WiNBORNE, J.
While three questions are presented on this appeal by defendants, all of them are answered by applying the principles of dedication or equitable estoppel, and of incident remedy.
When the owner of land has it subdivided and platted into lots, streets and alleys, and sells and conveys the lots or any of them with reference to the plat, he thereby dedicates the streets and alleys, and all of them,
to the use of the purchasers and those claiming under them, and of the public. See
Ins. Co. v. Carolina Beach,
216 N. C., 778, 7 S. E. (2d), 13, and authorities cited.
In
Hughes v. Glark,
134 N. C., 457, 46 S. E., 956, it is stated that “Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions, 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 open or accepted by the governing board of the towns or cities if they be within municipal corporations.” To the same effect are other decisions, among which are
Green v. Miller,
161 N. C., 24, 76 S. E., 505;
Sexton v. Elizabeth City,
169 N. C., 385, 86 S. E., 344;
Wittson v. Dowling,
179 N. C., 542, 103 S. E., 18. In the
Sexton case, supra,
it is stated: “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, squares, courts and parks will be kept open for their use and benefit, and having acted upon the faith of his implied representations, bases 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.” And again in the same ease: “It is held that the original grantor, who sold by the map or diagram of the land as laid out into blocks and lots, streets and avenues,
and those claiming under him,
are estopped to deny the right of prior purchasers of lots to an easement in the streets represented on the map; but it is not a strict estoppel but one arising out of the conduct of the party who originally owned the land and platted it for the purpose of selling lots, and is predicated upon the idea of bad faith in him, or those claiming under him, with knowledge of the facts, or with notice thereof, either express or constructive, to repudiate his implied representation that the streets and alleys, parks and places will be kept open and unobstructed for the use of those who buy from him.”
Also in
Wittson v. Dowling, supra, Holee, J.,
expressed the principle in this way: “It is the recognized principle here and elsewhere, that when the owner of suburban property or other has the same platted, showing lots, parks, streets, alleys, etc., and sells off the lots of any of them, in reference to the plat, this, as between the parties, will constitute a dedication of the streets, etc., for public use, although not presently opened or accepted or used by the public.”
And in
Conrad v. Land Co.,
126 N. C., 776, 36 S. E., 282, an action to enjoin defendant from dividing up and selling of an open square, and from closing up or narrowing the streets leading to and surrounding it, this Court in sustaining the injunction, said: “The plaintiffs had been
induced to buy upon tbe map and plat, and tbe same was based not merely on tbe price paid for tbe lots, but it was tbe further consideration tbat tbe streets and public grounds designated on tbe map should further be kept open to tbe purchasers and their heirs.”
Applying these principles to tbe factual situation in band, tbe first contention of defendants tbat tbe court erred in refusing to grant their motion for judgment as of nonsuit for tbat there is no allegation or proof of “any special, particular, or peculiar injury of a substantial nature” to plaintiff by reason of acts of defendants of which complaint is made, is met by tbe bolding of this Court in
Hughes v. Clark, supra,
where it is declared tbat “if tbe streets be obstructed there is created thereby a public nuisance, and each purchaser can, by injunction or other proper proceedings, have tbe nuisance abated, as there is in all such cases an irrebuttable presumption of law tbat any complaining purchaser of a lot or lots has suffered peculiar loss and injury.”
In this connection it must be borne in mind tbat plaintiff, Elsie E. Broocks, is not asserting rights enjoyed by the general public. She is asserting rights which were acquired when she purchased, and by reason of her purchase of lot 19 in Block 0 with reference to the map of Knoll-crest subdivision. By such purchase she acquired the appurtenant right to use the 16 foot alleyway, and to have same kept open and freed of obstruction for her use. So far as she, as a purchaser, is concerned, the dedication of the alleyway was complete, irrespective of whether it was opened and accepted by the governing body of the city for public use. In such case an irrebuttable presumption of law arose that she “has suffered peculiar loss and injury.”
The second contention of defendants is that the court erred in enjoining the defendants from interfering with any rights of plaintiffs to use the strip of land in question, in the absence of allegation or proof, or finding that defendants are interfering with any such rights of plaintiffs.
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WiNBORNE, J.
While three questions are presented on this appeal by defendants, all of them are answered by applying the principles of dedication or equitable estoppel, and of incident remedy.
When the owner of land has it subdivided and platted into lots, streets and alleys, and sells and conveys the lots or any of them with reference to the plat, he thereby dedicates the streets and alleys, and all of them,
to the use of the purchasers and those claiming under them, and of the public. See
Ins. Co. v. Carolina Beach,
216 N. C., 778, 7 S. E. (2d), 13, and authorities cited.
In
Hughes v. Glark,
134 N. C., 457, 46 S. E., 956, it is stated that “Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions, 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 open or accepted by the governing board of the towns or cities if they be within municipal corporations.” To the same effect are other decisions, among which are
Green v. Miller,
161 N. C., 24, 76 S. E., 505;
Sexton v. Elizabeth City,
169 N. C., 385, 86 S. E., 344;
Wittson v. Dowling,
179 N. C., 542, 103 S. E., 18. In the
Sexton case, supra,
it is stated: “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, squares, courts and parks will be kept open for their use and benefit, and having acted upon the faith of his implied representations, bases 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.” And again in the same ease: “It is held that the original grantor, who sold by the map or diagram of the land as laid out into blocks and lots, streets and avenues,
and those claiming under him,
are estopped to deny the right of prior purchasers of lots to an easement in the streets represented on the map; but it is not a strict estoppel but one arising out of the conduct of the party who originally owned the land and platted it for the purpose of selling lots, and is predicated upon the idea of bad faith in him, or those claiming under him, with knowledge of the facts, or with notice thereof, either express or constructive, to repudiate his implied representation that the streets and alleys, parks and places will be kept open and unobstructed for the use of those who buy from him.”
