defendant to approve the subdivision as shown on the plat, and that it was accepted and approved by defendant. They do not deny that they signed the plat and thereby ". . . dedicate to public use as streets, playgrounds, parks, open spaces, and easements forever all areas so shown or indicated on said plat." The trial judge correctly concluded that no question of material fact existed as to the approval of the subdivision and the proper dedication of the easement shown on the plat. In one breath, plaintiffs claim all the benefits that are afforded by the defendant's approval of their subdivision and, at the same time, seek to withdraw the burdens on the land that defendant required to be imposed thereon before it would approve the subdivision. The easement appearing on plaintiffs' own map of their subdivision is not a "cloud" on their title.

Plaintiffs next contend that the easement shown on the plat was dedicated for storm sewer purposes only and that defendant cannot use the area for a sanitary sewer. The argument is without merit. Section 19-12(g) of the Greensboro City Code of Ordinances is, in part, as follows:

"All property shown on the plat as dedicated for a public use shall be deemed to be dedicated for any other public use authorized by the city charter or any general, local, or special law pertaining to the city when such other use is approved by the city council in the public interest."

The ordinance provides a valid condition that defendant may lawfully impose before granting approval for the proposed subdivision.

There were no genuine issues of material fact for trial. The court, consequently, properly entered summary judgment in favor of defendant.

Affirmed.

BRITT and PARKER, JJ., concur.