Gault v. Town of Lake Waccamaw

• Decision Date: 08 April 1931
• Docket Number: 283.
• Citation: 158 S.E. 104,200 N.C. 593
• Parties: GAULT v. TOWN OF LAKE WACCAMAW.
• Court: North Carolina Supreme Court

158 S.E. 104

200 N.C. 593

GAULT v. TOWN OF LAKE WACCAMAW.

No. 283.

Supreme Court of North Carolina

April 8, 1931

Appeal from Superior Court, Columbus County; Daniels, Judge.

Injunctive proceeding by F. B. Gault against the Town of Lake Waccamaw. The trial court sustained the referee's report, and defendant appeals.

Affirmed.

This is an injunctive proceeding brought by plaintiff against the defendant, a municipal corporation "enjoining it from its efforts to require the plaintiff to conform to its said map or its said resolution and that the said official map and the said resolution and the notice to the plaintiff thereunder be declared to constitute a cloud upon the plaintiff's title and removed therefrom, and that plaintiff be declared to be the owner in fee simple of his said lands, free and discharged from any effort or right of the defendant therein in accordance with its said official map."

The complaint, in paragraph 3, sets forth by metes and bounds the land in controversy, and plaintiff prays that the cloud on his title be removed.

"This plaintiff is informed and believes that he is the owner of said lands above described and especially that portion at the south end thereof which the defendant seeks to take and claim as Town Commons, and that he and those under whom he claims have had the same in actual possession under a fence and have reclaimed the same and otherwise used it continually and adversely to all persons for more than 30 years, and the said defendant, and no other person, has attempted to use the same in any respect whatsoever except under and by permission of this plaintiff and his predecessors in title."

The defendant answering says: "3. Answering the 3rd paragraph of the complaint defendant says that insofar as the land described therein covers or conflicts with the public streets, squares, commons or lands belonging to the town of Lake Waccamaw, as set out on a map or plat thereof, which is registered in the office of Register of Deeds of Columbus County in Plat Book No. 1, page 59, the same is denied, and as this defendant has no interest in the lands described in the 3rd paragraph of the complaint which in no way covers or conflicts with the streets, squares and public commons of the defendant town as set out in the map aforesaid, it neither admits nor denies the allegations of the third paragraph of the complaint with reference to such lands."

It sets up an order of defendant requiring plaintiff to remove his fence and other obstructions on the streets, public squares and commons of the defendant which was in the town of Flemington, unincorporated and taken into defendant town under Private Laws 1911, ch. 282. That plaintiff has trespassed on streets, public squares, and commons of defendant and has attempted to lay claim by possession. That in 1852, Josiah Maultsby, the owner of the property, made a map and recorded it, showing public streets, squares, and commons, and executed deeds to various parties and incorporated in the deeds the following:

"And the said Josiah Maultsby doth also give, grant, bargain sell and convey unto the said (grantee) and to all other good citizens the right and privilege to use all the streets, public squares and space between said lake (Lake Waccamaw) and said railroad opposite said town, as public highways, together with all and singular the tenements and hereditaments thereupon belonging or in any wise appertaining."

"That the said streets, public squares and commons of the town of Lake Waccamaw (Flemington) as laid out by the said Josiah Maultsby were dedicated to the use of the public and the public acquired an easement therein, and, with defendants."

A temporary restraining order was issued by Grady, J., December 31, 1928. On January 29, 1929, Judge Cranmer ordered that the restraining order be continued to the final hearing. At February Term, 1930, the matter was referred to Chas. G. Rose, Esq., as referee.

(Defendant excepts to the foregoing order of reference and demands a trial by jury on the issues raised by the pleadings herein).

The referee made a report of the findings of fact and conclusions of law:

"1. Josiah Maultsby owned certain lands in Columbus County, N. C., lying on the north side of Lake Waccamaw and between the lake and the Wilmington & Manchester Railroad--later the Wilmington, Columbia & Augusta Railroad--and now the Atlantic Coast Line Railroad Company, which land is now a part of the Town of Lake Waccamaw and includes the land described in paragraph 3 of the complaint.

"2. Josiah Maultsby, on the 13th day of November, 1852, executed deeds to various parties (setting them forth).

