Andrews v. Country Club Hills, Incorporated

195 S.E.2d 584 (1973) 18 N.C. App. 6

William F. ANDREWS et al.
v.
COUNTRY CLUB HILLS, INCORPORATED and Clyde B. Cline.

No. 7310SC88.

Court of Appeals of North Carolina.

April 11, 1973.

Gulley & Green, by Charles P. Green, Jr., Raleigh, for plaintiffs.

Wolff, Harrell & Mann, by Bernard A. Harrell, Raleigh, for defendants.

BROCK, Judge.

All of defendants' assignments of error relate to that portion of the judgment which held null and void defendant corporation's declaration of withdrawal from dedication of the unnamed street area. Defendants make no exceptions or assignments of error to the judgment as it relates to the Hyde Park area.

In general, the sale of lots by reference to a map or plat which represents a division of a tract of land into streets and lots constitutes an offer to dedicate such streets to public use. This dedication to the public is complete only when the offer is accepted by the responsible public authority. Owens v. Elliott, 258 N.C. 314, 128 S.E.2d 583. G.S. § 136-96 provides for withdrawal of dedication to public use:

"Every strip, piece, or parcel of land which shall have been at any time dedicated to public use as a road, highway, street, avenue, or for any other purpose whatsoever, by a deed, grant, map, plat 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 conclusively presumed to have been abandoned by the public for the purposes for which same shall have been dedicated; and no person shall have any right, or cause of action thereafter, to enforce any public or private easement therein. . . provided, that no abandonment of any such public or private right or easement shall be presumed until the dedicator or some one or more of those claiming under him shall file and cause to be recorded in the register's office of the county where such land lies a dedication withdrawing such strip, piece or parcel of land from public or private use to which it shall have theretofore been dedicated . . . .

"The provisions of this section shall have no application in any case where the continued use of any strip of land dedicated for street or highway purposes shall be necessary to afford convenient ingress or egress to any lot or parcel of land sold and conveyed by the dedicator of such street or highway . . . ."

The provisions of this statute do not apply when the continued use of the street is "necessary to afford convenient ingress or egress" to any lot sold or conveyed by the dedicator. In the present case, the unnamed street has not been opened or used by the public as a street for more than 25 years from the time of its dedication. The dedicator, Country Club Hills, Inc., has complied with the provisions of G.S. § 136-96 and filed a declaration withdrawing the unnamed street from public or private use. Unless the continued use of the street is "necessary to afford convenient ingress or egress," G.S. § 136-96 is applicable to this situation and its effect is to extinguish "any public or private easement" in the dedicated property. The question presented, then, is whether the unnamed street area falls within this statutory exception to the application of G.S. § 136-96.

The only land involved in this case to which plaintiffs have an interest in convenient ingress and egress is the Hyde Park area. Defendants have not challenged the trial court's holding that Hyde Park remains dedicated to public use. Plaintiffs purchased lots by reference to maps which contained the park designation. This park dedication was certainly an inducement to their purchasing lots. The park dedication by Country Club Hills, Inc., was a conveyance within the meaning of the statutory exception to G.S. § 136-96.

The words "continued use of" in the statutory exception to the application of G.S. § 136-96 have been construed to mean the continued right to use. Janicki v. Lorek, 255 N.C. 53, at 60, 120 S.E.2d 413, at 419. This continued right to use is not contingent on some prior use, but is merely a continuance of a right that existed at the time of dedication. The operation of this statutory exception is predicated upon a determination of whether the continued right to use the dedicated street "shall" be necessary to afford convenient ingress or egress to any lot or parcel of land conveyed by the dedicator.

The trial court found that the Hyde Park area was bordered by Pasquotank Drive, Granville Drive, Perquimans Drive, and the 100-foot-wide unnamed street. No determination was made, however, as to whether the continued right to use this unnamed street, in view of the access afforded by the three bordering public streets, "shall" be necessary to afford convenient ingress or egress to the park. The unnamed street may be necessary to afford convenient access to a portion of the park not conveniently reached by the three public streets; or the three public streets, due to their width, the amount of traffic, or some like consideration, may not provide convenient access to the park. This determination was not made by the trial court, and was necessary in order to determine whether the unnamed street came within the statutory exception to G.S. § 136-96. If it is determined that the unnamed street is within the purview of this exception so that G.S. § 136-96 is inapplicable, the withdrawal from dedication of the unnamed street would be ineffective.

The judgment appealed from is reversed as it relates to the unnamed street and this cause is remanded for a determination of the issue heretofore discussed.

Reversed in part, and remanded.

GRAHAM, J., concurs.

VAUGHN, J., dissents and would affirm the judgment from which defendants appealed.