Lee v. Walker

68 S.E.2d 664 (1952) 234 N.C. 687

LEE
v.
WALKER, City Inspector of Buildings et al.

No. 597.

Supreme Court of North Carolina.

February 1, 1952.

Spence & Boyette, Carthage and W. A. Leland McKeithen, Pinehurst, for plaintiff, appellant.

Pollock & Fullenwider, Southern Pines, for defendants, appellees.

DENNY, Justice.

It is now well settled with us that the dedication of a street may not be withdrawn by the grantor or those claiming under him, if the dedication has been accepted and the street or any portion thereof has been opened and is in use by the public. Russell v. Coggin, 232 N.C. 674, 62 S.E.2d 70; Home Real Estate Loan & Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13. Moreover, it is the general rule that, "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, such streets become dedicated to the public use, and 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 governing boards of towns or cities if they lie within municipal corporations." Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 958, 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; Home Real Estate Loan & Insurance Co. v. Carolina Beach, supra; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889; Russell v. Coggin, supra.

It should be kept in mind, however, that the dedication referred to in the rule above stated, in so far as the general public is concerned, without reference to any claim or equity of the purchasers of lots in a subdivision, is but a revocable offer and is not complete until accepted, and neither burdens nor benefits with attendant duties may be imposed upon the public unless in some proper way it has consented to assume them. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Wittson v. Dowling, supra. A town has the right to determine where its streets and alleys shall be. Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695.

In many of our cases in which a dedication is spoken of as irrevocable, the expression has been used with respect to the purchasers, or some of them, who were insisting on their rights in connection with such dedication. Irwin v. Charlotte, supra. And without the consent of the purchasers of lots in a subdivision, the dedication of the streets and alleys shown on the map of such subdivision may not be withdrawn as to them except in the manner provided by law. G.S. § 136-96; Irwin v. Charlotte, supra; Foster v. Atwater, 226 N.C. 472, 38 S.E.2d 316. Such purchasers, however, may lose their right to have streets and alleys opened by permitting them to be occupied and used adversely for more than twenty years for purposes inconsistent with, their use as streets and alleys. Hunter v. West, 172 N.C. 160, 90 S.E." 130; Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104.

In the instant case it must be conceded that there was a dedication of the streets, avenues, alleys, and central squares, as shown on the map of Southern Pines and it does not appear from the record that the dedicator, or his successors in title, have ever withdrawn such dedication in the manner prescribed by G.S. § 136-96. However, the dedication of the alley in question was revocable, in so far as the public and the Town of Southern Pines were concerned, unless there was an acceptance of the offer of dedication prior to the withdrawal thereof by conveyance of the alley to C. D. Tarbell by warranty deed in 1895. 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, supra; Wittson v. Dowling, supra; Irwin v. Charlotte, supra; Atlantic Coast Line R. Co. v. Ahoskic, 202 N.C. 585, 163 S.E. 565; Gault v. Lake Waccamaw, supra; 26 C.J.S., Dedication, § 34(a), p. 93, et seq.

We now come to the question whether the Town of Southern Pines accepted the offer of dedication of the alleys and central squares as designated on the map of Southern Pines. This question has been answered in the negative by a finding of fact in the court below and such finding is supported by competent evidence.

In amending the charter of the Town of Southern Pines by Chapter 274 of the Private Laws of 1891, the Board of Commissioners of the Town of Southern Pines was directed in section 13 of the Act, to keep in repair the streets, sidewalks, and alleys in the town, and to cause the same to be kept clean and in good order. But in section 18 of the same Act, the Board was given power to discontinue any street or streets, park or parks, within the corporate limits of the town whenever it might determine to do so, by making reasonable compensation to owners of property damaged thereby.

The Board of Commissioners being faced with the mandatory provision in the charter of the town to keep in repair approximately fourteen miles of alleyways, determined on 22 February, 1892, to relinquish all the right and title that the town had in such alleyways and parks within each square, or block, within the town, forever.

There being no evidence offered in the hearing below tending to show that the town had previously accepted the dedication of the alleys and parks as shown on the map of Southern Pines, by user or otherwise, the action of the Board was tantamount to a formal rejection of the offer of dedication and was so construed and regarded by the Town of Southern Pines, the original dedicator and his successors in title for more than fifty-eight years prior to the time this controversy arose.

According to the findings of fact in the court below, and to which there is no exception, from and after the adoption of the resolution by the Board of Commissioners of Southern Pines, on 22 Febraury, 1892, until the action of the Board in 1950, refusing to issue a building permit to the plaintiff, the town had at all times recognized these alleys and parks as private property. As evidence of this fact, the town has never at any time opened up or kept in repair a single one of the alleys or parks shown on the map of Southern Pines. Prior to October 1950 it had, without a single exception, issued building permits for the construction of buildings upon and across the alleys shown on said map whenever requested, including the alley in question. And while it does not appear in the findings of fact, it does appear in the evidence adduced in the hearing below that the Town of Southern Pines and the Board of Commissioners of Moore County have through all these years treated these alleys and parks as private property and required them to be listed for tax purposes. Likewise, the Town of Southern Pines, whenever it has paved a street along which any of these alleys abut, the alleys have been treated as private property and duly assessed in the names of the owners thereof for the prorata part of the cost of such paving.