"3. Attached to each of these deeds was a map or plat of the 'Town of Flemington,' showing each lot numbered, together with certain streets, one called 'Broadway,' another called 'Perch Street,' a space next to the lake called 'Commons' and also a space designated thereon as 'Public Square.' The plat was transcribed in the records in the office of the Register of Deeds of Columbus County, N. C., on the margin of the page of Book L, where the said deeds are recorded.

"4. Each of said deeds referred to in the finding No. 2 contains a clause reading: 'And the said Josiah Maultsby doth also give, bargain, grant and sell to the said (grantee in the deed) and to all other good citizens, the right and privilege to use all the streets, public squares and spaces between the said lake and the said railroad opposite the said town as public highways.'

"5. By mesne conveyances, prior to and during the early part of the year of 1894, H. B. Short and C. O. Beers acquired the fee simple to all the lots located in the plat of the 'Town of Flemington,' as well as to a tract of two acres of land lying between 'Flemington' and the lake. Many of the title deeds describe the lots by reference to lot number and by further reference to the registration of the plat in Book L.

"6. By warranty deed dated the 20th day of January, 1894, registered March 3, 1894, in Book KK, page 325, in the office of Register of Deeds for Columbus County, H. B. Short and wife conveyed to C. O. Beers all of the lots which the grantors then owned and which were located west of Broadway, as designated on plat, together with the tract of two acres lying between 'Flemington' and the sand bar of Lake Waccamaw.

"7. At some time during the year of 1894, C. O. Beers erected, and those claiming under him have thereafter continuously, openly and notoriously maintained a fence, practically as now located, around all of the lots which he then owned, around the two acres of land lying north of the lake, and also including the space marked 'Perch Street,' and so much of the space marked "Public Square,' as lies west of Broadway on the said plat of 'Flemington.'

"8. F. B. Gault, plaintiff, under the will of C. O. Beers, owns and is in possession of all the property and rights conveyed to C. O. Beers by deed from H. B. Short and others.

"9. F. B. Gault, plaintiff, and those under whom he claims, have since the date of the deed to C. O. Beers, exercised exclusive and adverse possession and control over all of the lands described in paragraph 3 of the complaint, having erected and lived in a dwelling house on a portion of the land, having planted shrubbery, have planted pecan and other trees thereon, have cultivated portions of the same, have planted and cultivated a garden on the portion of the 'Public Square' which lies west of Broadway, and have otherwise done and exercised acts consistent with complete and exclusive ownership and possession, claiming the property as their own.

"10. More than 20 years ago the railroad company, by and with the consent of C. O. Beers and/or F. B. Gault, erected and for a time maintained two toilets for public use in the swamp or wood north of the lake and south of the Town of "Flemington,' (included in tract of 2 acres), which toilets were approached by wooden walkways, which, for a time, passed over the fence maintained by C. O. Beers and/or F. B. Gault. These toilets have long since been destroyed, and they are not now in use and have not been for several years.

"11. About 1894, shade trees were planted by C. O. Beers and/or F. B. Gault parallel with the western line fence of the property described in paragraph 3 of the complaint, practically at a uniform distance therefrom and on the outside or eastern line of a sidewalk running on the west side of Broadway; many of these trees are 12 inches or more in diameter at their base at the present time.

"12. No one has ever done any acts, consistent with a public use of the same as of right or in, upon any portion of the land described in paragraph 3 of the complaint, or which was in any way adverse to the possession and control of F. B. Gault, and those under whom he claims.

"13. The so-called 'Town of Flemington' was never incorporated. No attempt was ever made at any time to exercise any corporate functions as a municipal corporation, and it was only the name of a particular location as made on the plat prepared for Josiah Maultsby, and referred to in findings 2, 3 and 4.

"14. The Town of Lake Waccamaw was incorporated by the General Assembly of 1911, by chapter 282 of the Private Laws of Session of 1911, and has since that time maintained its existence as a municipal corporation.

"15. By chapter 131, § 1, of the Private Laws of Session 1911 certain trustees therein named were appointed 'to take possession of and look after and protect the public square given by Josiah Maultsby to the citizens of the State of North Carolina,' which said Public Square was by said act in part bounded "on the west by the street or road leading from said W. C. and A. Railroad.' This delineation of the ...