Town of Blowing Rock v. Gregorie

• Decision Date: 13 January 1956
• Docket Number: No. 310,310
• Citation: 243 N.C. 364,90 S.E.2d 898
• Court: North Carolina Supreme Court
• Parties: TOWN OF BLOWING ROCK, v. James B. GREGORIE, Caroline Gregorie, and Lloyd Robbins, Contractor.

Page 898

90 S.E.2d 898

243 N.C. 364

TOWN OF BLOWING ROCK, v. James B. GREGORIE, Caroline Gregorie, and Lloyd Robbins, Contractor.

No. 310

Supreme Court of North Carolina.

Jan. 13, 1956

Louis H. Smith, Boone, for defendants, appellants.

Wade E. Brown, Boone, for plaintiff, appellee.

PARKER, Justice.

This Court said in Home Real Estate Loan & Ins. Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13, 18, citing numerous cases in support: 'It is a settled principle that if the owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys the lots or any of them with reference to the plat, nothing else appearing, he thereby dedicates the streets, and all of them, to the use of the purchasers, and those claiming under them, and of the public. ' See also: Hine v. Blumenthal, 239 N.C. 537, 80 S.E.2d 458.

However, insofar as the general public are concerned, and without reference to the claims and equities of the individual purchasers of lots with reference to the map of such a development, it is well understood that a dedication is never complete until acceptance. This acceptance may be shown not only by formal action on the part of the authorities having charge of the matter, but under certain circumstances, by user as of right on the part of the public, or other facts, but unless and until acceptance has been in some way established, it should be properly termed an offer to dedicate on the part of the owner. 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; Irwin v. City of Charlotte, 193 N.C. 109, 136 S.E. 368; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18; 26 C.J.S., Dedication, § 34.

The stipulations state that there was a dedication of the streets shown on the recorded map of the Mayview Park subdivision. The stipulations also state that W. L. Alexander was the original owner and developer of the land comprising Mayview Park subdivision, and sold lots therein before he became bankrupt. The stipulations further show that T. H. Broyhill and C. E. Hayworth, and wife, purchased at the bankrupt sale of W. L. Alexander all of his interest and right in this subdivision; that C. E. Hayworth, and wife, sold their interest to Broyhill, and wife; that Broyhill, and wife, conveyed Lot No. 81 in this subdivision by reference to the above mentioned map as Lot No. 81 to Jack Roberts, and wife, and that Mrs. Roberts, a widow, conveyed Lot No. 81 to the defendants Gregorie by a similar reference.

According to the stipulations, the Town of Blowing Rock, from June 1920 until 4 August 1950, kept Valley View Road open as shown on the map, and periodically made repairs. The stipulations further state that Valley View Road is paved to a point at about the south corner of Lot No. 84, and that beyond that point to the end of the road it is unpaved. This user of Valley View Road by the town was of such a character as unequivocally to indicate an intention on the part of the town to accept Valley View Road for the particular purpose to which it was dedicated, because the acceptance of the dedication of a street by a town may be implied from the fact that the town exercised acts of control over it by improving, repairing or paving it, especially when accompanied by a long continued use by the public. McElroy v. Borough of Ft. Lee, 3 Cir., 46 F.2d 777, certiorari denied. 283 U.S. 853, 51 S.Ct. 647, 75 L.Ed. 1461; Menstell v. Johnson, 125 Or. 150, 262 P. 853, 266 P. 891, 57 A.L.R. 311, 330 (Headnote 15); 16 Am.Jur., Dedication, Sec. 34; 26 C.J.S. Dedication, § 40, pp. 105-106. The lower court decided correctly that the Town of Blowing Rock had accepted the dedication of Valley View Road as a public street of the town.

Purchasers of lots sold by reference to the recorded map of a subdivision acquire vested rights to have all and each of the streets shown on the map kept open. Collins v. Asheville Land Co., 128 N.C. 563, 39 S.E. 21; Home Real Estate Loan & Ins. Co. v. Town of Carolina Beach, supra; Gaither v. Albemarle Hospital, 235 N.C. 431, 70 S.E.2d 680; 16 Am.Jur., Dedication, Sec. 57.

The dedication of Valley View Road as a street in the Town of Blowing Rock, as shown on the map, having become complete by acceptance by the town, as above set forth, the right to revoke the dedication is gone, except with the consent of the Town of Blowing Rock acting on behalf of the public, McElroy v. Borough of Fort Lee, supra; Keiter v. Berge, 219 Minn. 374, 18 N.W.2d 35, and with the consent of those persons who have vested rights in the dedication, Rose v. Village of Elizabethtown, 275 Ill. 167, 114 N.E. 14; 3 Dillon on Mun.Corp., 5th Ed., Sec. 1091.