The mere collection of taxes on dedicated property ordinarily will not estop a municipality from asserting the public character of the land dedicated, but it is a factor that may be considered, and may, in connection with other circumstances, estop the city from asserting the dedication. 26 C.J.S., Dedication, § 63(a), p. 151.

Another significant fact in connection with the action of the Town of Southern Pines on 22 February, 1892, is that the dedicator thereafter conveyed these alleys and parks as private property giving warranty deeds therefor. And the particular alleyway now in dispute was conveyed to C. D. Tarbell on 2 March, 1895, by warranty deed. The plaintiff and his predecessors in title have owned this alleyway under warranty deeds for nearly fifty-seven years. And no part of the alley has been opened and used by the public in the meantime. Moreover, according to the record, there has been a building or buildings located on Lot 4 in Block K & 4, and the alley in question, for more than fifty years since the lot and alley were conveyed to C. D. Tarbell in 1895.

In our opinion, in view of the facts found by the court below, it makes no difference whether the resolution passed by the Board of Commissioners of Southern Pines on 22 February, 1892, be considered a renunciation of the offer of dedication of the alleys and parks referred to therein, or as an intention to abandon such alleyways and parks pursuant to the authority contained in its charter. In either event, the Town of Southern Pines, by reason of such action and its conduct since that time, is now estopped from asserting any right to the alleyway in question in its own behalf or in behalf of the public or any other party or parties.

The provisions of G.S. § 1-45 which provide that the statute of limitations shall not run against a municipality or other governing body of public ways where the the streets, alleys and parks have been dedicated and accepted by the municipality or other governing board, does not apply to streets, alleys and parks that have been offered for dedication and the offer has not been accepted; or if accepted, the streets, alleys or parks have been abandoned. Gault v. Lake Waccamaw, supra; Mayor and Aldermen of City of Savannah v. Bartow Inv. Co., 137 Ga. 198, 72 S.E. 1095; Clokey v. Wabash Ry. Co., 353 111. 349, 187 N.E. 475; Mebane v. City of Wynne, 127 Ark. 364, 192 S.W. 221; United Finance Corp. v. Royal Realty Corp., 172 Md. 138, 191 A. 81; Charles C. Gardiner Lumber Co. v. Graves, 63 R.I. 345, 8 A.2d 862; Reynolds v. City of Alice, Tex.Civ. App., 150 S.W.2d 455, 465; 26 C.J.S., Dedication, § 62, p. 150, et seq.

In the last cited case, it is said: "A mutually acquiesced in abandonment of a public easement terminates same, and frees the property in the hands of the grantor from such easement."

In Mebane v. City of Wynne, supra [127 Ark. 364, 192 S.W. 223], the Court said: "There having been no acceptance by or for the public, the dedication may become extinct either by an express withdrawal on the part of the original dedicator or by his death before acceptance, or by lapse of time. So, according to that rule, the present attempt on the part of the public authorities to accept the dedication and put the property in use comes too late. The statutory exemption of cities from the operation of the general statute of limitations with respect to public property has no application in this case for the reason that the public rights have never accrued and there are no such rights in existence to be exempted."

Likewise, in the case of United Finance Corp. v. Royal Realty Corp., supra [172 Md. 138, 191 A. 85.] it is said: "Whether the basis for the relief be called equitable estoppel, or abandonment and reverter, is a mere matter of terminology of little relative importance, except to the verbal precisian. For in any case it involves the principle that one who having an easement of way whether public or private suffers his right to lie fallow and unused for a long period of time and throughout the period suffers the owners of the servient tenement not only to use it as though no such right existed, but actually acquiesces in such use by taking taxes or other charges assessed against it or profits therefrom as though no such easement existed, or by permitting any uses of the land inconsistent with the existence of the easement, may be held to have sufficiently manifested such an intention of abandoning the right as will estop him from asserting it."

It is clear in the instant case, in view of the findings of fact disclosed by the record, that the defendants are not entitled to have the alley in question opened for public use. And if those who are protesting the issuance of the building permit requested by the plaintiff, own property in the subdivision, as shown on the map of Southern Pines, are of the opinion that they have any easement rights in the alley in question, the Town of Southern Pines and its officials are not the proper parties to enforce those rights.

An action for the enforcement of a private easement in a street or alley may be maintained only by an owner or owners of property who are entitled to have the easement enforced and preserved. However, unless facts are made to appear which are substantially different from those found on the present record, no private rights to an easement in the alley in question exist.

The court below having found that the plaintiff has performed all the acts necessary and required by law to entitle him to a building permit from the authorities of the Town of Southern Pines, and having found that by reason of the conduct of the defendant Board of Commissioners of the Town of Southern Pines the defendants are "estopped in law and equity from attempting to use or regard the alleys and center squares as public thoroughfares over which any portion of the public have a right to travel," the court should have granted to the plaintiff the relief sought.

The judgment of the court below is set aside and the cause remanded to the end that judgment may be entered in accord with this opinion.

Error and Remanded.