Janicki v. Lorek

120 S.E.2d 413 (1961) 255 N.C. 53

Alexander J. JANICKI and wife, Mary B. Janicki,
v.
John LOREK and wife, Louise Lorek, and Sophia Lorek.

No. 166.

Supreme Court of North Carolina.

June 16, 1961.

Kellum & Humphrey, Wilmington, for plaintiffs-appellants.

Hogue & Hogue, Wilmington, for defendants-appellees.

MOORE, Justice.

There are two assignments of error: (1) "* * * to the court answering issue # 4 `yes.'" (2) "* * * to the signing of the judgment * * *."

As to the first assignment, plaintiffs contend: "* * * that no statute of limitations applies in the instant case and no statute of limitations was pleaded." As to the second assignment, plaintiffs say: "They seek a free and unobstructed use of Cedar Street, as shown on Exhibits * * *. There has been no attempt to withdraw the dedication of this street from the dedication made by the recording of the Map recorded in Book 59, at page 597, Exhibit C."

The assignments raise two questions: (1) Is there an applicable statute of limitations pleaded and, if so, does it bar plaintiffs' cause of action? (2) Do the stipulations, admissions in the pleadings, and issues as answered support the judgment?

Decision in this case involves interpretation and proper application of G.S. § 136-96, relating to the abandonment of roads and streets after dedication, and the withdrawal thereof from dedication.

Plaintiffs contend that the only statute of limitations contained in G.S. § 136-96 is the provision that where dedication "was made less than twenty (20) years prior to April 28, 1953," if the street was never opened and used, the right to a public or private easement therein "may be asserted within one year from and after April 28, 1953." This provision was not pleaded. Furthermore, it is wholly inapplicable to the facts in this case. The dedication herein was made more than twenty years prior to April 28, 1953.

G.S. § 136-96 provides inter alia: "Every strip * * * of land which shall have been at any time dedicated to public use as a * * * street * * *, or for any other purpose * * * by a * * * map * * * or other means, which shall not have been actually opened and used by the public within fifteen (15) years from and after the dedication thereof, shall be thereby conclusively presumed to have been abandoned by the public for the purposes for which same shall have been dedicated * * *." (Emphasis added.) But the conclusive presumption does not arise as a matter of course at the end of the fifteen-year period. According to the further provisions of the statute the abandonment shall not be presumed until a declaration of withdrawal is executed and recorded in the county wherein the land is situate by those persons entitled to withdrawal the dedication. If the dedicator is a corporation and if the corporation is dissolved and ceases to exist, the title to the strip of land "shall be conclusively presumed to be vested in those persons * * * owning lots or parcels of land adjacent thereto," and such persons may withdraw the strip from dedication. G.S. § 136-96. Steadman v. Town of Pinetops, 251 N.C. 509, 112 S.E.2d 102.

The dedication of a street shown on a subdivision map is but a revocable offer as to the public, and dedication is not complete until the offer is accepted, and if not accepted by the public within fifteen years after offer of dedication, the offer may be withdrawn pursuant to G.S. § 136-96; but if accepted by the public, by opening and using the street, at any time before withdrawal, the dedication is complete and it may not thereafter be withdrawn. Steadman v. Town of Pinetops, supra; Town of Blowing Rock v. Gregorie, 243 N.C. 364, 367-368, 90 S.E.2d 898; Rowe v. City of Durham, 235 N.C. 158, 161, 69 S.E.2d 171.

In the instant case it has been established by the admissions in the pleadings, the stipulations and the first three issues answered by the court (to which there are no exceptions) that Cedar Street was dedicated more than fifteen years prior to 26 July 1954, that Cedar Street has never been opened or used for the purposes for which it was dedicated, and that defendants executed and had recorded a declaration of withdrawal of Cedar Street from dedication on 26 July 1954 pursuant to the provisions of G.S. § 136-96. It is therefore conclusively presumed that the strip of land in question has been abandoned by the public, and by reason of the fifteen-year limitation and the recording of the declaration of withdrawal the public is barred of all rights or causes of action with respect thereto.

The question arises, are plaintiffs merely members of the general public and therefore barred, or do they own a parcel of land within the subdivision for the benefit of which Cedar Street was dedicated?

"Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots * * * the purchaser of a lot or lots acquires the right to have all and each of the streets kept open; and it makes no difference whether the streets be in fact opened or accepted" by the public. "There is a dedication, and if they are not actually opened at the time of the sale they must be at all times free to be opened as occasion may require." Steadman v. Town of Pinetops, supra [251 N.C. 509, 112 S.E.2d 106]; Hine v. Blumenthal, 239 N.C. 537, 544, 80 S.E.2d 458. A purchaser of lots in a subdivision acquires a vested right to have all and each of the streets shown on the map kept open for his benefit. Town of Blowing Rock v. Gregorie, supra; Rowe v. City of Durham, supra. "The plan or scheme indicated on the map or plat is regarded as a unity, and it is presumed, as well it may be, that all the public ways add value to all lots embraced in the general plan or scheme * * *. (I)t is just to presume that purchasers paid the added value, and the donor (or his successors in interest) ought not, therefore, to be permitted to take it from them by revoking part of his dedication." (Parentheses ours.) Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 786, 7 S.E.2d 13, 19.

G.S. § 136-96 has no application and a street may not be withdrawn from dedication, over objection of one owning a lot or lots within the subdivision, if the street "be necessary to afford convenient ingress or egress to" such lot or lots. Hine v. Blumenthal, supra; Russell v. Coggin, 232 N.C. 674, 677, 62 S.E.2d 70; Foster v. Atwater, 226 N.C. 472, 473, 38 S.E.2d 316; Sheets v. Walsh, 217 N.C. 32, 6 S.E.2d 817. Where it is sought to withdraw a street of a subdivision from dedication, and a lot in the subdivision abutting on this street has no other way of ingress or egress, it will be conclusively presumed that the street is "necessary to afford convenient ingress or egress" to or from the lot, and, in the absence of consent by the lot owner to the withdrawal, G.S. § 136-96 has no application and the dedication may not be withdrawn irrespective of lapse of time or whether or not the street has been opened and used. G.S. § 136-96 (last paragraph).

In a case in which a lot in a subdivision was contiguous to two streets and it was sought to withdraw one of the streets from dedication, the question as to whether or not the street was necessary for convenient ingress or egress to and from the lot was submitted to the jury. Evans v. Horne, 226 N.C. 581, 39 S.E.2d 612, 614. But on appeal this Court strongly intimated that withdrawal from dedication under the circumstances was not permissible as a matter of law, saying: "Moreover, in the light of the holdings of this Court * * *, on the uncontroverted facts, plaintiffs (lot owners) would seem to be entitled to the relief demanded (that the street be not withdrawn from dedication) as a matter of law." (Parentheses ours.) In this connection, the words "continued use of" in the last paragraph of G.S. § 136-96 is construed to mean the continued right to use.

Where a lot in a subdivision does not abut on the street or the portion of the street sought to be withdrawn from dedication pursuant to G.S. § 136-96, the question as to whether or not such street or portion thereof is necessary to afford convenient ingress to and egress from such lot is one of fact to be determined by the jury, or the judge when jury trial is waived. Hine v. Blumenthal, supra; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889.

A person who purchases a lot or parcel of land situate outside the boundaries of a subdivision has no rights with respect to the dedicated streets of the subdivision other than those enjoyed by the public generally. Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153. When the rights of the public are withdrawn and barred, the rights of the owner of the land outside the subdivision are thereby extinguished with respect to the street or streets of the subdivision withdrawn from dedication. One who purchases a parcel of land outside a subdivision, but at the "dead-end" of a street of the subdivision, acquires no more right to the use of the street than the public generally, and is not entitled to share the rights and interests therein of owners of lots within the subdivision abutting on the street. Cohen v. Board of Trustees, Ky. 1955, 276 S.W.2d 26.

