Janicki v. Lorek, 166

• Decision Date: 16 June 1961
• Docket Number: No. 166,166
• Citation: 255 N.C. 53,120 S.E.2d 413
• Court: North Carolina Supreme Court
• Parties: Alexander J. JANICKI and wife, Mary B. Janicki, v. John LOREK and wife, Louise Lorek, and Sophia Lorek.

Page 413

120 S.E.2d 413

255 N.C. 53

Alexander J. JANICKI and wife, Mary B. Janicki, v. John LOREK and wife, Louise Lorek, and Sophia Lorek.

No. 166

Supreme Court of North Carolina.

June 16, 1961

Kellum & Humphrey, Wilmington, for plaintiffs-appellants.

Hogue & Hogue, Wilmington, for defendants-appellees.

MOORE, Justice.

There are two assignments of error: (1) '* * * to the court answering issue # 4 'yes."' (2) '* * * to the signing of the judgment * * *.'

As to the first assignment, plaintiffs contend: '* * * that no statute of limitations applies in the instant case and no statute of limitations was pleaded.' As to the second assignment, plaintiffs say: 'They seek a free and unobstructed use of Cedar Street, as shown on Exhibits * * *. There has been no attempt to withdraw the dedication of this street from the dedication made by the recording of the Map recorded in Book 59, at page 597, Exhibit C.'

The assignments raise two questions: (1) Is there an applicable statute of limitations pleaded and, if so, does it bar plaintiffs' cause of action? (2) Do the stipulations, admissions in the pleadings, and issues as answered support the judgment?

Decision in this case involves interpretation and proper application of G.S. § 136-96, relating to the abandonment of roads and streets after dedication, and the withdrawal thereof from dedication.

Plaintiffs contend that the only statute of limitations contained in G.S. § 136-96 is the provision that where dedication 'was made less than twenty (20) years prior to April 28, 1953,' if the street was never opened and used, the right to a public or private easement therein 'may be asserted within one year from and after April 28, 1953.' This provision was not pleaded. Furthermore, it is wholly inapplicable to the facts in this case. The dedication herein was made more than twenty years prior to April 28, 1953.

G.S. § 136-96 provides inter alia: 'Every strip * * * of land which shall have been at any time dedicated to public use as a * * * street * * *, or for any other purpose * * * by a * * * map * * * or other means, which shall not have been actually opened and used by the public within fifteen (15) years from and after the dedication thereof, shall be thereby conclusively presumed to have been abandoned by the public for the purposes for which same shall have been dedicated * * *.' (Emphasis added.) But the conclusive presumption does not arise as a matter of course at the end of the fifteenyear period. According to the further provisions of the statute the abandonment shall not be presumed until a declaration of withdrawal is executed and recorded in the county wherein the land is situate by those persons entitled to withdrawal the dedication. If the dedicator is a corporation and if the corporation is dissolved and ceases to exist, the title to the strip of land 'shall be conclusively presumed to be vested in those persons * * * owning lots or parcels of land adjacent thereto,' and such persons may withdraw the strip from dedication. G.S. § 136-96. Steadman v. Town of Pinetops, 251 N.C. 509, 112 S.E.2d 102.

The dedication of a street shown on a subdivision map is but a revocable offer as to the public, and dedication is not complete until the offer is accepted, and if not accepted by the public within fifteen years after offer of dedication, the offer may be withdrawn pursuant to G.S. § 136-96; but if accepted by the public, by opening and using the street, at any time before withdrawal, the dedication is complete and it may not thereafter be withdrawn. Steadman v. Town of pinetops supra; Town of Blowing Rock v. Gregorie, 243 N.C. 364, 367-368, 90 S.E.2d 898; Rowe v. City of Durham, 235 N.C. 158, 161, 69 S.E.2d 171.

In the instant case it has been established by the admissions in the pleadings, the stipulations and the first three issues answered by the court (to which there are no exceptions) that Cedar Street was dedicated more than fifteen years prior to 26 July 1954, that Cedar Street has never been opened or used for the purposes for which it was dedicated, and that defendants executed and had recorded a declaration of withdrawal of Cedar Street from dedication on 26 July 1954 pursuant to the provisions of G.S. § 136-96. It is therefore conclusively presumed that the strip of land in question has been abandoned by the public, and by reason of the fifteen-year limitation and the recording of the declaration of withdrawal the public is barred of all rights or causes of action with respect thereto.

