Milliken v. Denny
| Citation | 53 S.E. 867,141 N.C. 224 |
| Parties | MILLIKEN v. DENNY. |
| Decision Date | 24 April 1906 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Guilford County; Ward, Judge.
Action by J. M. Milliken against G. W. Denny. Judgment for defendant, and plaintiff appeals. No error.
Where at the time of executing a deed of property, the grantor neither expressly nor by implication dedicated a strip of land in the deed referred to as an alley to the use of the lot conveyed, thereby creating an easement appurtenant thereto, which passed with the title to the lot to a subsequent grantee, nothing thereafter said or done by the parties would impose the burden on the property.
King & Kimball, for appellant.
Douglas & Douglas and Scales, Taylor & Scales, for appellee.
When this cause was before us at the Spring term, 1904, upon demurrer to plaintiff's complaint, we were of the opinion, and so decided, that the mere fact that the deed from Geo. A. Dick, trustee, and Mrs. Mary A. Dick, the beneficial owner, to Mrs. Julia P. Dick, called for a "stone," thence north 84 degrees and 22 minutes west, 340 feet, along the south side of the 10-foot alley was not per se sufficient to impose an easement upon the 10 feet of land referred to as an alley, which passed to the owners of the lot conveyed. When the decision of this court was certified to the superior court of Guilford, the plaintiff, by leave of the court, amended his complaint to meet the objection raised by the demurrer, by alleging "that at the time the land was conveyed by George A Dick, trustee, and Mrs. Mary E. Dick, to Mrs. Julia P. Dick, the said grantors in said deed owned said 10-foot alley and the land on Percy and Chestnut streets on the opposite side of said alley from the above described lot, and the said grantors conveyed said lot next Summit avenue, a part of which was afterwards conveyed to plaintiffs, to Julia P. Dick, and the said land across said alley to Geo. A. Dick, and left the alley open between said lots for the benefit thereof, and because by doing so the said lots were rendered more convenient and more valuable to the owners." They further allege that said alley was opened and dedicated to the use of the owners of said lots, and also to the use of the public when said lot was conveyed as aforesaid, and said alley, being so opened, was being used by the owners of said lots and by the defendant up to the time defendant took a deed therefor and closed said alley; "that said alley was distinctly dedicated to the use of the owners of said lots by being left unconveyed when the said lots were conveyed as aforesaid, by being open to use of the owners of said lots and the public generally, by being actually kept open and used by the owners of the lots and the public from the time of said original conveyance, etc.; that it was the purpose and intention of Mrs. Dick and her trustee, and of the other persons, who conveyed either of the lots, when the conveyance was made, to dedicate said alley to the use of the owners of said lots for all time; and that same was so dedicated." The amendment to the complaint alleges a dedication of the alley by Geo. A. Dick, trustee, and Mrs. Mary E. Dick, to the use both of the grantees of the lots and their successors in title and to the public at the time of executing the deed to Mrs. Julia P. Dick. The manner of dedication, it is alleged, "was by being left unconveyed when the lot was conveyed as aforesaid." It is not very clear from the language of the amendment whether the plaintiff claims an easement in the 10 feet of land called an alley in the deeds as appurtenant to his lot as a private way dedicated to the use of both lots, or as a public alley. Of course, if the land was dedicated to the use of the public, over which all persons, without regard to the ownership or use of the adjoining property, might pass, it became, upon acceptance by the public, a public highway, which excludes the idea of private ownership. No issues were tendered by plaintiff. There being no allegation nor evidence that the way was ever accepted by the public--that is, by the duly constituted authorities--we assume that plaintiff's claim is based upon an easement appurtenant to the lot conveyed by Mrs. Dick to Mrs. Julia P. Dick, the title to which by successive conveyances is vested in him. Boyden v. Achenbach, 79 N.C. 539; Kennedy v. Williams, 87 N.C. 6. It is elementary learning, laid down in all of the books and adjudged cases on the subject, that an easement may be acquired either by grant, dedication, or prescription. The plaintiff says that the easement which he claims was acquired by dedication, and that such dedication is evidenced by the fact that the alley was not conveyed when the lots were conveyed. It is well settled that dedication may be either by express language, reservation, or by conduct showing an intention to dedicate. Such conduct may operate as an express dedication, as when a plat is made showing streets, alleys, or public squares, and the land is sold, either by express reference to such plats, or by showing that they were used and referred to in the negotiation, as in Moose v. Carson, 104 N.C. 431, 10 S.E. 689, 7 L. R. A. 548, 17 Am. St. Rep. 681; by Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282; Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 47 S.E. 462. The plaintiff here does not allege that any plat was shown or in existence when the lot was conveyed to Mrs. Julia P. Dick, or that she took title with an understanding, or that there was any agreement made between the grantors and grantees that the alley was to be kept open. He says that the grantors left the said alley open between said lots for the benefit thereof, and because by so doing the said lots were rendered more convenient and more valuable to the owners. "The said alley was opened and dedicated to the use of the owners of said lots."
We think that upon a fair construction of the amended complaint the plaintiff alleges that, omitting any reference to the title of the trustee, Mrs. Dick, being the owner of the...
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