Where the owner of a large tract of land makes a "key map" of the entire tract showing the exterior boundaries, and in a general way, the relative location of blocks and lots and the general location of streets, yet the map is not sufficiently definite in its details to furnish a correct description of any lot, block or street and was not intended nor used for the purpose of description or sale in the actual conveyance of property, and, thereafter, the owner makes separate subdivisional maps of parts of the whole tract, giving in detail and with accuracy the description of lots and blocks and streets adjacent thereto, and conveyances are made by reference to these subdivisional maps, then, and in such case, the subdivisional maps are not to be regarded as a unit, but the question of dedication and estoppel between the owner and a purchaser of a lot will apply only to the divisional map on which the lot purchased appears, and the various subdivisions will not be regarded as integral parts of the entire tract as a whole. It is the offer of sale by the particular plat, and the sale in accordance therewith that is the material thing which determines the rights of the parties. Stephens Co. v. Myers Park Homes Co., 181 N.C. 335, 107 S.E. 233. Accord: Hidgon v. Jaffa, 231 N.C. 242, 248, 56 S.E.2d 661; Myers Park Homes Co. v. Falls, 184 N.C. 426, 115 S.E. 184.

In the case at bar, before the fourth issue could be answered it was necessary to determine whether or not it was the intent of the corporation dedicator that townsite and farms should be one composite subdivision or separate subdivisions, that is, whether it intended to dedicate Cedar Street to the use and benefit of Farm F as a part of a composite subdivision. If the subdivisions are separate and distinct by intent of the corporation dedicator, Farm F lies outside the townsite subdivision and plaintiffs have no more rights with respect to Cedar Street than the public generally. All rights of the public are concededly barred to that portion of Cedar Street in question if Farm F does not lie within the subdivision of which Cedar Street is a part, for in that case all the owners of land in the subdivision adjacent to the strip withdrawn joined in the withdrawal.

The trial court resolved this crucial question against plaintiffs. It decided, in effect, that it was the intent of the corporation to dedicate Cedar Street only in relation to the townsite. There are substantial undisputed facts to support this conclusion. It is true that the townsite subdivision is shown on the farms subdivision maps. There are in evidence two such maps of farms subdivision, Exhibits C and D. Townsite appears on these maps in skeleton form, and seems to have been so placed to show relative position rather than to create a composite map to be referred to for the sale of lots and farms. Hine v. Blumenthal, supra, 239 N.C. at page 545, 80 S.E.2d at page 465. These maps show the streets and blocks of townsite. The streets are named but dimensions are not given. The blocks are not numbered and are not divided into lots. No building lots could be sold by reference to either of these maps. The townsite and farms maps were made and recorded at different times. On townsite map, Exhibit B, all streets are shown to be 50 feet wide, except Ash which is 35, and Mulberry which is 18. On farms maps the roads are either 18 feet or 24 feet wide. The farms subdivision contains only farms, and townsite subdivision contains only building lots. On both farms maps Cedar Street is closed at the north end by a line drawn from the northwest corner of Block 26 to the northeast corner of Block 28. The north end of this street is also closed in this manner on the townsite map. Mulberry Street is open at the north end on Exhibit C. Farm F fronts on Peachtree Street (U. S. Highway 117) a distance of 382 feet. While plaintiffs' deed was not made by the dedicator, Cedar Street is not mentioned anywhere in the deed, though a boundary description is given. Cedar Street has never been used by any of the owners of Farm F, though it was dedicated in 1906.

The fact that the corporation owned both the townsite and farms and developed the two as contiguous subdivisions does not of itself make them one composite subdivision as a matter of law. Stephens Co. v. Myers Park Homes Co., supra. As to whether they constitute one composite subdivision is, as already indicated, a question of intent of the corporation. The intent to dedicate is the very life of every dedication. Nicholas v. Salisbury Hardware & Furniture Co., 248 N.C. 462, 468, 103 S.E.2d 837; Milliken v. Denny, 141 N.C. 224, 230, 53 S.E. 867. "Where the facts are undisputed and admit of but one legal interpretation or can lead to but one conclusion, the question of intention and dedication is one of law." Spicer v. City of Goldsboro, 226 N.C. 557, 560, 39 S.E.2d 526, 528. But where more than one conclusion may be drawn from undisputed facts, the broad question of the intention of the dedicator has been held to be a question of fact, and consequently for the jury. 16 Am.Jur., Dedication, § 88, p. 424.

