General Greene Inv. Co. v. Greene, G-

• Decision Date: 05 August 1980
• Docket Number: No. 7918SC864,G-,I,7918SC864
• Citation: 268 S.E.2d 810,48 N.C.App. 29
• Parties: GENERAL GREENE INVESTMENT COMPANY, Kermit G. Phillips, II, and Wife, Jeannette S. Phillips, v. Edward I. GREENE et ux. Esther Z. Greene,nc., a North Carolina Corporation and Underwood Realty Co., a North Carolina Corporation and the City of Greensboro, the State of North Carolina.
• Court: North Carolina Court of Appeals

Page 810

268 S.E.2d 810

48 N.C.App. 29

GENERAL GREENE INVESTMENT COMPANY, Kermit G. Phillips, II and Wife, Jeannette S. Phillips, v. Edward I. GREENE et ux. Esther Z. Greene, G-K, Inc., a North Carolina Corporation and Underwood Realty Co., a North Carolina Corporation and the City of Greensboro, the State of North Carolina.

No. 7918SC864.

Court of Appeals of North Carolina.

Aug. 5, 1980.

J. Bruce Morton and Kent Lively, Greensboro, for plaintiffs-appellants.

J. Sam Johnson, Jr., Greensboro, for defendants-appellees Edward I. Greene and G-K, Inc.

John W. Hardy and Douglas, Ravenel, Hardy, Crihfield & Bullock, Greensboro, for defendant Underwood Realty Company.

PARKER, Judge.

In separate judgments dated 3 July 1979 the trial court granted the motions of defendants Edward I. Greene, G-K, Inc. and Underwood Realty Company for dismissal under Rule 12(b)(6) and for summary judgment under Rule 56. Because matters outside the pleadings were considered, we review the judgments under the standard applicable under Rule 56. Thus, defendants were entitled to summary judgment dismissing plaintiffs' action if the record discloses that there is no genuine issue as to the material facts which establish the nonexistence of plaintiffs' claims. In making that determination, the court must view all material furnished in support of and in opposition to the motions for summary judgment in the light most favorable to the plaintiffs as the parties opposing the motion. The movants have the burden of showing that there is no triable issue of fact and that they are entitled to judgment as a matter of law. Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978).

Applying these principles to the present case, we hold that summary judgments were properly entered. Plaintiffs' first claim for relief rests upon the theory that they possess certain dedicatory rights which entitle them to have Retreat Street maintained as an open street furnishing them access from the 3.5 acre tract of land to Wendover Avenue in Greensboro. The description in the 1 June 1971 deed from G-K, Inc. to plaintiff Investment Company referred to a plat of "Camp Stokes Property" recorded in Plat Book 2, Page 45, Guilford County Registry, and described a portion of the land conveyed as being a part of the "Camp Stokes Property." The deed from plaintiff Investment Company to plaintiffs Kermit G. Phillips, II and wife, Jeannette S. Phillips, was not attached as an exhibit to the record. Even if it be assumed, however, that that deed also made reference to the plat, the record discloses that plaintiffs have no rights by way of dedication in Retreat Street.

The general principle is that where an owner has certain property platted, showing lots, streets, or alleys, and sells lots with reference to the plat, he thereby dedicates the streets and alleys to the use of those who purchase the lots and their successors in interest. Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736 (1918); Green v. Miller, 161 N.C. 24, 76 S.E. 505 (1912). As to those private parties, the dedication is irrevocable, except with the consent of the municipality acting on behalf of the public and the consent of those persons having vested rights in the dedication. Steadman v. Pinetops, 251 N.C. 509, 112 S.E.2d 102 (1960); Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898 (1956). Even if the deed to the Phillips plaintiffs was made with reference to the plat of the "Camp Stokes property", on which Retreat Street was shown as an open street, the record discloses that Retreat Street had been closed and effectively withdrawn from dedication by resolution of the City Council of the City of Greensboro on 21 August 1967, prior to the time any of the plaintiffs acquired title.

At that time G.S. 153-9(17) (now G.S. 160A-299) granted to the governing body of a municipality the power to close any street or road or portion thereof upon the following conditions: (1) notification by registered letter to adjoining property owners who did not join in the request for the closing; (2) publication of notice; (3) determination by the governing body "that the closing of said road is not contrary to the public interest and that no individual owning property in the vicinity of said street or road or in the subdivision in which is located said street or road will thereby be deprived of reasonable means of ingress and egress to his property." The statute provided further that Upon the closing of a street or road in accordance with the provisions hereof, all right, title and interest in such portion of such street or road shall be conclusively presumed to be vested in those persons, firms or corporations owning lots or parcels of land adjacent to such portion of such street or road, and the title of each of such persons, firms or corporations shall, for the width of the abutting land owned by such persons, firms or corporations, extend to the center of such street or road.

Plaintiffs contend that, despite the resolution of the City Council closing Retreat Street, plaintiff Investment Company purchased the property upon the representation that Retreat Street was open and that they are not bound by the resolution on the grounds that it was indexed only under the City of Greensboro in the grantor index in the Register of Deeds office in Guilford County and that the record does not disclose that notices required by G.S. 153-9(17) were given. This contention is without merit. In its resolution of 21 August 1967 the City Council found that notice that the hearing was to be held had been duly published and that the owners of all of the property abutting both sides of the portion of Retreat Street to be closed and requested such closing in writing. ¹ No appeal was taken from the Council's action as allowed by G.S. 153-9(17). Because all of the abutting owners did consent to the closing, no other notices by mail to landowners were required by G.S. 153-9(17), and plaintiffs may not collaterally attack the Council's finding that notice of the hearing was duly published.

Further, we conclude that indexing of the resolution of the City Council closing Retreat Street under the name of the City of Greensboro, without also indexing it under the names of the abutting landowners who acquired the fee simple title to the portion closed, was all that G.S. 153-9(17) required. The statute provided only that a certified copy of the resolution of the governing body closing a street "shall be recorded in the office of the register of deeds office". The vesting of title to the closed street in the abutting landowners as a result of the resolution occurred not by conveyance from the municipality, but an operation of law.

There being no genuine issue of material fact as to the validity of the City Council's resolution closing the portion of Retreat Street abutting the property which plaintiffs acquired, the question remains whether any such issue exists with respect to plaintiffs' claim of title to the strip of land representing what was formerly Retreat Street. As a...