State Highway Commission v. Thornton

• Decision Date: 25 August 1967
• Docket Number: No. 855,855
• Citation: 156 S.E.2d 248,271 N.C. 227
• Parties: STATE HIGHWAY COMMISSION, v. William A. THORNTON and wife, Pauline Coble Thornton.
• Court: North Carolina Supreme Court

Page 248

156 S.E.2d 248

271 N.C. 227

STATE HIGHWAY COMMISSION, v. William A. THORNTON and wife, Pauline Coble Thornton.

No. 855.

Supreme Court of North Carolina.

Aug. 25, 1967.

Ross, Wood & Dodge, Graham, for defendant appellees.

LAKE, Justice.

The Highway Commission contends that its action in improving and enlarging the old roadway, 30 feet in width, was an acceptance of the defendants' dedication of this strip of their land to the use of the public as a road. If so, the defendants, as to this part of their land, would be entitled neither to injunctive relief nor to compensation. However, the superior court concluded that the defendants had made no such dedication. This conclusion is supported by the court's findings of fact, which, in turn, are supported by the evidence.

In Nicholas v. Salisbury Hardware & Furniture Co., 248 N.C. 462, 103 S.E.2d 837, Parker, J., now C.J., speaking for this Court, said:

'Dedication is an exceptional and peculiar mode of passing title to an interest in land. The Supreme Court of California in City and County of San Francisco v. Grote, 120 Cal. 59, 52 P. 127, 128, 41 L.R.A. 335, 65 Am.St.Rep. 155, said: 'It is not a trivial thing to take another's land, and for this reason the courts will not lightly declare a dedication to public use."

In Milliken v. Denny, 141 N.C. 224, 53 S.E. 867, it is said, 'The question whether one has dedicated his land to the use of the public is one of intention.' It is not, however, required that there be actually an intent on the part of the landowner so to dedicate his land to the public use, it being sufficient that there be acts by the landowner 'such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate,' followed by acceptance of such dedication by the public. Tise v. Whitaker-Harvey Co., 146 N.C. 374, 59 S.E. 1012. However, where there is no showing of an actual intent to dedicate, the manifestation thereof must clearly appear by acts which, to a reasonable person, would appear 'inconsistent and irreconcilable with any construction except the assent of the owner' to such public use of his property. Milliken v. Denny, supra. The mere fact that, with permission of the owner, occupants of houses upon his land, and persons having business or social relations with them, used the old roadway as a means of ingress to and egress from the public road is not sufficient to establish such dedication. Nicholas v. Salisbury Hardware & Furniture Co., supra, citing Summerville v. Duke Power Co., 4 Cir., 115 F.2d 440.

It is well established that when the owner of a tract of land causes to be recorded a map thereof, showing it to be subdivided into lots, with streets, alleys or other roadways giving access from the public highway to such lots, and thereafter sells any such lot and conveys it with a reference in the deed to such map or plat, there is not only a conveyance to the purchaser of the lot of the right to use such streets and have them kept open for his use, but there is also an offer to the public which may be accepted by it. Wofford v. North Carolina State Highway Commission, 263 N.C. 677, 140 S.E.2d 376, cert. den., 382 U.S. 822, 86 S.Ct. 50, 15 L.Ed.2d 67; Steadman v. Town of Pinetops, 251 N.C. 509, 112 S.E.2d 102; Town of Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898; Rowe v. City of Durham, 235 N.C. 158, 69 S.E.2d 171; Green v. Miller, 161 N.C. 25, 76 S.E. 505, 44 L.R.A.,N.S., 231. In Green v. Miller, supra, Walker, J., speaking for the Court, said:

'The reason for the rule is that the grantor, By making such a conveyance of his property, induces the purchasers to believe that the streets and alleys * * * will be kept open for their use and benefit; and having acted upon the faith of his implied representations, based upon his conduct in platting the land And selling accordingly, he is equitably estopped, as well in reference to the public as to his grantees, from denying the existence of the easement thus created.' (Emphasis supplied.)

The mere recording of a map is not an absolute, unconditional offer to the public to dedicate to its use the streets shown thereon. There must be a sale and conveyance of one or more of the lots shown upon the map by reference thereto, or some other manifestation of intent, to make the offer absolute. The recording of the map is a conditional offer, the condition being that one or more of the lots shown upon the map be sold and conveyed. The public cannot accept that which has not been offered, nor accept that which has been offered conditionally without meeting the condition, so until there has been a conveyance of one of the lots by reference to the map, the public has no right to use the proposed roadway on the theory of dedication.

