Green v. Miller

• Full Citation: Green v. Miller, 161 N.C. 24, 76 S.E. 505 (N.C. 1912)
• Decision Date: 27 November 1912
• Citation: 76 S.E. 505,161 N.C. 24
• Parties: GREEN et al. v. MILLER et al.
• Court: North Carolina Supreme Court

76 S.E. 505

161 N.C. 24

GREEN et al. v. MILLER et al.

Supreme Court of North Carolina

November 27, 1912

Appeal from Superior Court, Beaufort County; Webb, Judge.

Action for injunction by J. H. Green and others against A. Miller and another. Judgment for plaintiffs, and defendants appeal. Reversed.

Evidence held to show that neither defendant nor his grantor was chargeable with notice that a former owner had sold lots to plaintiff with reference to a plan showing a street.

This action was brought by J. H. Green, town of Belhaven, Mary A Woodward, A. W. Carty, and others against the defendants, A Miller and W. J. Bullock, and the relief sought is a mandatory injunction compelling the defendants to desist from obstructing any part of Pungo street, which lies within the corporate limits of Belhaven, and to remove therefrom certain buildings or stables now occupied by the defendant A. Miller. The jury returned the following verdict: "(1) Was the defendant Bullock in 1890 the owner in fee of that tract of land in what is now known as Belhaven, bounded on the north by Pantego street, on the east by Pamlico street, on the south by Clark or Front street, and on the west by Allen or Union street? Answer: Yes. (2) Did the defendant Bullock cause this land or any part of it to be surveyed and plotted into lots and streets? Answer: Yes. (3) If so, did the defendant Bullock sell lots in this tract with reference to said plot or survey? Answer: Yes. (4) If this tract or any part of it was surveyed and plotted into lots and streets, did one of the streets so surveyed and plotted correspond with what is now known as Pungo street? Answer Yes. (5) If what is known as Pungo street was surveyed and plotted out, what width was given it in the survey and plot 80 feet; and did it extend from Pamlico to Allen street? Answer: Yes. (6) Is there any obstruction in that lot of land covered by Pungo street, yes; and if so, who maintains it? Answer: A. Miller. (7) Did the defendant Miller have notice, at the time he purchased the land covered by the deed introduced in this action, that any part of it was covered by Pungo street or any street? Answer: No."

Plaintiffs alleged that W. J. Bullock, being the owner of certain land now embraced within the limits of the town of Belhaven, caused the same to be surveyed and laid off into lots and streets, and that the surveyor, at Bullock's request, made a map or plan thereof, and the plaintiffs, other than the town of Belhaven, bought several of the lots from him, according to the said plan or map, some of them being represented on the map as bounded on Pungo street. That one of the streets was designated on the map and in the plan as Pungo street, and that the lots were sold to plaintiffs, other than the town of Belhaven, and described as fronting on Pungo street, which is the third street north of Pungo river; the two intervening streets being Clark and Main. Pungo street runs east and west, crossing Pamlico street, and extends to Allen street and as far west as Haslin street. This is what we gather from the allegations, the map, and the evidence, and, if not precisely accurate, is sufficiently so for all practical purposes. The counsel did not agree as to the correctness of the map, and Pungo street, as claimed by the plaintiffs, may extend north instead of west. There is an allegation in the complaint that the town of Belhaven had accepted the dedication of Pungo street, and that it had become one of the public streets or thoroughfares of the town. The plaintiffs further allege that Bullock sold to L. G. Roper, and he to the defendant Miller, a parcel of land west of Pamlico street, which includes a part of Pungo street, and that defendant Miller has erected in Pungo street, west of Pamlico street, a building which he now occupies and which obstructs the street and greatly interferes with the use thereof. The defendant A. Miller denies all the material allegations of the complaint except the one that he had bought a part of the land from Roper. He specially avers that he purchased from Roper for full value, and if any plan or map of the land was made for Bullock, or any street by the name of Pungo had been dedicated to private or public use, or laid out for either of such uses, he had no notice thereof, nor did he have any notice that the land he bought embraced any part of what is well known and defined on the east side of Pamlico street as Pungo street, nor that there was any such street or any street at all extending across the place where he bought and erected the buildings. It was stated at the hearing in this court, as we understood, and it so appears in the record, that none of the deeds referred to or called for the map, but that the lots described in several of them fronted on Pungo street. It appears that the map was never seen by any purchaser of a lot from Bullock except one J. P. Clark, who found it among his father's papers. Judgment was entered upon the verdict, and the defendants appealed.

