Commercial Finance Corp. v. Langston , 24 N.C. App. 706 ( 1975 )

212 S.E.2d 176 (1975) 24 N.C. App. 706

COMMERCIAL FINANCE CORPORATION
v.
Jessie W. LANGSTON et al.

No. 7413SC27.

Court of Appeals of North Carolina.

March 5, 1975. Certiorari Denied May 6, 1975.

Moore & Melvin by James R. Melvin, Elizabethtown, for plaintiff appellant.

Frank T. Grady and John G. McDougald, Elizabethtown, for defendant appellees.

Certiorari Denied by Supreme Court May 6, 1975.

PARKER, Judge.

Separate owners of adjoining tracts record a plat showing subdivision of both tracts into lots served by streets crossing both tracts. Each owner then sells lots from his tract to third parties, in so doing making reference to the recorded plat. Do purchasers of lots from one tract thereby acquire the right to have the streets across the other tract remain open? We hold that they do.

It is well settled in this State that when an owner of land has it subdivided and platted into streets and lots and thereafter sells a lot by reference to the plat, nothing else appearing the purchaser acquires the right to have the streets shown on the plat kept open for his reasonable use. Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964); Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13 (1940); Collins v. Land Co., 128 N.C. 563, 39 S.E. 21 (1901); Annot., 7 A.L.R. 2d 607.

"In a strict sense it is not a dedication, for a dedication must be made to the public and not to part of the public. It is a right in the nature of an easement appurtenant. Whether it be called an easement or a dedication, the right of the lot owners to the use of the streets, parks and playgrounds may not be extinguished or diminished except by agreement or estoppel. This is true because the existence of the right was an inducement to and a part of the consideration for the purchase of the lots." Land Corp. v. Styron, 7 N.C.App. 25, 27-28, 171 S.E.2d 215, 217 (1969).

Here, the separate owners of the separate but contiguous tracts, Watkins and Cox (later Drye), by placing on record the plat recorded in Plat Book 4, page 169, showing the subdivision of both tracts into lots served by streets running across both tracts, and by each owner thereafter selling lots by reference to the recorded plat, effectively represented to purchasers of lots from either tract that the streets as shown on the entire plat would be available and would remain open for reasonable use. In effect, each of the separate owners thereby created a joint and reciprocal easement which was both a burden and a benefit to his separate tract, and a purchaser of a lot or lots from either owner by such purchase acquired the benefit of the appurtenant easement over all of the streets shown on the plat and not merely over those portions of the streets which were located on the tract owned separately by his immediate grantor.

In its brief on this appeal plaintiff appellant contends that the court erred in making Finding of Fact No. 3 which states that "Edna Cox Drye subdivided Lots one (1) and two (2) of the Harry L. Melvin Subdivision and placed of record a plat of said subdivision as recorded in Map Book 4, at page 169, Bladen County Registry." In support of this contention, appellant argues in its brief that "[t]he defendant [sic] introduced no evidence whatsoever to prove that Edna Cox Drye ever recorded, authorized, or caused to be recorded" the map in question. Appellant's contention must fail, first, because there is but one exception in the entire record, and that is directed to the signing of the judgment, and "[a]n exception to the judgment does not present for review the findings of fact or the evidence on which they are based," 1 Strong, N.C.Index 2d, Appeal and Error, § 28, p. 157, and, second, because it was unnecessary in this case for defendants to introduce any evidence to prove the finding of fact which plaintiff now attempts to challenge. That finding is fully supported by the pleadings. In paragraph 3 of defendants' further answer it was expressly alleged that Edna Smathers Cox Drye subdivided her property "and placed of record in Map Book 4, at page 169, a map of said property." This allegation was admitted in plaintiff's reply.

Finally, plaintiff contends that because its predecessor in title acquired title to its waterfront lot and an appurtenant easement over the 24-foot-wide strip of land here in controversy prior to the time the plat showing the street over that strip of land was recorded, Edna Smathers Cox Drye had no right to grant rights in the street to anyone excepting only to purchasers of lots subdivided from her separate property. We find this contention without merit. All that was granted to plaintiff's predecessor in title in the 24-foot-wide strip of land here in controversy was "an easement of way for the use of pedestrians and vehicles." In the deed by which this grant was made the grantors expressly reserved unto themselves and their heirs and assigns generally "a like easement in thereto the same," and nothing in this reservation indicates that it was to be solely for the benefit of the grantors' then remaining land. Since the grantors at that time also retained the fee title to the 24-foot-wide strip, the only significance which can logically attach to their expressed reservation of "a like easement in thereto the same" must be to make clear that the grant of the "easement of way for the use of pedestrians and vehicles" did not exclude the possibility of similar use of the property by others. We see nothing in the grant of the nonexclusive "easement of way for the use of pedestrians and vehicles" which prevented the grantors from thereafter granting similar easements to others, including even unto the public generally had they chosen to do so.

The judgment appealed from is

Affirmed.

BRITT and VAUGHN, JJ., concur.