Steadman v. Town of Pinetops, 234

• Decision Date: 14 January 1960
• Docket Number: No. 234,234
• Citation: 251 N.C. 509,112 S.E.2d 102
• Parties: Edna M. STEADMAN, William C. Steadman and wife, Frances F. Steadman, Bruce A. Steadman and wife, Norma B. Steadman, Joseph P. Steadman and wife, Lellia D. Steadman, and Dorothy S. Powell and husband, Charles C. Powell, v. TOWN OF PINETOPS, an incorporated municipality.
• Court: North Carolina Supreme Court

Page 102

112 S.E.2d 102

251 N.C. 509

Edna M. STEADMAN, William C. Steadman and wife, Frances F.

Steadman, Bruce A. Steadman and wife, Norma B. Steadman,

Joseph P. Steadman and wife, Lellia D. Steadman, and Dorothy

S. Powell and husband, Charles C. Powell, v. TOWN OF PINETOPS, an incorporated municipality.

No. 234

Supreme Court of North Carolina.

Jan. 14, 1960

Fountain, Fountain, Bridgers & Horton, Tarboro, for plaintiffs.

D. C. Sessoms, Pinetops, Joel K. Bourne, Henry C. Bourne, Tarboro, for defendant.

DENNY, Justice.

None of the evidence offered and admitted in the hearing below is brought forward and made a part of the record on this appeal.

Evidence adduced in a hearing below and not included in the case on appeal, or if included and there is no exception to the admission of such evidence or to the findings of fact based thereon, such findings are presumed to be supported by competent evidence and are binding on appeal. City of Salisbury v. Barnhardt, 249 N.C. 549, 107 S.E.2d 297; City of Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870; City of Goldsboro v. Atlantic Coast Line Railroad Co., 246 N.C. 101, 97 S.E.2d 486; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Beaver v. Crawford Paint Co., 240 N.C. 328, 82 S.E.2d 113.

The appellants contend that the facts found by the court below as set out hereinabove in paragraphs 2, 3, 6, 10, 11, 12, 14 and 16, do not support the conclusion that the receiver is vested with title to all property rights of the Macclesfield Company and, therefore, the plaintiffs are not authorized under the provisions of G.S. § 136-96 to withdraw the streets in question from dedication to public use, and they assign this conclusion of law as error.

The general rule in this jurisdiction with respect to the dedication of streets and alleys shown on a map or plat of a subdivision was clearly stated in Hughes v Clark, 134 N.C. 457, 46 S.E. 956, 958, 47 S.E. 462, as follows: '* * * where lots are sold and conveyed by reference to a map or plat which represent 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. There is a dedication, and, if they are not actually opened at the time of the sale they must be at all times free to be opened as occasion may require. ' Gaither v. Albemarle Hospital, 235 N.C. 431, 70 S.E.2d 680; Rowe v. City of Durham, 235 N.C. 158, 69 S.E.2d 171; Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664; Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889; Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Wheeler v. Charlotte Consol. Construction Co., 170 N.C. 427, 87 S.E. 221; Conrad v. West End Hotel & Land Co., 126 N.C. 776, 36 S.E. 282.

It should be kept in mind, however, that the dedication referred to in the rule above stated, insofar 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 on the public unless in some proper way it has consented to assume them. Irwin v. City of Charlotte, 193 N.C. 109, 136 S.E. 368; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18. Likewise, a town has the right to determine where its streets shall be located as well as the right to accept or reject any offer of dedication. Sugg v. Town of Greenville, 169 N.C. 606, 86 S.E. 695; Lee v. Walker, supra.

However, where a municipality opens, improves and maintains a street dedicated to the public by the registration of a map or plat showing such street, there is an acceptance of the dedication of the street by the municipality. Moreover, where the dedication of a street has become complete by the acceptance thereof by a municipality, and the street is opened and maintained by the municipality and used by the public, the right to revoke the dedication is gone, except with the consent of the municipality acting in behalf of the public and the consent of those persons, firms or corporations having vested rights in the dedication. Town of Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898. See also City of Salisbury v. Barnhardt, supra. But where streets are dedicated to the public by the registration of a plat showing streets and alleys thereon, and such streets or alleys are not opened or used by the public for a period of fifteen years from and after the registration of such map or plat, the dedication of such streets and alleys become subject to withdrawal under the provisions of G.S. § 136-96, and this is so even though such unopened streets or alleys lie within the limits of a municipality.

It is provided in Chapter 174 of the Public Laws of 1921, as amended, and now codified as G.S. § 136-96, that, 'Every strip, piece, or parcel of land which shall have been at any time dedicated to public use as a road, highway, street, avenue, or for any other purpose whatsoever, by a deed, grant, map, plat, or other means, which shall not have been actually opened and used by the public within fifteen (15) years from and after the dedication thereof, shall be thereby conclusively presumed to have been abandoned by the public for the purposes for which same shall have been dedicated, and no person shall have any right, or cause of action thereafter, to enforce any public or private easement therein * * *; provided, that no abandonment of any such public or private right or easement shall be presumed until the dedicator or some one or more of those claiming under him shall file and cause to be recorded in the register's office of the county where such land lies a declaration withdrawing such strip, piece or parcel of land from the public or private use to which it shall have theretofore been dedicated in the manner aforesaid * * *; that where any corporation has dedicated any strip, piece or parcel of land in the manner herein set out, and said dedicating corporation is not now in existence, it shall be conclusively presumed that the said corporation has no further right, title or interest in said strip, piece, or parcel of land, regardless of the provisions of conveyances from said corporation, or those holding under said corporation, retaining title and interest in said strip, piece, or parcel of land so dedicated; the right, title and interest in said strip, piece, or parcel of land shall be conclusively presumed to be vested in those persons, firms or corporations owning lots or parcels of land adjacent thereto, subject to the provisions set out hereinbefore in this section.

'The provisions of this section shall have no application in any case where the continued use of any strip of land dedicated for street or highway purposes shall be necessary to afford convenient ingress or egress to any lot or parcel of land sold and conveyed by the dedicator of such street or highway. * * *'

In our opinion, the charter of The Macclesfield Company expired by its own limitation on 21 June 1929, and the corporation ceased to exist at that time within the meaning of the provisions of G.S. § 136-96.

In the case of Asheville Division, No. 15, Sons of Temperance v. Aston, 92 N.C. 578, this Court said: 'It is unquestionably true that a corporation, whose term of existence is fixed and limited in the act which creates it, cannot endure beyond the prescribed time, unless prolonged by the same authority or continued for the purpose of adjusting and closing its business, and no judicial proceedings are required to terminate it. The expiration of the time ends the life given to the artificial body, as death terminates the life of the natural person. ' The Court further said: 'The operation and effect of this legislation (the appointment of trustees or a receiver) in securing a just and proper administration of the effects and estate of a defunct corporation through an agency appointed by the court, and whose functions are analogous to those of an administrator upon the estate of a...