Also in
Wittson v. Dowling, supra, Holee, J.,
expressed the principle in this way: “It is the recognized principle here and elsewhere, that when the owner of suburban property or other has the same platted, showing lots, parks, streets, alleys, etc., and sells off the lots of any of them, in reference to the plat, this, as between the parties, will constitute a dedication of the streets, etc., for public use, although not presently opened or accepted or used by the public.”
And in
Conrad v. Land Co.,
126 N. C., 776, 36 S. E., 282, an action to enjoin defendant from dividing up and selling of an open square, and from closing up or narrowing the streets leading to and surrounding it, this Court in sustaining the injunction, said: “The plaintiffs had been
induced to buy upon tbe map and plat, and tbe same was based not merely on tbe price paid for tbe lots, but it was tbe further consideration tbat tbe streets and public grounds designated on tbe map should further be kept open to tbe purchasers and their heirs.”
Applying these principles to tbe factual situation in band, tbe first contention of defendants tbat tbe court erred in refusing to grant their motion for judgment as of nonsuit for tbat there is no allegation or proof of “any special, particular, or peculiar injury of a substantial nature” to plaintiff by reason of acts of defendants of which complaint is made, is met by tbe bolding of this Court in
Hughes v. Clark, supra,
where it is declared tbat “if tbe streets be obstructed there is created thereby a public nuisance, and each purchaser can, by injunction or other proper proceedings, have tbe nuisance abated, as there is in all such cases an irrebuttable presumption of law tbat any complaining purchaser of a lot or lots has suffered peculiar loss and injury.”
In this connection it must be borne in mind tbat plaintiff, Elsie E. Broocks, is not asserting rights enjoyed by the general public. She is asserting rights which were acquired when she purchased, and by reason of her purchase of lot 19 in Block 0 with reference to the map of Knoll-crest subdivision. By such purchase she acquired the appurtenant right to use the 16 foot alleyway, and to have same kept open and freed of obstruction for her use. So far as she, as a purchaser, is concerned, the dedication of the alleyway was complete, irrespective of whether it was opened and accepted by the governing body of the city for public use. In such case an irrebuttable presumption of law arose that she “has suffered peculiar loss and injury.”
The second contention of defendants is that the court erred in enjoining the defendants from interfering with any rights of plaintiffs to use the strip of land in question, in the absence of allegation or proof, or finding that defendants are interfering with any such rights of plaintiffs.
The original owners, having sold lots with reference to the plat, which they caused to be made and registered, as well as those claiming under them, are estopped to deny, as against purchasers of lots, the existence of the easement in and to the alleyway and the right of plaintiff, as a purchaser of a lot with relation to the plat, to use the alleyway and to have it kept open and freed of obstruction so that she can use it. A denial of the right to use the alleyway would conceivably materially affect the selling value of plaintiff’s lot. Moreover, the plaintiffs allege in their complaint, and defendants admit in their answer that defendant Constance L. Muir-head has built and is maintaining two brick walls, in the language of the answer, “across what plaintiff contends is an alleyway,” and that defendants have built a fence, planted shrubbery, and made a badminton court on what plaintiffs contend is an alleyway. The jury finds with
plaintiffs’ contention. But defendants contend tbat as that part of the alleyway between their lots and plaintiff’s lot is not now open and in condition to be used by vehicular traffic, the brick walls, etc., have not interfered with use of the alleyway by plaintiffs. Even though such condition exists, the record fails to show that plaintiffs have done anything to deprive plaintiff Elsie E. Broocks of her right to the use of the alleyway, and to the extent that the brick walls are an obstruction defendants are interfering with the use of the alleyway. And the remedy of injunction is available to her. Pertinent thereto, it is held in the cáse of
Wheeler v. Construction Co.,
170 N. C., 427, 87 S. E., 221, that “platting into lots and streets and selling the lots by reference to the map, dedicates the streets thereon to the public in general and to the purchaser of lots in particular”; that “injunction is the proper remedy,” and that “the obstruction and closing up the street creates a nuisance, and each purchaser can, by injunction, or other proper proceeding, have the nuisance abated.”
The third contention of defendants is that, there being no allegation, or proof or finding that defendants have placed any obstructions upon the strip of land which has prevented the use of it by plaintiffs, the court erred in directing defendants to remove all obstructions which they placed upon same. What is said above with regard to the second contention applies with equal force here, and, hence, we hold that the court properly ruled.
Furthermore, the charge of the court fairly presented the case, and there is no error in refusing to charge as requested by defendants.
The authorities relied upon by defendants may not be applied to facts of the present case. We find
No error.