Waterway Drive Prop. Owners' Ass'n, Inc. v. Town of Cedar Point
| Citation | 737 S.E.2d 126 |
| Decision Date | 18 December 2012 |
| Docket Number | No. COA12–614.,COA12–614. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | WATERWAY DRIVE PROPERTY OWNERS' ASSOCIATION, INC., et al., Plaintiffs, v. TOWN OF CEDAR POINT, Branch Banking and Trust Company, First Citizens Banks & Trust Company, Wachovia Bank, National Wachovia Bank, National Association Capital Bank, and Bank of America Corporation, Defendants. |
OPINION TEXT STARTS HERE
Appeal by Defendant from order entered 14 February 2012 by Judge Benjamin G. Alford in Superior Court, Carteret County and order entered 13 December 2011 by Judge Jack W. Jenkins in Superior Court, Carteret County. Heard in the Court of Appeals 24 October 2012.
Poyner Spruill, LLP, Rocky Mount, by J. Nicholas Ellis and Christopher R. Boothe, for Plaintiffs–Appellees.
Kirkman, Whitford, Brady, Berryman & Farias, P.A., Morehead City, by Neil B. Whitford and Jane A. Gordon, for Defendant–Appellant, Town of Cedar Point.
The Town of Cedar Point (Defendant) and several financial institutions (included in the suit for notice purposes only) appeal from the trial court's entry of summary judgment in favor of Waterway Drive Property Owners' Association, Inc., by and through its members, (Plaintiffs) declaring Front Street/Waterway Drive a private road. For the following reasons, we affirm the orders of the trial court.
On 13 August 2010 Plaintiffs brought suit against Defendant to (1) establish by declaratory judgment that Defendant has no ownership interest to the area of Cedar Point known as “Front Street,” which forms at least part of the street named Waterway Drive; (2) in the alternative, request compensation through inverse condemnation for a “taking” of the Front Street area; (3) in the alternative, request compensation through inverse condemnation for a “taking” of the portion of Waterway Drive outside of the Front Street right-of-way (encroachment area) 1; and (4) request a temporary restraining order and preliminary injunction. Defendant filed an answer generally denying the allegations of Plaintiffs' complaint and raising a counterclaim also requesting declaratory judgment that (1) Front Street is a public right of way based upon dedication and acceptance; (2) Front Street/Waterway Drive and the encroachment area are public rights of way based upon prescriptive easement; and (3) no inverse condemnation has occurred as Defendant “is not seeking to exercise control or claim a right-of-way over Front Street/Waterway Drive by inverse condemnation or any other legal theory” if the trial court were to determine that it is not a public right of way by either dedication or prescription. The parties took depositions, submitted affidavits, and filed cross-motions for partial summary judgment on the declaratory judgment claim.
The evidence forecast by the parties' submissions to the trial court shows the following facts. It is undisputed that Front Street/Waterway Drive was dedicated to public use. In 1936, a landowner named John S. Jones filed a subdivision plat (“1936 Plat”) in Carteret County wherein he indicated that a portion of his land abutting the Intracoastal Waterway was to be used for a fifty-foot wide right-of-way named “Front Street.” From around the 1950s until about the early 1970s, the area designated as Front Street between Hill Street and Bell Street was used for vehicular traffic.2 During the 1970s, motorists stopped using Front Street as a through-street. However, the property owners along the street continued to use it as an access road and considered it a private drive.
In 1978, Carteret County franchised a cable TV company to install cable in public streets in the area; cable was installed on Front Street. This was later franchised by Defendant in 1989. Defendant was incorporated in 1988. In 1988, Defendant franchised West Carteret Water Corporation to construct and maintain a water main system, which was installed on Front Street, along with a fire hydrant.
In 1989, Defendant adopted a Resolution granting the mayor authority to accept dedications of certain streets, of which Front Street/Waterway Drive was not included. A catch-all provision was included to extend that authority roughly one month into the future for any dedications offered in that time. In 1990, Defendant recorded a Notice of Acceptance that claims Defendant previously accepted several dedicated streets, including Front Street.
Around 1990, Plaintiffs paved a portion of Front Street at their own expense, renamed it Waterway Drive without petitioning Defendant for a name change, and posted a sign reading “Private Road” at the entrance. Defendant never objected to these actions. The eastern end of the street remains unpaved. Residents receive mail at post boxes at one end of the street, not at each individual residence.
