Elizabeth City v. Commander

• Decision Date: 11 September 1918
• Docket Number: 27.
• Citation: 96 S.E. 736,176 N.C. 26
• Parties: ELIZABETH CITY v. COMMANDER.
• Court: North Carolina Supreme Court

96 S.E. 736

176 N.C. 26

ELIZABETH CITY v. COMMANDER.

No. 27.

Supreme Court of North Carolina

September 11, 1918

Appeal from Superior Court, Pasquotank County; Whedbee, Judge.

Action by Elizabeth City against J. C. Commander. Judgment for plaintiff, and defendant appeals. No error.

Deed by following description with words, "The description herein made is according to a plat recorded, * * * " incorporated the plat in the deed as a part of the description.

This is an action to have what is known as Dyer street, in Elizabeth City, declared a public street, and to prevent the defendant from obstructing the same. The land covered by Dyer street is a part of 17 acres of land formerly belonging to J. W Hinton, and by successive conveyances the title to the whole 17 acres was vested in Bush & Lippincott in 1881. In July 1881, Bush & Lippincott had the land surveyed and platted and subdivided into lots, which were numbered and streets which were named, including Dyer street. The plat of this survey was registered in Pasquotank county in Book 4, pages 38 and 39, and is as follows:

(Image Omitted)

On September 11, 1882, W. H. Smith executed a deed to R. H Berry purporting to convey some of said lots "subject to any vested or prescribed rights of the corporation of Elizabeth City and others as to Dyer street." On September 15, 1882, the surviving partners of Bush & Lippincott executed a deed to the said R. H. Berry, conveying several of the lots on the plat by the following description: "Situate in the county of Pasquotank, state of North Carolina, in the town of Elizabeth City, known as 'Parsonage' property, bounded on the north or northeast by the remaining part of lot No. 30, 38 feet wide, extending from Dyer to Poplar street, on the easterly side by the Academy lot and Hinton lots, on the south by Parsonage street or Cotter street, on the westerly side by Poplar street. The description herein made is according to a plat recorded in the office of the register of deeds of Pasquotank county in Book 4, pages 38 and 39."

The defendant claims under this deed, and the boundaries named therein cover Dyer street; the deed to the defendant himself being executed by N.W. Stevens on December 9, 1907, and containing the following clause:

"This deed is made subject to any right the town may have to lay out Dyer street as per the Conrow, Bush & Lippincott plat, as recorded in Book 4, pages 38 and 39."

After the execution of the deed to Berry, the survivors of Bush & Lippincott executed several deeds to different parties, conveying lots by numbers to different parties, and calling for the streets thereon, although none of these deeds called for Dyer street. The plaintiff relied on other deeds and contracts to show a dedication of Dyer street to the use of the public prior to making and recording of the plat; but, in the view taken by the court of the questions involved, it is not necessary to state the facts in regard thereto. At the conclusion of the evidence his honor instructed the jury to answer the issues in favor of the plaintiff if they believed the evidence, and the defendant excepted. There was a verdict for the plaintiff, and from the judgment pronounced thereon the defendant appealed.

J. B. Leigh and Meekins & McMullan, all of Elizabeth City, for appellant.

Aydlett, Simpson & Sawyer, of Elizabeth City, for appellee.

ALLEN J.

The defendant concedes that the survey and plat made by Bush & Lippincott, subdividing the land into lots and laying off streets thereon, including Dyer street, was an offer to dedicate the street to the use of the public, and that if this offer had been accepted by the city, or if lots had been conveyed calling for the streets, before the revocation of the offer by Bush & Lippincott, the offer would then have been irrevocable; but he contends that there was no acceptance of offer and no deed calling for streets executed prior to the execution of the deed to Berry on September 15, 1882, and that, as this conveyed the street, it was a revocation of the offer.

This position of the defendant is fully sustained by the authorities, if the deed to Berry is a revocation; but, if not a revocation, the subsequent deeds by Bush & Lippincott calling for streets and referring to the plat are an irrevocable dedication, although Dyer street was not referred to. Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282; Collins v. Land Co., 128 N.C. 564, 39 S.E. 21, 83 Am. St. Rep. 720; Hughes v. Clark, 134 N.C. 459, 46 S.E. 956, 47 S.E. 462; Bailliere v. Shingle Co., 150 N.C. 637, 64 S.E. 754; Green v. Miller, 161 N.C. 29, 76 S.E. 505, 44 L. R. A. (N. S.) 231; Sexton v. Elizabeth City, 169 N.C. 390, 86 S.E. 344; Wheeler v. Construction Co., 170 N.C. 428, 87 S.E. 221. The court says in Conrad v. Land Co.

"If the owner of land lays it off into squares, lots, and streets, with a view to form a town or city, or as a suburb to a town or...