In the present case, it would be most unreasonable to suppose that the defendants, by recording their map of their land, intended, irrespective of whether they ever sold any part of their property, to give to the public the right to drive at will, it and out of their property over this 'dead end' strip. The purchase of the adjoining property at the end of the 'dead end' strip did not confer upon Associated Transport, Inc., any right to use this strip of the defendants' land for access to their property. Janicki v. Lorek, 255 N.C. 53, 120 S.E.2d 413. None of the land shown on the defendants' map has been sold or conveyed by them. The condition attached to the defendants' offer of dedication not having been met, the act of the Highway Commission in improving the 30 foot strip did not constitute an acceptance of the offer so as to convert it into a public highway and, of itself, gave the Commission no right therein. Therefore, if this property has been properly taken by the Commission under its power of eminent domain, the defendants are entitled to fair compensation for such taking.

The plaintiff's assignments of error relating to the admission of evidence with reference to the defendants' intent to dedicate are without merit. The finding of the court was supported by competent evidence. If some incompetent evidence was also received, it is presumed that it was disregarded by the court and the error was harmless, there being nothing to show that the finding of the court was based in whole or in part upon such incompetent evidence. State Farm Mutual Automobile Insurance Co. v. Shaffer, 250 N.C. 45, 108 S.E.2d 49; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668.

The trial judge, apparently relying upon our statement in State Highway Commission v. Batts, 265 N.C. 346, 361, 144 S.E.2d 126, as to the form of judgment which ought to have been entered in that case, having concluded that in the present case the taking of the defendants' land was not for a public use and, therefore, was not within the power of eminent domain, adjudged that the Commission be 'permanently restraining plaintiff (and enjoined) from proceeding with the condemnation and appropriation of (the defendants') lands.' This was error, irrespective of the correctness or incorrectness of the conclusion upon which the court so decreed.

Upon this record, the defendants are not entitled to injunctive relief. The reply of the Commission and the testimony of the male defendant establish that the road was entirely completed before the matter came on for hearing in the court below. The defendant did not apply for a temporary restraining order to halt construction. In this respect, the present case is clearly distinguishable from State Highway Commission v. Batts, supra. As Allen, J., observed in Yount v. Setzer, 155 N.C. 213, 71 S.E. 209, '(I)t requires no authority to sustain the proposition that, if the act has been committed, it cannot be restrained.' Thus, the construction of the road being an accomplished fact, an injunction to prevent its construction could not properly be issued. No injunction could properly be entered in this action against Associated Transport, Inc., its employees, its customers, or others using this road, for none of these persons or corporations are parties hereto.

The defendants allege that the condemnation of their land sought in this proceeding 'is for a private rather than a public use.' From that premise, they proceed to the conclusion that the Commission has no authority to maintain these condemnation proceedings and they pray the court 'that the plaintiff be permanently enjoined from condemning and appropriating defendants' lands as set forth in the complaint and that said action be dismissed.' If the premise is sound, the conclusion is sound and the trial court should have entered a judgment dismissing the proceeding, but not an injunction. In State Highway Commission v. Batts, supra 265 N.C. at page 361, 144 S.E.2d at page 137, we held that an entry upon land by employees of the Commission to construct a private road was 'merely an unauthorized trespass by employees of the Commission, for which no cause of action existed against the Commission' in favor of the owner of the land for damages. Certainly, damages for such a trespass cannot be awarded in a condemnation proceeding brought without authority for a purpose beyond the power of eminent Domain. See 27 Am.Jur.2d, Eminent Domain, § 478. Thus, if the premise of the defendants be sound, neither a judgment of condemnation nor an award for damages could be entered in this proceeding and it should have been dismissed.

An injunction against the institution or maintenance of condemnation proceedings, as distinguished from an injunction to restrain construction, is not property issued, however, where the ground asserted therefor is one which the landowner may assert as a defense in the condemnation proceeding itself, for, in that event, the landowner has an adequate remedy at law. City of Reidsville v. Slade, 224 N.C. 48, 29 S.E.2d 215. As this Court, speaking through the present Chief Justice, said in City of Durham v. Public Service Co., 257 N.C. 546, 126 S.E.2d 315, ...