The question arises, are plaintiffs merely members of the general public and therefore barred, or do they own a parcel of land within the subdivision for the benefit of which Cedar Street was dedicated?

'Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots * * * the purchaser of a lot or lots acquires the right to have all and each of the streets kept open; and it makes no difference whether the streets be in fact opened or accepted' by the public. 'There is a dedication, and if they are not actually opened at the time of the sale they must be at all times free to be opened as occasion may require.' Steadman v. Town of Pinetops, supra [251 N.C. 509, 112 S.E.2d 106]; Hine v. Blumenthal, 239 N.C. 537, 544, 80 S.E. 2d 458. A purchaser of lots in a subdivision acquires a vested right to have all and each of the streets shown on the map kept open for his benefit. Town of Blowing Rock v. Gregorie, supra; Rowe v. City of Durham, supra. 'The plan or scheme indicated on the map or plat is regarded as a unity, and it is presumed, as well it may be, that all the public ways add value to all lots embraced in the general plan or scheme * * *. (I)t is just to presume that purchasers paid the added value, and the donor (or his successors in interest) ought not, therefore, to be permitted to take it from them by revoking part of his dedication.' (Parentheses ours.) Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 786, 7 S.E.2d 13, 19.

G.S. § 136-96 has no application and a street may not be withdrawn from dedication, over objection of one owning a lot or lots within the subdivision, if the street 'be necessary to afford convenient ingress or egress to' such lot or lots. Hine v. Blumenthal, supra; Russell v. Coggin, 232 N.C. 674, 677, 62 S.E.2d 70; Foster v. Atwater, 226 N.C. 472, 473, 38 S.E.2d 316; Sheets v. Walsh, 217 N.C. 32, 6 S.E.2d 817. Where it is sought to withdraw a street of a subdivision from dedication, and a lot in the subdivision abutting on this street has no other way of ingress or egress, it will be conclusively presumed that the street is 'necessary to afford convenient ingress or egress' to or from the lot, and, in the absence of consent by the lot owner to the withdrawal, G.S. § 136-96 has no application and the dedication may not be withdrawn irrespective of lapse of time or whether or not the street has been opened and used. G.S. § 136-96 (last paragraph).

In a case in which a lot in a subdivision was contiguous to two streets and it was sought to withdraw one of the streets from dedication, the question as to whether or not the street was necessary for convenient ingress or egress to and from the lot was submitted to the jury. Evans v. Horne, 226 N.C. 581, 39 S.E.2d 612, 614. But on appeal this Court strongly intimated that withdrawal from dedication under the circumstances was not permissible as a matter of law, saying: 'Moreover, in the light of the holdings of this Court * * *, on the uncontroverted facts, plaintiffs (lot owners) would seem to be entitled to the relief demanded (that the street be not withdrawn from dedication) as a matter of law.' (Parentheses ours.) In this connection, the words 'continued use of' in the last paragraph of G.S. § 136-96 is construed to mean the continued right to use.

Where a lot in a subdivision does not abut on the street or the portion of the street sought to be withdrawn from dedication pursuant to G.S. § 136-96, the question as to whether or not such street or portion thereof is necessary to afford convenient ingress to and egress from such lot is one of fact to be determined by the jury, or the judge when jury trial is waived. Hine v. Blumenthal, supra; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889.

A person who purchases a lot or parcel of land situate outside the boundaries of a subdivision has no rights with respect to the dedicated streets of the subdivision other than those enjoyed by the public generally. Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153. When the rights of the public are withdrawn and barred, the rights of the owner of the land outside the subdivision are thereby extinguished with respect to the street or streets of the subdivision withdrawn from dedication. One who purchases a parcel of land outside a subdivision, but at the 'dead-end' of a street of the subdivision, acquires no more right to the use of the street than the public generally, and is not entitled to share the rights and interests therein of owners of lots within the subdivision abutting on the street. Cohen v. Board of Trustees, Ky. 1955, 276 S.W.2d 26.

Where the owner of a large tract of land makes a 'key map' of the entire tract showing the exterior boundaries, and in a general way, the relative location of blocks and lots and the general location of streets, yet the map is not sufficiently definite in its details to furnish a correct description of any lot, block or street and was not intended nor used for the purpose of description or sale in the actual conveyance of property, and, thereafter, the owner makes separate subdivisional maps of parts of the whole tract, giving in detail and with accuracy the description of lots and blocks and streets adjacent thereto, and conveyances are made by reference to these subdivisional maps, then, and in such case, the...