Hine v. Blumenthal

• Decision Date: 03 March 1954
• Docket Number: No. 741,741
• Citation: 239 N.C. 537,80 S.E.2d 458
• Court: North Carolina Supreme Court
• Parties: HINE et al. v. BLUMENTHAL et ux.

Page 458

80 S.E.2d 458

239 N.C. 537

HINE et al. v. BLUMENTHAL et ux.

No. 741

Supreme Court of North Carolina.

March 3, 1954

Hastings & Booe and Ratcliff, Vaughn, Hudson, Ferrell & Carter, Winston-Salem, for appellants.

Womble, Carlyle, Martin & Sandridge, Winston-Salem, for appellees.

DENNY, Justice.

The two primary questions which must be answered on this appeal may be stated as follows: (1) May the status of the parties with respect to their rights in the 15-foot alley involved herein be determined under the provisions of the Declaratory Judgment Act, G.S. § 1-253 et seq.? (2) Does the easement granted in the deed from George Roediger and wife to Rangie Davis, which easement is now held by the defendants, give them an easement in that portion of the 15-foot alley which lies to the rear of Lot No. 7, as shown on Exhibit 10?

The Declaratory Judgment Act authorizes courts of record within their respective jurisdictions to declare rights, status, and other legal relations whether or not further relief is or could be claimed. G.S. § 1-253. The Act also provides, among other things, that any person interested in a deed, will, or written contract, may bring an action to determine any question of construction or validity arising in such deed, will, or contract, and 'obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof.' G.S. § 1-254. Moreover, G.S. § 1-256 contains the following provisions: 'The enumeration in sections 1-254 and 1-255 does not limit or restrict the exercise of the general powers conferred in section 1-253 in any proceedings where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.' Brandis v. Trustees of Davidson College, 227 N.C. 329, 41 S.E.2d 833; Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450.

In our opinion the present controversy is one that may be adjudicated pursuant to the provisions of the Declaratory Judgment Act. In fact, we have heretofore held that the rights of parties with respect to an easement appurtenant, or by way of necessity may be determined in such an action. Carver v. Leatherwood, 230 N.C. 96, 52 S.E.2d 1.

It will be noted, however, that when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. G.S. § 1-260.

The plaintiffs, as owners of a dominant easement, certainly have the power to release their rights in such easement, and such release, when properly executed, probated and recorded, would be binding on a subsequent purchaser of the dominant estate. 28 C.J.S., Easements, § 61(a), page 727 et seq. However, a release by the plaintiffs of their easement rights in the 15-foot alley involved herein, would in nowise affect the obligation of the owners of the servient estate with respect to their responsibility to the defendants, if they have any, in connection with that portion of the alley now sought to be closed. Hence, since the defendants allege and contend that they do have easement rights in that portion of the alley which lies to the rear of Lot No. 7 as shown on Exhibit 10, we hold the heirs of George Roediger, the present owners of the fee in the entire alley, subject to the easement referred to herein, are necessary parties to this action. G.S. § 1-260. Therefore, they should be made parties plaintiff, but if they will not come in voluntarily and be made parties plaintiff, they should be brought in as parties defendant and required to show cause, if any they have, why the judgment in this action should not be binding on them. G.S. § 1-73; Bullard v. Johnson, 65 N.C. 436; Walker v. Miller, 139 N.C. 448, 52 S.E. 125, 1 L.R.A.,N.S., 157, 111 Am. St.Rep. 805, 4 Ann.Cas. 601; Choate Rental Co v. Justice, 212 N.C. 523, 193 S.E. 817; Jones v. Griggs, 219 N.C. 700, 14 S.E.2d 836; Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892; Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843.

The owner of Lot No. 8, having already leased it to Kress for the entire period that Kress seeks to close the alley, and since she has no title interest in the alley, we hold she is not a necessary party to this action. Moreover, since the owners of Lot No. 6 have released all their right, title and interest in and to that portion of the alley now sought to be closed by Kress, if they have any interest therein, during the term of its lease, or any renewals or extensions thereof, in our opinion they are not necessary parties to the action. It is further held that since Kress has agreed to lease the plaintiffs' property only in the event it is determined that the alley in the rear of said property may be closed, it is likewise not a necessary party to the proceeding.

We must now decide whether the defendants, who are the present owners of the easement rights contained in the deed dated 20 September, 1909, from George Roediger and wife to Rangie Davis, have such rights in that portion of the 15-foot alley which lies to the rear of Lot No. 7 as shown on Exhibit 10, as to require it to be kept open for their use and benefit.

In this jurisdiction it is well settled that when land is subdivided into lots and a map is made thereof, showing streets and alleys, and lots are sold with reference to such map, the owner of the subdivision thereby dedicates the streets and alleys to the use of those who purchase the lots; and it makes no difference whether the streets and alleys be in fact opened or accepted by the governing board of the town or city in which the property lies. Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664; Russell v. Coggin, 232 N.C. 674, 62 S.E.2d 70; Evans v. Horne, 226 N.C. 581, 39 S.E.2d 612; Foster v. Atwater, 226 N.C. 472, 38 S.E.2d 316; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889; Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13. However, when land has been so dedicated and the streets or alleys have not been opened for a period of fifteen years from and after dedication, they are conclusively presumed to have been abandoned by the public, provided the dedicator, or those claiming under him, shall file a certificate in the registrar's office in the county where the land lies, withdrawing the dedication in the manner provided by G.S. § 136-96, as amended by Chapter 1091, 1953 Session Laws of North Carolina. Russell v. Coggin, supra; Sheets v. Walsh, 217 N.C. 32, 6 S.E.2d 817; Irwin v. City of Charlotte, 193 N.C. 109, 136 S.E. 368.

Where a withdrawal of property from dedication has been made as authorized by statute, all the streets and alleys as shown on the map of such subdivision may be disregarded, except such streets and alleys as shall be necessary to afford convenient ingress and egress to any lot or parcel of land sold and conveyed by the dedicator of such street or alley. Russell v. Coggin, supra; Evans v. Horne, supra; Insurance Co. v. Carolina Beach, supra; Irwin v. Charlotte, supra.

We cite the above statute and decisions of this Court for the purpose of showing that when streets and alleys are withdrawn from dedication in the manner authorized by statute, they become private property and may not be subjected to any easement by reason of the previous dedication, except where it is necessary to use such street or alley to afford convenient ingress and egress to any lot or parcel of land previously sold and conveyed by the dedicator of such street or alley.

The alley under consideration is a private one; the lots adjacent to it were not sold with reference to any plat or map and the court so found. The court further found that the 10-foot alley, shown on Exhibit 10, was, on 20 September, 1909, and is now, a private alley extending from Liberty Street along the rear of the property of P. A. Thompson and others to Main Street; that the 15-foot alley, shown on the above exhibit, extends from the 10-foot alley to the Rominger Furniture Company building which extends from Liberty Street to Main Street, and that it occupied the same location on 20 September, 1909. Moreover, it is not contended that the defendants have ever had or ever will have any way of ingress and egress to the rear of their property...