Walker, J.,
after stating the case: We may say, generally, that the right to the easement in a public highway may be acquired by grant or
dedication; by tbe exercise of the power of eminent domain, or by user for the requisite length of time.
Kennedy v. Williams,
87 N. C., 6. With respect to dedication, we have held in several cases that where the owner of real property lays out a town or village upon it, or even a plat of ground, and divides it into blocks or squares, and subdivides it into lots or sites for residences, which are intersected by streets, avenues, and alleys, and he sells and conveys any of the lots with reference to a plan or map made of the property, or where he sells or conveys according to a map of the city or town in which his land is so laid off, he thereby dedicates the streets and alleys to the use of those who purchase the lots, and also to the public, under certain circumstances not necessary to be now and here stated; and this is so, unless it appears either by express statement in the conveyance or otherwise that the reference to or mention of the street or streets was solely for the purpose of description, and not intended as a dedication thereof. The same rule is said to apply to such pieces or parcels of the land marked on the plat or map as squares, courts, or parks. 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 easements thus created. Many authorities sustain the principle; and the dedication, when once fully made, is held to be irrevocable.
Moose v. Carson,
104 N. C., 431;
S. v. Fisher,
117 N. C., 460;
Conrad v. Land Co.,
126 N. C., 776;
Collins v. Land Co.,
128 N. C., 563;
Hughes v. Clark,
134 N. C., 460;
Davis v. Morris,
132 N. C., 436
(s. c.,
141 N. C., 227);
Hester v. Traction Co.,
138 N. C., 293;
Tise v. Whitaker,
144 N. C., 514;
Bailliere v. Shingle Co.,
150 N. C., 627.
In
Smith v. Goldsboro,
121 N. C., 350,
Conrad v. Land Co., supra,
and
Collins v. Land Co., supra,
the principle is discussed with reference to suburban land which is divided into lots with intersecting streets and alleys, and parks and squares, and is afterwards included within the corporate limits of a town, to which ease it is held to be applicable. The Court said in
Conrad v. Land Co., supra,
at page 779 : “If the owner of land lays it off into squares, lots, and streets with a view to form a town or city, or as a suburb to a town or city, certainly if he causes the same to be registered in the county where the land is situated, and sells any part of the lots or squares, and in the deed refers in the description thereof to the plat, such reference will constitute an irrevocable dedication to the public of the streets marked upon the plat. We think the same principle would apply to those pieces of land which were marked
on sucb a plat as squares, or courts, or parks, and that streets and public grounds designated on sucb a map should forever be open to tbe purchasers and to tbe public. It is immaterial whether the public authorities of the city or county had formally accepted the dedication of the streets. The plaintiffs had been induced to- buy under the map and plat, and the sale was based not merely on the price paid for the lots, but there was the further consideration that the streets and public grounds designated on the map should forever be open to the purchasers and their assigns, citing
Meier v. Portland,
16 Oregon, 500;
Gorgan v. Hayward,
4 Fed. Rep., 164;
Church v. Portland,
6 L. R. A. (O. S.), 659;
Price v. Plainfield,
40 N. J. Law, 608. We are not disposed to abate this principle in the least, as it is firmly established in our jurisprudence, although there are decisions in other jurisdictions which do not carry it to the full length recognized in this Court. But, as we have seen, it is entirely equitable in its nature and founded upon the idea that it would be unjust, if not fraudulent, for the landowner to question or limit the right of his grantees, who have purchased lots, to all the privileges and easements expressly given or to be implied from his conduct. The estoppel upon him, being a creation of equity for the purpose of doing exact justice, should not be enforced inequitably as against those who have purchased any part of the property in good faith, for value and without notice. The purchaser of a lot designated on the map with the streets and alleys would not come into court with clean hands should he assert a right based itself upon an equitable consideration for him, and at the same time be unwilling to accord equity to his adversary, who has bought in ignorance of his rights, especially when it was caused by his own neglect in failing to register his deed. He who would ask equity must be willing to do equity. Discussing this view of the estoppel, we said in
Green v. Miller,
161 N. C., at p. 30: “While the rule is well established, it is necessary that in some way notice of the dedication, thus made, be fixed upon those who may buy any part of the property which is subject to or charged with the easement, or of the rights of others flowing from the dedication. It would be unjust that a rule which is based upon an equitable doctrine should in its application deprive a man of property bought in good faith, for value and without notice of the right to the easement. Parties who claim the benefit of the easement by virtue of the implied dedication can easily protect their right and interest in it by having proper reference made to the map in their deeds; and if they fail to do so, it is their own fault, and they should not be permitted to- visit its consequences upon an innocent purchaser who was misled by their laches. It is held that the original grantor, who sold by the map or the 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 the 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 may buy from him. So far as the owner is concerned, it would be fraudulent for him to contest the right of his grantees; but as to those who have bought without notice, actual or constructive, of the facts, and the equitable estoppel fastened upon him, 'the estoppel, grounded, as we have said, in an equitable principle, completely fails.
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Walker, J.,
after stating the case: We may say, generally, that the right to the easement in a public highway may be acquired by grant or
dedication; by tbe exercise of the power of eminent domain, or by user for the requisite length of time.