Small, McLean & McMullan, of Washington, for appellants.

John G. Tooly, of Belhaven, and Rodman & Rodman, of Washington, for appellees.

WALKER, J. (after stating the facts as above).

It is evident that this case must be decided upon the single question as to whether defendant was a bona fide purchaser for value and without notice of the facts alleged by the plaintiffs to constitute an equitable estoppel, which means that if he is bound thereby he is concluded from now asserting that he is lawfully within the limits of Pungo street, west of Pamlico street, and cannot continue to maintain his stable or other structure. There was much controversy as to whether Pungo street, west of Pamlico street, if represented as such on the Bullock map, had ever actually been laid out by such physical marks and boundaries as to constitute notice to the world that the land corresponding to that so designated on the map had been appropriated for a street and dedicated to the use of Bullock's grantees or to the public. Bullock himself testified that Pungo street, west of Pamlico, "had not been surveyed nor opened up," nor did the surveyor plot all of the land. He further stated that "the surveyor might have surveyed East Pungo street--that is, east of Pamlico street--but he did not survey west of that street, and they did not open any street from Pamlico street westwardly to Haslin street." He still further testified that he employed Mr. Tripp to make the survey, who made a plot for him, but did not plot it all. "It was more than the survey. I have never had the plot. The Clarks made the street themselves. Pamlico street is the only street which has been left like I first cut them out. They have all been changed more or less. Parties built without knowing where the streets were. For instance, this man Pettiford, the husband of Josephine Pettiford." W. W. Walker testified that he bought the land where the stable is from Dr. Bullock; but it seems that the deed was made by Dr. Bullock to L. G. Roper, who in turn sold and conveyed to the defendant A. Miller. The witness Walker, who built the stable, stated that there was no street west of Pamlico, and nothing but a swamp. That the town of Belhaven had notified him, by its proper officers, and while he was setting the pillars, to desist from completing the stable until a committee could be appointed to condemn the street for the town. Afterwards the committee reported, and the commissioners of the town accepted the report as to Pungo street, east of Pamlico, and rejected it as to the land lying west of that street, and authorized him to proceed with his work and finish the building, which he did. He listed the property for taxation and paid the taxes assessed against it. When he was building the stable, there was no street there, but a street called Pungo was opened on the east side of Pamlico. This is only some of the testimony bearing upon the main question in the case. N. L. Sawyer testified: "I live in Washington, and lived in Belhaven 13 years. I know where Miller's stables are. When I lived there it was nothing but swamp and subject to the ebb and flow of the tide. I know when Sir Walker built. There was no sign of any street." There was much more testimony to the same effect. With this evidence behind the verdict to sustain the finding of the jury upon the seventh issue, the court, without disturbing the verdict in any respect, adjudged thereon that defendants remove the buildings from the street called "Pungo," west of Pamlico, enjoined them from maintaining any kind of obstruction therein, and decreed that the street be kept open and free from any impediments, for the use of the inhabitants of the town of Belhaven, without let or hindrance. In this we are of the opinion there was error, and the judgment should have been the other way.

Where the owner of real property lays out a town or village upon it, or even a plot of ground, and divides it into blocks or squares, and subdivides it into lots or sites for residences which are intersected by streets, avenues, and alleys, and he sells and conveys any of the lots with reference to a plan or map made of the property, or where he sells or conveys according to a map of the city or town, in which his land is so laid off, he thereby dedicates the streets and alleys to the...