Hine v. Blumenthal

80 S.E.2d 458 (1954) 239 N.C. 537

HINE et al.
v.
BLUMENTHAL et ux.

No. 741.

Supreme Court of North Carolina.

March 3, 1954.

Hastings & Booe and Ratcliff, Vaughn, Hudson, Ferrell & Carter, Winston-Salem, for appellants.

Womble, Carlyle, Martin & Sandridge, Winston-Salem, for appellees.

DENNY, Justice.

The two primary questions which must he answered on this appeal may be stated as follows: (1) May the status of the parties with respect to their rights in the 15-foot alley involved herein be determined under the provisions of the Declaratory Judgment Act, G.S. § 1-253 et seq.? (2) Does the easement granted in the deed from George Roediger and wife to Rangie Davis, which easement is now held by the defendants, give them an easement in that portion of the 15-foot alley which lies to the rear of Lot No. 7, as shown on Exhibit 10?

The Declaratory Judgment Act authorizes courts of record within their respective jurisdictions to declare rights, status, and other legal relations whether or not further relief is or could be claimed. G.S. § 1-253. The Act also provides, among other things, that any person interested in a deed, will, or written contract, may bring an action to determine any question of construction or validity arising in such deed, will, or contract, and "obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof." G.S. § 1-254. Moreover, G.S. § 1-256 contains the following provisions: "The enumeration in sections 1-254 and 1-255 does not limit or restrict the exercise of the general powers conferred in section 1-253 in any proceedings where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty." Brandis v. Trustees of Davidson College, 227 N.C. 329, 41 S.E.2d 833; Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450.

In our opinion the present controversy is one that may be adjudicated pursuant to the provisions of the Declaratory Judgment Act. In fact, we have heretofore held that the rights of parties with respect to an easement appurtenant, or by way of necessity may be determined in such an action. Carver v. Leatherwood, 230 N.C. 96, 52 S.E.2d 1.

It will be noted, however, that when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. G.S. § 1-260.

The plaintiffs, as owners of a dominant easement, certainly have the power to release their rights in such easement, and such release, when properly executed, probated and recorded, would be binding on a subsequent purchaser of the dominant estate. 28 C.J.S., Easements, § 61(a), page 727 et seq. However, a release by the plaintiffs of their easement rights in the 15-foot alley involved herein, would in nowise affect the obligation of the owners of the servient estate with respect to their responsibility to the defendants, if they have any, in connection with that portion of the alley now sought to be closed. Hence, since the defendants allege and contend that they do have easement rights in that portion of the alley which lies to the rear of Lot No. 7 as shown on Exhibit 10, we hold the heirs of George Roediger, the present owners of the fee in the entire alley, subject to the easement referred to herein, are necessary parties to this action. G.S. § 1-260. Therefore, they should be made parties plaintiff, but if they will not come in voluntarily and be made parties plaintiff, they should be brought in as parties defendant and required to show cause, if any they have, why the judgment in this action should not be binding on them. G.S. § 1-73; Bullard v. Johnson, 65 N.C. 436; Walker v. Miller, 139 N.C. 448, 52 S.E. 125, 1 L.R.A.,N.S., 157, 111 Am. St.Rep. 805, 4 Ann.Cas. 601; Choate Rental Co v. Justice, 212 N.C. 523, 193 S.E. 817; Jones v. Griggs, 219 N.C. 700, 14 S.E.2d 836; Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892; Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843.

The owner of Lot No. 8, having already leased it to Kress for the entire period that Kress seeks to close the alley, and since she has no title interest in the alley, we hold she is not a necessary party to this action. Moreover, since the owners of Lot No. 6 have released all their right, title and interest in and to that portion of the alley now sought to be closed by Kress, if they have any interest therein, during the term of its lease, or any renewals or extensions thereof, in our opinion they are not necessary parties to the action. It is further held that since Kress has agreed to lease the plaintiffs' property only in the event it is determined that the alley in the rear of said property may be closed, it is likewise not a necessary party to the proceeding.

We must now decide whether the defendants, who are the present owners of the easement rights contained in the deed dated 20 September, 1909, from George Roediger and wife to Rangie Davis, have such rights in that portion of the 15-foot alley which lies to the rear of Lot No. 7 as shown on Exhibit 10, as to require it to be kept open for their use and benefit.