Kennedy v. Williams,
87 N. C., 6. With respect to dedication, we have held in several cases that where the owner of real property lays out a town or village upon it, or even a plat of ground, and divides it into blocks or squares, and subdivides it into lots or sites for residences, which are intersected by streets, avenues, and alleys, and he sells and conveys any of the lots with reference to a plan or map made of the property, or where he sells or conveys according to a map of the city or town in which his land is so laid off, he thereby dedicates the streets and alleys to the use of those who purchase the lots, and also to the public, under certain circumstances not necessary to be now and here stated; and this is so, unless it appears either by express statement in the conveyance or otherwise that the reference to or mention of the street or streets was solely for the purpose of description, and not intended as a dedication thereof. The same rule is said to apply to such pieces or parcels of the land marked on the plat or map as squares, courts, or parks. 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 easements thus created. Many authorities sustain the principle; and the dedication, when once fully made, is held to be irrevocable.
Moose v. Carson,
104 N. C., 431;
S. v. Fisher,
117 N. C., 460;
Conrad v. Land Co.,
126 N. C., 776;
Collins v. Land Co.,
128 N. C., 563;
Hughes v. Clark,
134 N. C., 460;
Davis v. Morris,
132 N. C., 436
(s. c.,
141 N. C., 227);
Hester v. Traction Co.,
138 N. C., 293;
Tise v. Whitaker,
144 N. C., 514;
Bailliere v. Shingle Co.,
150 N. C., 627.
In
Smith v. Goldsboro,
121 N. C., 350,
Conrad v. Land Co., supra,
and
Collins v. Land Co., supra,
the principle is discussed with reference to suburban land which is divided into lots with intersecting streets and alleys, and parks and squares, and is afterwards included within the corporate limits of a town, to which ease it is held to be applicable. The Court said in
Conrad v. Land Co., supra,
at page 779 : “If the owner of land lays it off into squares, lots, and streets with a view to form a town or city, or as a suburb to a town or city, certainly if he causes the same to be registered in the county where the land is situated, and sells any part of the lots or squares, and in the deed refers in the description thereof to the plat, such reference will constitute an irrevocable dedication to the public of the streets marked upon the plat. We think the same principle would apply to those pieces of land which were marked
on sucb a plat as squares, or courts, or parks, and that streets and public grounds designated on sucb a map should forever be open to tbe purchasers and to tbe public. It is immaterial whether the public authorities of the city or county had formally accepted the dedication of the streets. The plaintiffs had been induced to- buy under the map and plat, and the sale was based not merely on the price paid for the lots, but there was the further consideration that the streets and public grounds designated on the map should forever be open to the purchasers and their assigns, citing
Meier v. Portland,
16 Oregon, 500;
Gorgan v. Hayward,
4 Fed. Rep., 164;
Church v. Portland,
6 L. R. A. (O. S.), 659;
Price v. Plainfield,
40 N. J. Law, 608. We are not disposed to abate this principle in the least, as it is firmly established in our jurisprudence, although there are decisions in other jurisdictions which do not carry it to the full length recognized in this Court. But, as we have seen, it is entirely equitable in its nature and founded upon the idea that it would be unjust, if not fraudulent, for the landowner to question or limit the right of his grantees, who have purchased lots, to all the privileges and easements expressly given or to be implied from his conduct. The estoppel upon him, being a creation of equity for the purpose of doing exact justice, should not be enforced inequitably as against those who have purchased any part of the property in good faith, for value and without notice. The purchaser of a lot designated on the map with the streets and alleys would not come into court with clean hands should he assert a right based itself upon an equitable consideration for him, and at the same time be unwilling to accord equity to his adversary, who has bought in ignorance of his rights, especially when it was caused by his own neglect in failing to register his deed. He who would ask equity must be willing to do equity. Discussing this view of the estoppel, we said in
Green v. Miller,
161 N. C., at p. 30: “While the rule is well established, it is necessary that in some way notice of the dedication, thus made, be fixed upon those who may buy any part of the property which is subject to or charged with the easement, or of the rights of others flowing from the dedication. It would be unjust that a rule which is based upon an equitable doctrine should in its application deprive a man of property bought in good faith, for value and without notice of the right to the easement. Parties who claim the benefit of the easement by virtue of the implied dedication can easily protect their right and interest in it by having proper reference made to the map in their deeds; and if they fail to do so, it is their own fault, and they should not be permitted to- visit its consequences upon an innocent purchaser who was misled by their laches. It is held that the original grantor, who sold by the map or the 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 the 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 may buy from him. So far as the owner is concerned, it would be fraudulent for him to contest the right of his grantees; but as to those who have bought without notice, actual or constructive, of the facts, and the equitable estoppel fastened upon him, 'the estoppel, grounded, as we have said, in an equitable principle, completely fails. The same general principle of equity that raises the estoppel will protect him, as an innocent purchaser, from its operation; and this is but just and right.” In that ease many authorities were cited which strongly sustain the first limitation of the estoppel.
