Winborne, J.
Appellants except to tbe judgment below upon two-grounds: (1) That tbe court erred in bolding as a matter of law tbat tbe evidence taken in tbe light most favorable to plaintiffs is insufficient to make out a case to be submitted to the jury; (2) tbat tbe court erred in signing tbe judgment without finding tbe facts.
It is our opinion, and we bold, tbat tbe exceptions are untenable.
1. At tbe outset it is noted tbat tbe evidence discloses tbat defendant owns and occupies lots sold with reference to tbe original map prior to tbe change of map in 1916.
It is a settled principle tbat if tbe owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys tbe lots or any of them with reference to tbe plat, nothing else appearing, be thereby dedicates tbe streets, and all of them, to tbe use of tbe purchasers, and those claiming under them, and of tbe public. S. v. Fisher, 117 N. C., 733, 23 S. E., 158; Moose v. Carson, 104 N. C., 431, 10 S. E., 689; Conrad v. Land Co., 126 N. C., 776, 36 S. E., 282; Collins v. Land Co., 128 N. C., 563, 39 S. E., 21; Davis v. Morris, 132 N. C., 435, 43 S. E., 950; Hughes v. Clark, 134 N. C., 457, 47 S. E., 462; Bailliere v. Shingle Co., 150 N. C., 627, 64 S. E., 754; Green v. Miller, 161 N. C., 24, 76 S. E., 505; Sexton v. Elizabeth City, 169 N. C., 385, 86 S. E., 344; Wheeler v. Construction Co., 170 N. C., 427, 87 S. E., 221; Elizabeth City v. Commander, 176 N. C., 26, 96 S. E., 736; Wittson v. Dowling, 179 N. C., 542, 103 S. E., 18; Stephens Co. v. Homes Co., 181 N. C., 335, 107 S. E., 233; Irwin v. Charlotte, 193 N. C., 109, 136 S. E., 368; Michaux v. Rocky Mount, 193 N. C., 550, 137 S. E., 585; Gault v. Lake Waccamaw, 200 N. C., 593, 158 S. E., 104; Somersette v. Stanaland, 202 N. C., 685, 163 S. E., 804.
In Hughes v. Clark, supra, tbe Court, referring to tbe cases of Moose v. Carson, supra; Conrad v. Land Co., supra; Collins v. Land Co., supra; and Rives v. Dudley, 56 N. C., 126, said: “Tbe effect of tbe foregoing decisions is tbat where lots are sold and conveyed by reference [786]*786to a map or plat which represents 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 town or city, if they be within municipal corporations. There is a dedication, and if they are not actually opened at the time of the sale they must be kept at all times free to be opened as occasion may require . . .” Wheeler v. Construction Co., supra.
In Sexton v. Elizabeth City, supra, it is said: “It is held that the original grantor, who sold by the map or diagram of the lands as laid out in 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.”
As stated in Green v. Miller, supra, “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, based 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.”
In Collins v. Land Co., supra, it was held “that a map or plat, referred to in a deed, becomes a part of the deed as if it were written therein, and that, therefore, the plan indicated on the plat is to be regarded as a unity, and the purchaser of a lot acquires a right to have all and each of the ways and streets on the plat, or map, kept open.” To support this view, the Court quotes with approval the following from Elliott on Roads, sec. 120: “It is not only those who buy lands or lots abutting on a road or street laid out on a map or plat that have a right to insist upon the opening of a road or street, but where streets and roads are marked on a plat and lots are bought and sold with reference to the map or plat, all who buy with reference to the general plan or scheme disclosed by the plat or map acquire a right to all the public ways designated thereon and may enforce the dedication. The plan or scheme indicated on the map or plat is regarded as a unity, and it is presumed, as well it may be, that all the public ways add value to all lots embraced in the general plan or scheme. Certainly, as every one knows, lots with convenient cross streets are of more value than those without, and it is fair to presume that the original owner would not have donated land for public ways unless it gave value to the lots. So, too, it is just to presume that the purchasers paid the added value, and the donor ought not, therefore, to be permitted to take it from them by revoking part of his dedication.”
[787]*787Under these principles, the New Hanover Transit Company, having made a map of its land, platting it into lots and streets, showing Lake Park Boulevard as a street ninety-nine feet wide, and having sold lots with reference to such map, thereby irrevocably dedicated the streets, including Lake Park Boulevard, to the use of the purchasers of lots so sold, and those claiming under them, and is estopped to deny the right of such purchasers, and those claiming under them, to an easement in all the streets represented and as represented on the map at the time of the purchase and conveyance with reference to it — irrespective of whether the town, when it was incorporated, accepted and opened the streets to their full width. The right of prior purchasers, and those claiming under them, to this easement was unaffected by the change of the map in 1916, even if it be conceded that the change was made pursuant to corporate action. There is no evidence that any of those who purchased lots with reference to the original map and prior to the change in 1916 have released rights acquired as appurtenant to the purchase. Hence, defendant, standing in privity to a purchaser of lots so conveyed, could compel New Hanover Transit Company, and those claiming under it, to abide by its dedication of the street. Somersette v. Stanaland, supra.