In the case at bar the material facts are not in dispute. The trial court undoubtedly considered that the question of the intention of the dedicator was a matter of law, that only one inference was permissible, and that this question is controlled by the decision in Stephens Co. v. Myers Park Homes Co., supra. We are inclined to agree. The intent of the owner and dedicator is to be gathered from matters appearing in the chain of title and may not be established by parol. Craven County v. First-Citizens Bank & Trust Co., 237 N.C. 502, 514, 75 S.E.2d 620. But from the state of the record, it is unnecessary to decide whether the intention of the dedicator was an issue of fact or a question of law, for it is our opinion that the consent of plaintiffs that the court might answer the fourth issue as a matter of law authorized the court to draw the inferences on preliminary and subordinate questions necessary for the answering of the issue. The record does not disclose that plaintiffs requested that an issue be submitted to the jury on this question of intention, or tendered such issue. The judgment recites that counsel agreed that "there were certain issues which should be answered by the court prior to the submission of any issues to the jury." At the close of the evidence the court announced that the four issues which appear in the record "arise on the pleadings and the evidence in this case, which are issues of law and should be answered by the court, and there being no objection, the court answered the issues * * *." (Emphasis added.) Under certain circumstances jury trial may be waived by failure to object. Driller Company v. Worth, 117 N.C. 515, 23 S.E. 427. Jury trial may be waived "by oral consent, entered in the minutes." G.S. § 1-184(3).

On appeal, plaintiffs still do not object to the determination of the question by the court. The first assignment of error is based on exception "to the court answering Issue #4 `yes.'" The exception is to the answer and not to the answering. Plaintiffs' contention on this assignment is that there is no statute of limitations involved and none pleaded. But G.S. § 136-96 provides that if the public does not use a street within 15 years after dedication, and this lapse of time is followed by withdrawal from dedication, "no person shall have any * * * cause of action thereafter, to enforce any public * * * easement therein." Plaintiffs' pleadings allege the facts upon which this limitation arises and the facts thus alleged are admitted by defendants, and defendants further aver "that the property described * * * has never been used as a street and that the said property has never been opened as a street and that the plaintiffs and their predecessors have never used the said property as a street since the map of said property was recorded in the year 1906 and that the plaintiffs have no right to use the said property, the defendants being the sole owners thereof." The plea of a statute of limitations is not good if it merely states that the party pleads the statute. "When the facts showing the lapse of time are pleaded, the pleader becomes entitled to the benefit of the plea as a matter of law." Allen v. Seay, 248 N.C. 321, 323, 103 S.E.2d 332, 333; Jennings v. Morehead City, 226 N.C. 606, 39 S.E.2d 610.

Plaintiffs' contentions on the first assignment of error raise no question relative to the intention of dedicator as to the dedication of Cedar Street. For the reasons stated in the preceding paragraph the first assignment of error is not sustained.

The second and final assignment of error is to the signing of the judgment. An exception to the judgment presents the sole question, whether the facts found and admitted are sufficient to support the judgment, that is, whether there is error on the face of the record. Moore v. Crosswell, 240 N.C. 473, 82 S.E.2d 208; Hall v. Hall, 235 N.C. 711, 714, 71 S.E.2d 471.

In the case at bar it appears from the admissions in the pleadings, the stipulations and the issues as answered by the court that Cedar Street was dedicated in 1906, that dedicator did not intend to dedicate it with respect to farms subdivision and Farm F, that plaintiffs as to Cedar Street are members of the public generally, that Cedar Street has never been opened and used for the purposes for which it was dedicated, that dedicator was a corporation which was dissolved prior to 26 July 1954 and was not in existence on that date, that defendants were entitled to withdraw and did withdraw Cedar Street from dedication on 26 July 1954, and that plaintiffs' cause of action is barred. The judgment is fully supported and there is no error on the face of the record.

In this view of the matter, the issues raised by plaintiffs' pleadings—(1) whether Cedar Street is necessary to afford convenient ingress to and egress from Farm F, and (2) whether plaintiffs are tenants in common with defendants with respect to the strip of land in question—are not reached and do not arise.

The judgment below is

Affirmed.