In Home Real Estate Loan & Ins. Co. v. Town of Carolina Beach, supra, lots in a subdivision were sold with reference to a plat showing the street in question to be 99 feet in width. At the time the charter was granted to the municipality embracing the lands, the only plat recorded was a revised one showing the streets as 80 feet wide. The Court held (as stated in the 5th headnote N.C.Reports), 'the granting of the charter cannot be construed as having the effect of limiting the width of the street to 80 feet so as to defeat the vested right of purchasers of lots with reference to the original plat to compel the owner to abide by its dedication of the street for the full width as shown by the plat. ' The Court said: 'To have deprived those who purchased lots with reference to the original map, and those claiming under them, of appurtenant rights in and to the streets, for the purpose of vesting such rights in another merely for private use would run counter to provisions of the Constitution of North Carolina, Art. 1, Sec. 17, and to the 14th Amendment to the Constitution of the United States. See Moose v. Carson [104 N.C. 431, 10 S.E. 689, 7 L.R.A. 548] supra. Compare Sheets v. Walsh, 6 S.E.2d 817.'

The Resolution of the Commissioners of the Town of Blowing Rock of 1 August 1950, abandoning part of Valley View Road and releasing it to the defendants Gregorie for their own private use and benefit, states certain parts of said street have been used in the past for parking and have been used so as to be a disturbance to adjoining property owners and that the said adjoining property owners have requested the Commissioners of the town to abandon and close a certain part of the road. It does not appear from the stipulations whether there were purchasers of lots in this subdivision by reference to the recorded map except Jack Roberts, and his wife, and the defendants Gregorie, though the stipulations state that W. L. Alexander, the original owner and creator of this subdivision, sold lots therein before becoming bankrupt. If there were such purchasers, there is no evidence that they requested or consented to the closing of part of Valley View Road and the action of the governing body of the Town of Blowing Rock in abandoning and permitting part of this road to be closed for the private use and benefit of the defendants Gregorie was in violation of their rights under Art. 1, Sec. 17, of the State Constitution and under the 14th Amendment to the United States Constitution.

The Town of Blowing Rock holds its streets in trust not only for the municipality and its citizens, but also for the general public. Swinson v. Cutter Realty Co., 200 N.C. 276, 156 S.E. 545; City of Birmingham v. Hood-McPherson Realty Co., 233 Ala. 352, 172 So. 114, 108 A.L.R. 1140; 64 C.J.S. Municipal Corporations, § 1688.

The Court said in Butler v. F. R. Penn Tobacco Co., 152 N.C. 416, 68 S.E. 12, 13: 'The town authorities hold the streets in trust for the purposes of public traffic, and cannot, in the absence of statutory power, grant to any one the right to obstruct the street to the inconvenience of the public, even for public purposes, and not for private purposes at all.'

G.S. § 153-9, subd. 17, provides that the governing body of any municipality shall have power to close any street or road or portion thereof. It further provides that individuals owning property adjoining said street or road, who do not join in the request for the closing of said street or road, shall be notified by registered letter of the time and place of the meeting of the governing board at which the closing of said street or road is to be acted on, and it further provides that notice of said meeting shall be published once a week for four weeks in some newspaper published in the county, if there is one.

The stipulations state that no notice of the meeting of the governing body of the Town of Blowing Rock on 1 August 1950, was published in the Watauga Democrat, the only newspaper published in the county. The record is silent as to whether any individuals owning property adjoining Valley View Road, who did not request a closing of part of the road, were notified of this meeting of 1 August 1950 by registered letter.

The defendants stressfully contend that the statutory provisions of G.S. § 153-9, subd. 17, are not binding on municipalities, because the Title or Caption of the Act amending G.S. § 153-9, subd. 17, enacted by the General Assembly in Chapter 1208, 1949 Session Laws, is entitled 'An Act to Amend Section 153-9, Subsection 17 of the General Statutes of North Carolina to Provide for the Colsing of Streets Lying Outside Municipalities by the Boards of County Commissioners', and the provisions in the amendatory act as to municipalities do not correspond with the subject expressed in the title. The defendants cite in support of their argument State ex rel. Ray v. Blease, 95 S.C. 403, 79 S.E. 247, and 82 C.J.S., Statutes, § 220, p. 372. The pertinent part of the decision in State ex rel. Ray v. Blease was based on Art. 3, Sec. 17 of the South Carolina Constitution, which is, 'Every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.' 82 C.J.S., Stat...