Owens v. Elliott, 383

• Decision Date: 12 December 1962
• Docket Number: No. 383,383
• Citation: 258 N.C. 314,128 S.E.2d 583
• Parties: C. P. OWENS and wife, Betty Sue Owens v. J. W. ELLIOTT and wife, Winnie Elliott.
• Court: North Carolina Supreme Court

Page 583

128 S.E.2d 583

258 N.C. 314

C. P. OWENS and wife, Betty Sue Owens v. J. W. ELLIOTT and wife, Winnie Elliott.

No. 383

Supreme Court of North Carolina.

Dec. 12, 1962

Whicker & Whicker, North Wilkesboro, for plaintiffs.

Ralph Davis, North Wilkesboro, for defendants.

MOORE, Justice.

This is the second appeal in this case. The first appeal was heard at the Spring Term 1962. Owens v. Elliott, 257 N.C. 250, 125 S.E.2d 589. Much of the evidence necessary to a clear understanding of the legal questions involved had been excluded or was not brought forward in the record on the former appeal. The present record makes clear the factual situation and brings the legal questions for decision into focus.

The pleadings are reviewed in our former opinion. In summary, the facts are: In May and June 1958 Howard Owens and wife subdivided a part of their land into 108 lots. The subdivision does not lie within the boundaries of an incorporated town or city. A 30-foot unnamed street (hereinafter referred to as 'the Street') extends in a generally east-west direction across the north side (and through a small portion of the northwest side) of the subdivision, connecting with Crysel Road and Congo Road. These two roads are public highways, Crysel Road lies at the east end and Congo Road at the west end of the Street. The Street was laid out, graded and opened. A map of the subdivision was made, showing the location of lots and streets. In June 1958 the subdividers conveyed to the defendants all of the lots in the subdivision, 108 in number, and 'all the right, title and interest of * * * (subdividers) * * * in and to the streets shown on the map.' The map was recorded in August 1958, after the conveyance to defendants. Defendants have sold and conveyed to various purchasers a number of the lots in the subdivision, by deeds referring to the map. In February 1960 plaintiffs herein purchased from Mr. and Mrs. Howard Owens, the original subdividers, a lot outside the subdivision. This lot is situate at the northwest intersection of Crysel Road and the Street; it abuts the western margin of Crysel Road a distance of 100 feet, and the northern margin of the Street 150 feet; it lies directly across the Street from lot 40 of the subdivision. The description in the deed to plaintiffs refers to the Street. Plaintiffs erected a dwelling house facing the Street and constructed a driveway from the Street to their carport. In May 1960 they moved in. Defendants were engaged in paving the Street, but plaintiffs paid no part of the paving cost, though they were requested to do so. Defendants barricaded the Street and later made it impassable by filling it, in front of plaintiffs' lot, with dirt and rock to a depth of several feet. From June 1958 to the time the Street was closed, many persons, not owning lots within the subdivision, used the Street freely and without interference. The State Highway Commission has not at any time accepted or maintained the Street as a part of the State highway system. It was maintained entirely at the expense of defendants and the purchasers of lots within the subdivision. Plaintiffs instituted this action to restrain defendants from interfering with their use thereof, and for mandatory injunction to require defendants to open the Street and remove all obstructions therefrom.

The trial court erred in overruling defendants' motion for nonsuit.

Plaintiffs acquired no right, title or interest in or to the Street by virtue of the deed of conveyance from Mr. and Mrs. Howard Owens to them. The description refers to the Street, but the effect of the reference is only descriptive. Farmville v. A. C. Monk & Co., 250 N.C. 171, 108 S.E. 2d 479. Mr. and Mrs. Howard Owens had theretofore conveyed to defendants all their right, title and interest 'in and to the streets shown on the map' (and this Street is shown on the map), and therefore, at the time of the conveyance of the lot outside the subdivision to plaintiffs, had no title or interest that they could convey to plaintiffs. Sheets v. Walsh, 217 N.C. 32, 6 S.E.2d 817.

The trial judge proceeded on the theory that there was prima facie evidence of a consummated dedication of the Street to the use of the public. He seems to be of the opinion that where there is a subdivision of a tract of land into lots, and streets are opened within the subdivision, that use of a street by a member of the general public 'for as much as ten minutes' (to use his expression) works an irrevocable dedication to public use. This is, of course, not the law. The judge was probably confused by failure to distinguish the principles applicable to a dedication to the use of purchasers of lots within a subdivision and those applicable to a dedication to the use of the...