In this jurisdiction it is well settled that when land is subdivided into lots and a map is made thereof, showing streets and alleys, and lots are sold with reference to such map, the owner of the subdivision thereby dedicates the streets and alleys to the use of those who purchase the lots; and it makes no difference whether the streets and alleys be in fact opened or accepted by the governing board of the town or city in which the property lies. Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664; Russell v. Coggin, 232 N.C. 674, 62 S.E.2d 70; Evans v. Horne, 226 N.C. 581, 39 S.E.2d 612; Foster v. Atwater, 226 N.C. 472, 38 S.E.2d 316; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889; Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13. However, when land has been so dedicated and the streets or alleys have not been opened for a period of fifteen years from and after dedication, they are conclusively presumed to have been abandoned by the public, provided the dedicator, or those claiming under him, shall file a certificate in the registrar's office in the county where the land lies, withdrawing the dedication in the manner provided by G.S. § 136-96, as amended by Chapter 1091, 1953 Session Laws of North Carolina. Russell v. Coggin, supra; Sheets v. Walsh, 217 N.C. 32, 6 S.E.2d 817; Irwin v. City of Charlotte, 193 N.C. 109, 136 S.E. 368.

Where a withdrawal of property from dedication has been made as authorized by statute, all the streets and alleys as shown on the map of such subdivision may be disregarded, except such streets and alleys as shall be necessary to afford convenient ingress and egress to any lot or parcel of land sold and conveyed by the dedicator of such street or alley. Russell v. Coggin, supra; Evans v. Horne, supra; Insurance Co. v. Carolina Beach, supra; Irwin v. Charlotte, supra.

We cite the above statute and decisions of this Court for the purpose of showing that when streets and alleys are withdrawn from dedication in the manner authorized by statute, they become private property and may not be subjected to any easement by reason of the previous dedication, except where it is necessary to use such street or alley to afford convenient ingress and egress to any lot or parcel of land previously sold and conveyed by the dedicator of such street or alley.

The alley under consideration is a private one; the lots adjacent to it were not sold with reference to any plat or map and the court so found. The court further found that the 10-foot alley, shown on Exhibit 10, was, on 20 September, 1909, and is now, a private alley extending from Liberty Street along the rear of the property of P. A. Thompson and others to Main Street; that the 15-foot alley, shown on the above exhibit, extends from the 10-foot alley to the Rominger Furniture Company building which extends from Liberty Street to Main Street, and that it occupied the same location on 20 September, 1909. Moreover, it is not contended that the defendants have ever had or ever will have any way of ingress and egress to the rear of their property over this 15-foot alley, except from and to the 10-foot alley leading from Liberty Street to Main Street. Their property fronts on Liberty Street; it is bound on the south by the 10-foot alley referred to above and on the east by the 15-foot alley which is the subject of this controversy.

The trial judge made a personal inspection of the premises by agreement of the parties and in company with the attorneys representing the plaintiffs and the defendants; and we do not think his findings in respect thereto had any prejudicial effect on the rights of the defendants, and their exceptions directed thereto are overruled.

In our opinion, the language used by George Roediger and wife, in granting the easement under consideration, indicates an intent on their part to limit the easement to one of ingress and egress to the respective properties conveyed. It will be noted that the grantee in each deed was given the right to use the 15-foot alley situate on the east side of the described property and leading to the 10-foot alley in the rear of P. A. Thompson and others.

