Hinson v. Smith

365 S.E.2d 166 (1988)

Wilbur HINSON and Wife, Irene Hinson
v.
David Harold SMITH and Wife, Mamie W. Smith.

No. 872SC868.

Court of Appeals of North Carolina.

March 1, 1988.

McLendon & Partrick, P.A., by Neal Partrick, Jr., Washington, for plaintiffs-appellants.

Charles L. McLawhorn, Jr., for Greenville, defendants-appellees.

HEDRICK, Chief Judge.

The only question before us is whether the trial court erred in entering the judgment dismissing plaintiffs' claim and declaring that "as a matter of law, the Defendants are entitled to quiet enjoyment of the property in question," and that "as a matter of law, there is no dedication, either expressed or implied, of the controverted property."

Dedication of an easement may be in express terms or may be implied from the owner's conduct. Tise v. Whitaker, 146 N.C. 374, 59 S.E. 1012 (1907). Conduct which implies the intent to dedicate may operate as an express dedication, as where a plat is made and land is sold in reference to the plat. Woody v. Clayton, 1 N.C.App. 520, 162 S.E.2d 132 (1968). In Realty Co. v. Hobbs, 261 N.C. 414, 421, 135 S.E.2d 30, 35-36 (1964), Justice Clifton Moore, writing for the Court, stated:

Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use, and this right is not subject to revocation except by agreement. [Citations omitted.] It is said that such streets, parks and playgrounds are dedicated to the use of the lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. [Citations omitted.] 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, altered or diminished except by agreement or estoppel. [Citations omitted.] 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. [Citations omitted.]

In the present case, when the plat of Crystal Beach Estates was recorded and one lot was sold in reference to the plat, both the street and the "Beach" became private easements to the individual purchasing the lot. The record clearly discloses that Lots 5, 6, and 7 were conveyed to plaintiffs' predecessors in title before Lot 29-A and the "additional tract" of land including a portion of the "Beach" conveyed to defendants' predecessors in title. It is also clear that the conveyances of the lots refer to the recorded plat of Crystal Beach Estates. The deed conveying Lot 29-A and the "additional tract" to defendants even stated that the conveyance was made subject to

[s]uch rights, if any, as may have been dedicated to the other lot owners in Crystal Beach Estates by conveyances referring to that map entitled "Plat of Crystal Beach Estates, Commerical [sic] Section" by J. Walter Jones, Jr., Registered Land Surveyor dated July 1964 which is recorded in Map Book 17, page 30, of the Beaufort County Registry.

Contrary to defendants' contentions, the area referred to as "Beach" is clearly identifiable. The recorded plat manifests the intention of CLD to set aside all the area north and west of Lot 29-A, south of the Pamlico River, east of Neville Creek, and north of Driftwood Drive to be a private easement for purchasers and owners of all of the lots described and enumerated on the plat of Crystal Beach Estates recorded in Map Book 17, page 30 of the Beaufort County Registry.

Plaintiffs and other purchasers and owners of lots described in the recorded plat, therefore as a matter of law, had and have a private easement over and across all of the property designated as "Beach" on the recorded plat of Crystal Beach Estates. The judgment for defendants is reversed and the cause remanded to the Superior Court of Beaufort County for further proceedings consistent with this opinion.

Reversed and remanded.

BECTON and SMITH, JJ., concur.