The evidence fails to show nonuser or abandonment of Lake Bark Boulevard as a street. The evidence is to the contrary. Hence, the statute, Public Laws 1921, ch. 174, referred to in the complaint as C. S., 3846 (rr), regulating the dedication of streets for public use'and limiting the time within which such dedication shall be accepted by the public, is here inapplicable. The statute provides that when the “strip, piece or parcel of land . . . dedicated to public use as a . . . street ...
Free access — add to your briefcase to read the full text and ask questions with AI
Winborne, J.
Appellants except to tbe judgment below upon two-grounds: (1) That tbe court erred in bolding as a matter of law tbat tbe evidence taken in tbe light most favorable to plaintiffs is insufficient to make out a case to be submitted to the jury; (2) tbat tbe court erred in signing tbe judgment without finding tbe facts.
It is our opinion, and we bold, tbat tbe exceptions are untenable.
1. At tbe outset it is noted tbat tbe evidence discloses tbat defendant owns and occupies lots sold with reference to tbe original map prior to tbe change of map in 1916.
It is a settled principle tbat if tbe owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys tbe lots or any of them with reference to tbe plat, nothing else appearing, be thereby dedicates tbe streets, and all of them, to tbe use of tbe purchasers, and those claiming under them, and of tbe public. S. v. Fisher, 117 N. C., 733, 23 S. E., 158; Moose v. Carson, 104 N. C., 431, 10 S. E., 689; Conrad v. Land Co., 126 N. C., 776, 36 S. E., 282; Collins v. Land Co., 128 N. C., 563, 39 S. E., 21; Davis v. Morris, 132 N. C., 435, 43 S. E., 950; Hughes v. Clark, 134 N. C., 457, 47 S. E., 462; Bailliere v. Shingle Co., 150 N. C., 627, 64 S. E., 754; Green v. Miller, 161 N. C., 24, 76 S. E., 505; Sexton v. Elizabeth City, 169 N. C., 385, 86 S. E., 344; Wheeler v. Construction Co., 170 N. C., 427, 87 S. E., 221; Elizabeth City v. Commander, 176 N. C., 26, 96 S. E., 736; Wittson v. Dowling, 179 N. C., 542, 103 S. E., 18; Stephens Co. v. Homes Co., 181 N. C., 335, 107 S. E., 233; Irwin v. Charlotte, 193 N. C., 109, 136 S. E., 368; Michaux v. Rocky Mount, 193 N. C., 550, 137 S. E., 585; Gault v. Lake Waccamaw, 200 N. C., 593, 158 S. E., 104; Somersette v. Stanaland, 202 N. C., 685, 163 S. E., 804.
In Hughes v. Clark, supra, tbe Court, referring to tbe cases of Moose v. Carson, supra; Conrad v. Land Co., supra; Collins v. Land Co., supra; and Rives v. Dudley, 56 N. C., 126, said: “Tbe effect of tbe foregoing decisions is tbat where lots are sold and conveyed by reference [786]*786to a map or plat which represents 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 town or city, if they be within municipal corporations. There is a dedication, and if they are not actually opened at the time of the sale they must be kept at all times free to be opened as occasion may require . . .” Wheeler v. Construction Co., supra.
In Sexton v. Elizabeth City, supra, it is said: “It is held that the original grantor, who sold by the map or diagram of the lands as laid out in 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.”
As stated in Green v. Miller, supra, “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, based 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.”
In Collins v. Land Co., supra, it was held “that a map or plat, referred to in a deed, becomes a part of the deed as if it were written therein, and that, therefore, the plan indicated on the plat is to be regarded as a unity, and the purchaser of a lot acquires a right to have all and each of the ways and streets on the plat, or map, kept open.” To support this view, the Court quotes with approval the following from Elliott on Roads, sec. 120: “It is not only those who buy lands or lots abutting on a road or street laid out on a map or plat that have a right to insist upon the opening of a road or street, but where streets and roads are marked on a plat and lots are bought and sold with reference to the map or plat, all who buy with reference to the general plan or scheme disclosed by the plat or map acquire a right to all the public ways designated thereon and may enforce the dedication. The plan or scheme indicated on the map or plat is regarded as a unity, and it is presumed, as well it may be, that all the public ways add value to all lots embraced in the general plan or scheme. Certainly, as every one knows, lots with convenient cross streets are of more value than those without, and it is fair to presume that the original owner would not have donated land for public ways unless it gave value to the lots. So, too, it is just to presume that the purchasers paid the added value, and the donor ought not, therefore, to be permitted to take it from them by revoking part of his dedication.”