We think the original grantors of the respective easements in the 15-foot alley realized that that part of the alley which lies to the north of Lots Nos. 5, 6, and 7 respectively, and which ended then and now in a cul-de-sac, was of no useful purpose to the respective grantees. Hence, they gave them an easement in that part of the alley situate on the east side of the property described in the respective deeds and to that portion of the alley leading from the respective properties to the 10-foot alley herein described. On the other hand, if it be conceded that reference to the 15-foot alley in the deeds was descriptive of the alley, rather than a limitation on the grant, the defendants, as owners of the easement applicable to Lot No. 5 as shown on Exhibit 10, are entitled to exercise only such rights thereunder as may be necessary to a reasonable and proper enjoyment of their premises. 17 Am.Jur., Easements, section 96, page 993 et seq.; Lidgerwood Estates, Inc. v. Public Service Electric & Gas Co., 113 N.J.Eq. 403, 167 A. 197; Diamond State Telephone Co. v. Maclary, 18 Del. Ch. 142, 156 A. 223; Crosier v. Shack, 213 Mass. 253, 100 N.E. 607, L.R.A.1918A, 260; Horton v. Shacklett, 20 Tenn.App. 72, 95 S.W.2d 936. Cf. Miller v. Weingart, 317 Ill. 179, 147 N.E. 804, and Wood v. Woodley, 160 N.C. 17, 75 S.E. 719, 41 L.R.A.,N.S., 1107.

In 28 C.J.S., Easements, § 78, page 753, in discussing easements by express grant, it is said: "While the grant of an easement carries with it whatever is essential to its enjoyment, nothing passes by implication as incident to the grant except what is reasonably necessary to its fair enjoyment". Likewise, "the creation of a private way does not take from the owner of the land over which it passes any portion of the fee of the soil. Regardless of how acquired, a private way carries with it by implication only such incidents as are necessary to its reasonable enjoyment." 17 Am.Jur., Easements, section 101, page 998 et seq., and cited cases.

In Stevens v. Headley, 69 N.J.Eq. 533, 62 A. 887, 893, the Headley Road led from an established street known as South street and ended in a cul-de-sac. The Court held Headley Road was a private way. One Lidgerwood had purchased two lots on Headley Road located about 625 feet from where it entered South street. The owners of all the lots at or near the dead end of Headley Road sold them together with other adjacent but undeveloped lands, consisting altogether of five acres, to Frederick W. Stevens, the plaintiff. Stevens under-took to close the road from its dead end to his northeast line, which line was a distance of approximately 250 feet southwest of Lidgerwood's lots and more than 1,000 feet from South street. Lidgerwood, one of the defendants in the case, opposed the closing of any part of the road. Therefore, the identical question now before us was presented to the Court of Chancery of New Jersey. Pitney, V. C., speaking for the Court, said: "I am unable to see how Lidgerwood will be injured in the least by the closing of this road, as proposed by the complainant. The case is not only bare of any proof that he bought with a view of making any use of or deriving any benefit from the existence of the road at the point in question or that he can possibly derive any benefit therefrom, but, on the contrary, it abundantly appears that the sole use that he expected to make of the road was to have access over it to South street. I have said that the object of an estoppel is to promote justice. To set it up and enforce it in this instance would, in my judgment, work a gross injustice on the Headleys and the complainant, since it would simply give to Mr. Lidgerwood a right to injure them without benefiting himself or his land, except in so far as it gave him power to compel the parties to buy him off."

In the case of Patrick v. Jefferson Standard Life Insurance Co., 176 N.C. 660, 97 S.E. 657, 662, it is pointed out that when reading a deed or deeds and considering the attendant circumstances, it is not difficult to reach a satisfactory conclusion as to what the parties meant; we are required by the settled canon of construction to so interpret such deed or deeds as to ascertain and effecutate the intention of the parties. Walker, J., speaking for the Court, said: "Their meaning, it is true, must be expressed in the instruments, but it is proper to seek for a rational purpose in the language and provisions of the deed and to construe them consistently with reason and common sense. If there is any doubt entertained as to the real intention, we should reject that interpretation which plainly leads to injustice and adopt that one which conforms more to the presumed meaning, because it does not produce unusual and unjust results."

The defendants cite in support of their contentions the cases of Aspinwall v. Enterprise Development Co., 165 Ga. 83, 140 S.E. 67, and Frawley v. Forrest, 310 Mass. 446, 38 N.E.2d 631, 138 A.L.R. 999, and similar cases. The facts in these cases are clearly distinguishable from those on the present record.

After a careful consideration of the questions presented on this appeal, we are of the opinion that the court below reached the correct conclusion.

The judgment will be affirmed in so far as the present parties are concerned, but remanded for further proceedings with respect to additional parties as pointed out herein.

Remanded.

BOBBITT, J., took no part in the consideration or decision of this case.