Moose v. Carson

• Decision Date: 31 December 1889
• Citation: 104 N.C. 431,10 S.E. 689
• Court: North Carolina Supreme Court
• Parties: Moose et al. v. Carson et al.

10 S.E. 689

(104 N.C. 431)

Moose et al.

v.Carson et al.

Supreme Court of North Carolina.

Dec. 31, 1889.

Taking Property without Compensation— Basements.

The owner of a lot having an easement appurtenant in the adjacent street, with reference to which he bought and improved the lot, cannot, without compensation, be deprived of his rights in such street by a sale for the benefit of the town through which he claims title; nor can the legislature deprive him of such appurtenant rights by authorizing the town to again enter upon and sell such street to others.

This was a civil action for the recovery of land, tried at the spring term, 1889, of the superior court of Alexander county, before Clark, Judge.

The land on which the town of Taylors-ville, the county-seat of Alexander, is situated, was conveyed to James Thompson, and his successors in office, on the 11th of June, 1847. On the 23d January, 1888, A. A. Hill, mayor of the town of Taylorsville, and W. R. Sloan, chairman of the board of county commissioners of Alexander, "in consideration of one hundred.dollars to A. A. Hill paid by said parties of the second part, (the said Sloan joining in the conveyance, to convey any interest the county may have,)" convey to the plaintiffs, J. C. Moose, W. L. Moose, and J. F. Teague, a portion of said land, including all of East Back street lying between North Main street and North Back street, (both of which streets East Main crosses,) except an alley of 16 feet wide, next to defendants' lots. The defendants, and those under whom they claim, bought lots bordering and bounded by the portion of East Back street covered by deed of plaintiffs, and in controversy, in 1848, under the county authorities, and have occupied the lots since the year 1853. When the ances-tor of defendants bought, East Back street had been laid off 56 feet wide. The plaintiffs claim in this action all of the original street covering the part of the defendants on East Back street, except the alley in their immediate front, mentioned in the case agreed: "The plaintiffs claim title through the conveyances, or copies of same, hereto attached, marked 'A' and 'B, ' respectively, and asked to be taken as a part of this case. The defendant C. J. Carson is the only heir at law of J. M. Carson, deceased, and D. P. Carson is the widow of J. M. Carson; and they claim title through the deeds, or copies of same, hereto attached, marked '1, ' '2, ' '3, ' '4, ' respectively, and asked to be taken-as a part of this case. A copy of the old town plat or survey, marked 'X, ' is hereto attached, and asked to be taken as a part of the case. It is also agreed that plaintiffs may introduce any acts of legislature. It is admitted that the town was located and laid off, as indicated, in lots and streets, in the year 1847, and the locus in quo was conveyed in deed, marked ' A, ' and that many of the streets remain unused to this day. The land in controversy is that part of East Back street described in plaintiffs' deed, and embraced between North Main street and North Back street. The width of East Back street is admitted to be 66 feet, and that defendants are now in possession of all East Back street lying between North Main street and North Back street, except a small part inside of lot fences Nos. 35 and 36, not in controversy; but defendants claim no advantage by reason of possession of the street. At the time plaintiffs purchased, the town authorities left an alley of 16 feet adjoining defendants' lots 15 and 16, and running back from North Main to North Back street. All irregularities, if any, in the execution and proof of any of the deeds offered in evidence, are waived. It is also admitted that lots Nos. 15 and 16, abutting said East Back street, were purchased by the defendants, and those under whom they claim, after the town was laid off in to lots and streets, as indicated in the plat hereto attached, marked 'X, ' and have been in possession of the defendants, and those under whom they claim, ever since the purchase in 1848, and the defendants' deeds cover the said lots. If, upon this state of facts, the court is of the opinion that plaintiffs are entitled to recover, then judgment for plaintiffs for possession and costs, without prejudice to the right of either party to appeal to supreme court." Upon the facts agreed, the court was of opinion that the plaintiffs were not entitled to recover, and gave judgment, accordingly, that defendants go without day, and recover costs. The plaintiffs except to the judgment, and appeal.

E. C. Smith, for appellants. R. Z. Lin-ney, for appellees.

Avery, J., (after stating the facts as above.) It is a well-settled principle that where a corporation, acting through its properly-constituted authorities, or an individual, sells and conveys a town or city lot, bounded by streets or alleys, marked out on a plat, and the grantee enters upon it, and expends money in improving it, he is entitled to a right of way over such street or alley, as appurtenant to the land, and any subsequent conveyance by hisgrantor, or those claiming under him, of the portion of such streets or alleys-by which the grantee's lot is bounded, will be held void. Pratt v. Law, 9 Cranch, 456; 8 Meyer's Fed. Dec. § 1046, "Contracts;" Chapin v. Brown, 10 Atl. Rep. 639; Sarpy v. Municipality, 9 La. Ann. 597; Port Huron v. Chadwick, 52 Mich. 320, 17 N. W. Rep. 929;...