Lee v. Walker

• Decision Date: 01 February 1952
• Docket Number: No. 597,597
• Court: North Carolina Supreme Court
• Parties: LEE, v. WALKER, City Inspector of Buildings et al.

Page 664

68 S.E.2d 664

234 N.C. 687

LEE, v. WALKER, City Inspector of Buildings et al.

No. 597

Supreme Court of North Carolina.

Feb. 1, 1952

Spence & Boyette, Carthage and W. A. Leland McKeithen, Pinehurst, for plaintiff, appellant.

Pollock & Fullenwider, Southern Pines, for defendants, appellees.

DENNY, Justice.

It is now well settled with us that the dedication of a street may not be withdrawn by the grantor or those claiming under him, if the dedication has been accepted and the street or any portion thereof has been opened and is in use by the public. Russell v. Coggin, 232 N.C. 674, 62 S.E.2d 70; Home Real Estate Loan & Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13. Moreover, it is the general rule that, '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, such streets become dedicated to the public use, and 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 governing boards of towns or cities if they lie within municipal corporations.' Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 958, 47 S.E. 462; Conrad v. West End Hotel & Land Co., 126 N.C. 776, 36 S.E. 282; Green v. Miller, 161 N.C. 24, 76 S.E. 505, 44 L.R.A.,N.S., 231; Sexton v. Elizabeth City, 169 N.C. 385, 86 S.E. 344; Wheeler v. Charlotte Consol. Construction Co., 170 N.C. 427, 87 S.E. 221; Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18; Stephens Co. v. Myers Park Homes Co., 181 N.C. 335, 107 S.E. 233; Home Real Estate Loan & Insurance Co. v. Carolina Beach, supra; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889; Russell v. Coggin, supra.

It should be kept in mind, however, that the dedication referred to in the rule above stated, in so far as the general public is concerned, without reference to any claim or equity of the purchasers of lots in a subdivision, is but a revocable offer and is not complete until accepted, and neither burdens nor benefits with attendant duties may be imposed upon the public unless in some proper way it has consented to assume them. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Wittson v. Dowling, supra. A town has the right to determine where its streets and alleys shall be. Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695.

In many of our cases in which a dedication is spoken of as irrevocable, the expression has been used with respect to the purchasers, or some of them, who were insisting on their rights in connection with such dedication. Irwin v. Charlotte, supra. And without the consent of the purchasers of lots in a subdivision, the dedication of the streets and alleys shown on the map of such subdivision may not be withdrawn as to them except in the manner provided by law. G.S. § 136-96; Irwin v. Charlotte, supra; Foster v. Atwater, 226 N.C. 472, 38 S.E.2d 316. Such purchasers, however, may lose their right to have streets and alleys opened by permitting them to be occupied and used adversely for more than twenty years for purposes inconsistent with their use as streets and alleys. Hunter v. West, 172 N.C. 160, 90 S.E. 130; Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104.

In the instant case it must be conceded that there was a dedication of the streets, avenues, alleys, and central squares, as shown on the map of Southern Pines and it does not appear from the record that the dedicator, or his successors in title, have ever withdrawn such dedication in the manner prescribed by G.S. § 136-96. However, the dedication of the alley in question was revocable, in so far as the public and the Town of Southern Pines were concerned, unless there was an acceptance of the offer of dedication prior to the withdrawal thereof by conveyance of the alley to C. D. Tarbell by warranty deed in 1895. Kennedy v. Williams, 87 N.C. 6; Stewart v. Frink, 94 N.C. 487; State v. Long, 94 N.C. 896; State v. Fisher, 117 N.C. 733, 23 S.E. 158; Sugg v. Greenville, supra; Wittson v. Dowling, supra; Irwin v. Charlotte, supra; Atlantic Coast Line R. Co. v. Ahoskie, 202 N.C. 585, 163 S.E. 565; Gault v. Lake Waccamaw, supra; 26 C.J.S., Dedication, § 34(a), p. 93, et seq.

We now come to the question whether the Town of Southern Pines accepted the offer of dedication of the alleys and central squares as designated on the map of Southern Pines. This question has been answered in the negative by a finding of fact in the court below and such finding is supported by competent evidence.

In amending the charter of the Town of Southern Pines by Chapter 274 of the Private Laws of 1891, the Board of Commissioners of the Town of Southern Pines was directed in section 13 of the Act, to keep in repair the streets, sidewalks, and alleys in the town, and to cause the same to be kept clean and in good order. But in section 18 of the same Act, the Board was given power to discontinue any street or streets, park or parks, within the corporate limits of the town whenever it might determine to do so, by making reasonable compensation to owners of property damaged thereby.

The Board of Commissioners being faced with the mandatory provision in the charter of the town to keep in repair approximately fourteen miles of alleyways, determined on 22 February, 1892, to relinquish all the right and title that the town had in such alleyways and parks within each square, or block, within the town, forever.

There being no evidence offered in the hearing below tending to show that the town had previously accepted the dedication of the alleys and parks as shown on the map of Southern Pines, by user or otherwise, the action of the Board was tantamount to a formal rejection of the offer of dedication and was so construed and regarded by the Town of Southern Pines, the original dedicator and his successors in title for more than fifty-eight years prior to the time this controversy arose.

According to the findings of fact in the court below, and to which there is no exception, from and after the adoption of the resolution by the Board of Commissioners of Southern Pines, on 22 Febraury, 1892, until the action of the Board in 1950, refusing to issue a building permit to the plaintiff, the town had at all times recognized these alleys and parks as private property. As evidence of this fact, the town has never at any time opened up or kept in repair a single one of the alleys or parks shown on the map of Southern Pines. Prior to October 1950 it had, without a single exception, issued building permits for the construction of buildings upon and in the alleys shown on said map whenever requested, including the alley in question. And while it does not appear in the findings of fact, it does appear in the evidence adduced in the hearing below that the Town of Southern Pines and the Board of Commissioners of Moore County have through all these years treated these alleys and parks as private property and required them to be listed for tax purposes. Likewise, the Town of Southern Pines, whenever it has paved a street along which any of these alleys abut, the alleys have been treated as private property and duly assessed in the names of the owners thereof for the prorata part of the cost of such paving.

The mere collection of taxes on dedicated property ordinarily will not...