One who buys property of another without notice that some third person has a right to or interest in such property, and pays a full and fair price for the same, at the time of such purchase or before he has notice of the claim or interest of such other in the property, takes the same free from the right of the other, because he is regarded as an innocent purchaser and entitled to the equitable consideration of the court. It is a perfectly just rule, and it would be strange if the law were otherwise.
It is said in 13 Cyc., at pp. 492, 493, that, with the exception of
bona fide
purchasers for value and without notice, all parties holding under a dedicator take only his title. “The general rule as to the title taken by a
bona fide
purchaser without notice applies where the encumbrance is a dedication to the public use. Usually the state of the property or the records constitute notice by which the purchaser is bound, whether his knowledge of the easement be actual or not.” 13 Cyc.,
supra.
The doctrine, as directly applicable to this case, is well' stated in
Schuchman v. Borough of Homestead,
111 Pa. St., 48 : “It is reasonably certain that the Homestead Bank and Life Insurance Company dedicated the land to the public, and that a number of persons purchased lots expecting to enjoy the resulting advantage. However, nothing in the plan, or in the course of the title, or on the ground, was a warning to Ormsby Phillips of such dedication, and, therefore, he acquired a good title. The citizens of the borough suffer serious loss under the operation of a rule which applies to them as it would to an individual under similar circumstances.” And in
Harboro v. Smith,
85 Md., 538, the Court said: “It may be conceded that if there were any owners of lots who purchased under such circumstances and without notice of the contract or the agreement between the Patapsco and Brooklyn companies, they would have a standing in a court°of equity.”
Tbis same rule, we think, was impliedly recognized by this Court in
Collins v. Land Co.,
128 N. C., 563, and
Conrad v. Land Co.,
126 N. C., 776. It is true that the Court said, in the
Coll-ms case,
that registration of the map is not essential, as it is not such an instrument as is required to be registered, but afterwards, and in the same connection, explains what is meant by stating stressfully that the subsequent purchaser (Ashe-ville Land Company) “had actual notice of the plat and the sales thereunder made by the improvement company, and is, therefore, fixed with notice of the dedication of the streets. Besides,' it had notice from the registration of the deeds of the latter company.”
It may be well to remark that in all of the cases decided by this Court the subsequent purchaser, claiming the land occupied by a street or alley, as against a vendee from the original owner who bought according to the map, appears to have had either actual or constructive notice of the latter’s rights and easements in the abutting and adjacent streets and alleys.
Applying these principles to the facts of our case, we find that the case agreed (sections 4, 5, 11, 12, 13, and 14) is very full and explicit in stating that plaintiffs had no' actual knowledge of the dedication of the alley by the improvement company, and there was nothing on the ground to indicate that it had been set apart as an alley for the use of the public or the owners of the thirty-eight lots theretofore purchased from said company, nor was there any constructive notice, as the deeds for the thirty-eight lots were not registered, so far as appears. The registration of the map was not constructive notice, as it is not such a paper as is required or allowed to be registered by our law. On the contrary, the plaintiffs bought their lots by another map, which was made by the improvement company long after 1 March, 1892, when the first map was registered, that is, in April, 19'00, and their deeds referred to this map, which did not show the alley, but, on the contrary, made the line of the railway’s right of way the boundary of the improved property on that side, and in the description of these lots the railway was called for as one of these lines. Instead of having any notice of the alley being there, they were actually and positively led to believe that there had been no such dedication, and they acted upon the representation thus made to them, in good faith, and paid full value for the lots. As the registration of the first map was not constructive notice to them, and they had no actual notice of it, they occupy a most favorable position before the court, and are entitled to the protection of the principle which we have said has been settled by the authorities. Besides, as they had no actual notice, our statute which requires the registration of deeds as to
bona fide
purchasers for value, in order to pass the title, Eevisal, sec. 980 (Acts of 1885, ch. 147), protects them against the application of the ordinary
doctrine of estoppel relating to sucb cases. Tbe policy of our law now is tbat purchasers for value should be protected as against unregistered conveyances of the same property from the vendor, as nothing but registration shall be considered notice to them of any prior deed for the land, it having grown into an axiom that “No notice, however full and formal, will supply the place of registration.”
Todd v. Outlaw,
19 N. C., 235;
Piano Co. v. Spruill,
150 N. C., 168. We have said that the deeds to the thirty-eight lots were not registered, as the case does not state that they were, and what does not appear is presumed not to exist. Broom (6 Am. Ed.), star p. 163, says that, “On a special verdict the court will not look out of the record, nor assume a fact not stated therein, nor draw inferences of fact necessary for the determination of the case from other statements contained therein. Also, “In reading an affidavit, the court will look solely at the facts deposed to, and will not presume the existence of additional facts or circumstances in order to support the allegations contained in it. To the above, therefore, and similar cases, occurring not only in civil, but also in criminal proceedings, the maxim,
Quod non apparet non est
— that which does not appear must be taken in law as if it were not — is emphatically applicable.”
As the plaintiffs had no actual or constructive notice of the dedication of the alley, they are not bound by the map, and in unlawfully entering on the property which was theirs, the defendant committed a trespass.
Green v. Miller, supra.
There was, therefore, no error in the judgment upon the case agreed.
Affirmed.