County of Guilford v. Porter

Supreme Court of North Carolina

County of Guilford v. Porter

88 S.E. 855, 171 N.C. 356, 1916 N.C. LEXIS 81

CourtSupreme Court of North Carolina

DecidedApril 19, 1916

StatusPublished

Cited by3 cases

This text of 88 S.E. 855 (County of Guilford v. Porter) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

County of Guilford v. Porter, 88 S.E. 855, 171 N.C. 356, 1916 N.C. LEXIS 81 (N.C. 1916).

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Opinion

Clark, C. J.

This is the third appeal in this case. The former appeals are reported 167 N. C., 366, and 170 N. C., 310, where the facts are fully set forth (together with the map), and they need not be repeated here. The only question presented is as to the construction of our opinion in the last named case. That decision could not be reviewed on this new appeal. Construing that decision, we are of opinion, without again giving our reasons, that the judgment entered below should provide substantially as follows: Paragraphs I, II, III, IV, V, VII, VIII, IX, and X of the judgment sent up in the record are approved. In lieu of paragraph YI, which alone we set aside, the judgment should express the provision as follows: “The word ‘assigns’ as used in paragraphs I and II does not give the defendants Barker and Sockwell any rights in the two lots above mentioned, or in any other respect, because of their ownership of the two lots marked on the map ‘Barker and Sockwell.’ ”

We are of opinion that the rights as to the two lots marked “from Caldwell” and “from Porter” which the decree recognizes as outstanding respectively in the heirs of said Porter and of said Caldwell only, are not strictly an “easement,” but rather rights under a “dedication to a public use,” under which there was reserved to Caldwell and to Porter, respectively, and their heirs and assigns (of such right) merely the right to enter on either of said two lots to remove therefrom any buildings placed thereon, respectively, as shall be “inconsistent with its use as a public square.”

This is not the case where the owner of land lays it off into squares and streets and sells lots facing thereon. In such case, if the squares and streets have been accepted by the town, it is a dedication thereof, and the lots are sold with reference thereto, and this is a part of the contract. Conrad v. Land Co., 126 N. C., 776; Bailliere v. Shingle Co., 150 N. C., *360 627; Green v. Miller, 161 N. C., 24. But bere the county bought these two lots from Porter and Caldwell without any restriction, save that as to these two lots the vendors or their assigns could enter thereon and remove any buildings placed on said lots inconsistent with their use as a public square. There was no other right given to the vendors, nor any reservation in favor of the other lots held by them which have since passed to Barker and Sockwell or any one else.

Neither is such interest in Caldwell and Porter as to the lots conveyed to the county a “reversion,” for the reservation in the deed does not provide for a defeasance or forfeiture of the lots if such buildings, inconsistent with its use as a public square, are erected thereon, but merely reserves the right to the heirs of Caldwell and of Porter respectively, or their assigns, to “enter thereon and remove such buildings.”

With this modification of paragraph YI, the judgment now appealed from is affirmed. The costs of this appeal will be taxed against all the defendants who are appellants.

Modified and affirmed.

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Clark, C. J.

This is the third appeal in this case. The former appeals are reported 167 N. C., 366, and 170 N. C., 310, where the facts are fully set forth (together with the map), and they need not be repeated here. The only question presented is as to the construction of our opinion in the last named case. That decision could not be reviewed on this new appeal. Construing that decision, we are of opinion, without again giving our reasons, that the judgment entered below should provide substantially as follows: Paragraphs I, II, III, IV, V, VII, VIII, IX, and X of the judgment sent up in the record are approved. In lieu of paragraph YI, which alone we set aside, the judgment should express the provision as follows: “The word ‘assigns’ as used in paragraphs I and II does not give the defendants Barker and Sockwell any rights in the two lots above mentioned, or in any other respect, because of their ownership of the two lots marked on the map ‘Barker and Sockwell.’ ”

We are of opinion that the rights as to the two lots marked “from Caldwell” and “from Porter” which the decree recognizes as outstanding respectively in the heirs of said Porter and of said Caldwell only, are not strictly an “easement,” but rather rights under a “dedication to a public use,” under which there was reserved to Caldwell and to Porter, respectively, and their heirs and assigns (of such right) merely the right to enter on either of said two lots to remove therefrom any buildings placed thereon, respectively, as shall be “inconsistent with its use as a public square.”

This is not the case where the owner of land lays it off into squares and streets and sells lots facing thereon. In such case, if the squares and streets have been accepted by the town, it is a dedication thereof, and the lots are sold with reference thereto, and this is a part of the contract. Conrad v. Land Co., 126 N. C., 776; Bailliere v. Shingle Co., 150 N. C., *360 627; Green v. Miller, 161 N. C., 24. But bere the county bought these two lots from Porter and Caldwell without any restriction, save that as to these two lots the vendors or their assigns could enter thereon and remove any buildings placed on said lots inconsistent with their use as a public square. There was no other right given to the vendors, nor any reservation in favor of the other lots held by them which have since passed to Barker and Sockwell or any one else.

Neither is such interest in Caldwell and Porter as to the lots conveyed to the county a “reversion,” for the reservation in the deed does not provide for a defeasance or forfeiture of the lots if such buildings, inconsistent with its use as a public square, are erected thereon, but merely reserves the right to the heirs of Caldwell and of Porter respectively, or their assigns, to “enter thereon and remove such buildings.”

With this modification of paragraph YI, the judgment now appealed from is affirmed. The costs of this appeal will be taxed against all the defendants who are appellants.

Modified and affirmed.

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88 S.E. 855, 171 N.C. 356, 1916 N.C. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-guilford-v-porter-nc-1916.

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