[787]*787Under these principles, the New Hanover Transit Company, having made a map of its land, platting it into lots and streets, showing Lake Park Boulevard as a street ninety-nine feet wide, and having sold lots with reference to such map, thereby irrevocably dedicated the streets, including Lake Park Boulevard, to the use of the purchasers of lots so sold, and those claiming under them, and is estopped to deny the right of such purchasers, and those claiming under them, to an easement in all the streets represented and as represented on the map at the time of the purchase and conveyance with reference to it — irrespective of whether the town, when it was incorporated, accepted and opened the streets to their full width. The right of prior purchasers, and those claiming under them, to this easement was unaffected by the change of the map in 1916, even if it be conceded that the change was made pursuant to corporate action. There is no evidence that any of those who purchased lots with reference to the original map and prior to the change in 1916 have released rights acquired as appurtenant to the purchase. Hence, defendant, standing in privity to a purchaser of lots so conveyed, could compel New Hanover Transit Company, and those claiming under it, to abide by its dedication of the street. Somersette v. Stanaland, supra.
The evidence fails to show nonuser or abandonment of Lake Bark Boulevard as a street. The evidence is to the contrary. Hence, the statute, Public Laws 1921, ch. 174, referred to in the complaint as C. S., 3846 (rr), regulating the dedication of streets for public use'and limiting the time within which such dedication shall be accepted by the public, is here inapplicable. The statute provides that when the “strip, piece or parcel of land . . . dedicated to public use as a . . . street ... by any deed, grant, map, plat or other means, shall not have been actually opened and used by the public within twenty years from and after the dedication thereof, shall be thereby conclusively presumed to have been abandoned by the public for the purpose for which same shall have been dedicated.” But here all the evidence shows that Lake Bark Boulevard as originally platted on the map of June-September, 1913, was actually surveyed, staked and opened to use and has been used as a street continuously, certainly from the first of the year 1916 to the present time. While this use did not extend to the full width of the street, the unused portion has not by reason of it lost the character of street, for which it was originally dedicated. 44 C. J., 907. Hence, the registration of the written instrument of 4 May, 1935, attempting to withdraw Lake Park Boulevard as a street ninety-nine feet in width is without force and effect.
Further, plaintiffs call attention to the fact that when the charter was granted to town of Carolina Beach, Private Laws 1925, ch. 117, and when amended, Private Laws 1927, ch. 195, the only registered map [788]*788-showed Lake Park Boulevard to be eighty feet wide. They contend that in view of the fact that the map of June-September, 1913, was not registered until April, 1928, the Legislature, by these acts, recognized that the streets should be as shown on the registered map of 1916. However, perusal of those acts, as well as of chapter 188, Private Laws of 1933, leads to the conclusion that the Legislature undertook to do no more than fix the corporate limits of the town. 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. I, sec. 17, and to the 14th Amendment to the Constitution of the United States. See Moose v. Carson, supra. Compare Sheets v. Walsh, 217 N. C., 32.
Moreover, it may be granted that so far as the general public is concerned, acceptance is requisite to dedication. Wittson v. Dowling, supra; Irwin v. Charlotte, supra; Gault v. Lake Waccamaw, supra; Somersette v. Stanaland, supra. That the charter did not have the effect in law of an acceptance of Lake Park Boulevard as ninety-nine feet or eighty feet wide may also be conceded. Hughes v. Clark, supra. However, the board of aldermen, acting under the charter and pertinent laws, has the discretionary power as to the extent to which the street as dedicated to public use will be accepted, and may thereby limit the responsibility of the town for maintenance. But it has no right to relinquish or give away the unaccepted portion of the dedicated street. In the event of acceptance of portion of- street, as dedicated by plat of owner and sale of lots with reference thereto, the unaccepted portion would remain exactly as it was before it became a part of the town, dedicated to public use, though not kept in repair by the town, and is not to be obstructed because it must at all times be free to be opened as occasion may require. Hughes v. Clark, supra; Wheeler v. Construction Co., supra.
Therefore, if it be conceded that at the time Lake Park Boulevard as originally laid out had not been accepted by the public, the resolution of the board of aldermen, 5 July, 1935, rescinding the resolution of 21 May, 1935, and declaring the boulevard to be ninety-nine feet in width as originally dedicated as shown on map as recorded in Map Book 2, page 133, constituted an acceptance of it for the public.
After careful consideration, we fail to find sufficient evidence in support of plaintiffs’ allegations to take the case to the jury on the issues raised.
2. The statute, C. S., 556, provides in part that “an issue of fact must be tried by a jury unless a trial by jury is waived or a reference [789]*789ordered.” It is further provided in C. S., 569, that “upon trial of an issue of fact by tbe court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law separately.” While in the present case the court made no specific findings of fact, the effect of the written judgment is that when taken in the light most favorable to plaintiffs, all the evidence is insufficient to support a favorable finding for plaintiffs on any issue raised by the pleadings. We think this is sufficient compliance with the statute.
The judgment below is
Affirmed.