There is evidence of Defendant clearing debris (consisting of a carpet) from the area of Waterway Drive following a hurricane in 1996. In 1998, Defendant had an additional fire hydrant installed on Waterway Drive. In 2001, Defendant contracted for garbage trucks to use the street to pick up garbage from the property residents. There is evidence of Defendant patching asphalt in 2006 and 2010.
In 2005, Waterway Drive was added to Defendant's “Powell Bill” map. Defendant uses this map to submit to the state how many miles of streets it has within its borders so that it may receive maintenance money for them. Neither the North Carolina Department of Transportation (NCDOT) nor Carteret County has any record of the maintenance of Front Street/Waterway Drive. “From and after July 1, 1931, the exclusive control and management and responsibility for all public roads in the several counties shall be vested in the Department of Transportation.” N.C. Gen.Stat. § 136–51 (2011).
There is evidence of payments by the property owners, in the form of personal checks, for maintenance and repair of the road from the 1970s through the 1990s and of the Association's by-laws and agreement that it would be responsible for maintenance and repairs. There is evidence in the form of a deed, deposition, and town minutes, of a private easement existing on Waterway Drive for the use of property owners.
In 2006, Defendant sent the property owners a letter stating that Defendant had previously accepted the dedication and planned on making improvements to the street. This prompted discussions between the parties such that in 2010 the Plaintiffs formally petitioned Defendant to abandon the street, maintaining the claim that it is a private street. Defendant held a public hearing and declined. Plaintiffs filed a declaration of withdrawal, followed by the instant lawsuit.
Prior to the summary judgment hearing, Defendant submitted the affidavit of John R. Jones, son of the original Front Street dedicator. Plaintiffs noticed a deposition of Mr. Jones and issued and served a subpoena for his appearance at the deposition. Mr. Jones, through counsel, objected to the subpoena and moved to quash it on the grounds that it imposed an undue burden on him for health reasons. In response, Plaintiffs filed a motion to compel Mr. Jones to appear to be deposed or, in the alternative, to strike Mr. Jones' affidavit on the grounds that lack of an opportunity to depose Mr. Jones would “unduly prejudice Plaintiffs.” The trial court granted Plaintiffs' motion to strike the Jones affidavit and denied their motion to compel by an order entered 13 December 2011.
As to the motions by both parties for partial summary judgment, the trial court gave the following order, in pertinent part, on 14 February 2012:
3. Plaintiffs' Motion for Partial Summary Judgment is granted and the relief sought in Plaintiffs' First claim for relief is allowed based on the Court's ruling that Waterway Drive is a private road.
4. Cedar Point's Cross-motion for Partial Summary Judgment is denied.
....
6. This is a final adjudication of all issues in this case.3
Defendant timely filed notice of appeal to this Court on 14 March 2012.
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
Defendant first argues that the trial court erred in finding Waterway Drive to be a private road and thus in granting summary judgment to Plaintiffs. Specifically, Defendantfirst asserts that Front Street/Waterway Drive 4 is a public municipal street by dedication. We disagree.
There is no argument that a dedication was not made, so it is not necessary to examine the merits of the dedication. Thus, our discussion turns on the merits of any purported acceptance.
A dedication of a road is a revocable offer until it is accepted on the part of the public in some recognized legal manner and by a proper public authority. A proper public authority is a governing body having jurisdiction over the location of the dedicated property, such as ... an incorporated town ... or any public body having the power to exercise eminent domain over the dedicated property. Accepting in some recognized legal manner includes both express and implied acceptance.
Kraft v. Town of Mt. Olive, 183 N.C.App. 415, 420–21, 645 S.E.2d 132, 137 (2007) (citations omitted)(internal quotation marks omitted). Defendant argues that the dedication was accepted expressly through formal acceptance, implicitly through acts of control, and through its inclusion on an official map. It also argues that Plaintiffs attempt to withdraw the dedication is ineffective as a matter of law. We examine each in turn.
“Express acceptance can occur, inter alia, by ‘a formal ratification, resolution, or order by proper officials, the adoption of an ordinance, a town council's vote of...
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