Conrad v. West End Hotel & Land Co.

Montgomery, J. In the year 1890 the defendant, The West End Hotel and Land Company, was the owner and in possession of a tract of land situated and lying on the western and northern boundaries of the city of Winston. The defendant company, with the view of opening up the tract of land as suburbs of the city, laid off the same into- lots to be sold for homes, public buildings, and squares, with streets and avenues. Immediately at the western end of Fourth street of the city, there was an open space of land, pear-shaped, *778 which tbe company called “Grace Court.” Tbe company extended Eonrtb street along tbei southern edge of Grace Court, and turned it toward tbe north along tbe western edge of Grace Court, and then by an avenue along tbe northern edge of tbe court to Fourth street. On the western side of tbe street, lying on tbe western edge of Grace Court, was a piece of land on wbicb tbe company was to build tbe Zinzen-dorf Hotel. A map with tbe outlines, which we have described, wais made by a competent engineer in tbe employment of defendant company, and by its direction registered in tbe office of tbe Register of Deeds of Forsyth County, in Book 35, p. 136. Afterwards, tbe plaintiffs each purchased from tbe defendant company one of tbe lots so laid off, lying along tbe Southern edge of Fourth street as it ran along Grace Court. In the deeds wbicb were executed by defendant company to tbe plaintiff purchaser's, reference was made to the plat which bad been filed in tbe register’s office, wbicb plat as we have seen contained tbe square called “Grace Court” and tbe streets surrounding and adjoining. Several of tbe lots have been built upon as homes. Since tbe execution of tbe deeds to tbe plaintiffs, tbe defendant company has sold and conveyed by, deed a part of Grace Court to tbe defendant W. B. Taylor, and is endeavoring to sell other parts of tbe court. Tbe plaintiffs claim that tbe registration of tbe plat of tbe land of defendant company, and tbe reference made in its deed to tbe plaintiffs to that plat, is a dedication of Grace Court to their use, and to tbe use of tbe public as an open court, and can not be closed by the defendant, or any persons claiming under it, by tbe erection of buildings thereon or by any other means. This action was brought for a perpetual injunction restraining the defendant hotel and land company from disposing of *779 tli© court oa* any part thereof for private purposes, or from otherwise depriving the plaintiffs of their enjoyment of the court as a public open ground, and from narrowing and closing up the streets surrounding the same; and that the defendant Taylor be forever restrained from erecting any building or placing other obstruction on any part of Grace Court, or from using the same for any private purpose. The defendants set up as a defense the averment that, notwithstanding the registration of the plat by the defendant company heretofore described, the plaintiffs, in truth, bought their lots not by the plat registered,, but under a certain lithographic map shown to the plaintiff purchasers at the time they bought, and in which Grace Court and other squares were reserved as the property of the defendant company and subject to its future disposition. The evidence of the defendants tending to show their contentions was rejected by the Court as incompetent, and the Court instructed the jury that,if they believed the evidence,to answer the issues in favor of the plaintiffs. We agree with his Honor that, as the defendant company in the execution of its deeds to the plaintiffs referred therein to the plat and map which they had caused to be registered, and not to the lithographed map, they were concluded thereby, and that no evidence to the contrary was admissible. 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. Meier v. Portland, 16 Oregon, 500. We think the same principle would apply to those pieces of land which were marked on *780 sucli a plat as squares, or courts, or parks, and that streets and public grounds designated on such a, map should forever be open to the purchasers and to the public. Gorgan v. Hay ward, 4 Fed. Rep., 164; Church v. Portland, 6 L. R. A., 659; Price v. Plainfield, 40 N. J. Law, 608. It is immaterial whether the public authorities of the city or county had formally accepted the dedication of the court. 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. Grace Court, as laid off on the plat, was not within the curtelage of the hotel, and therefore to be used in connection with it, but was outside of tire lot reserved for the hotel, across a' very wide street, and surrounded by lots laid off on the streets adjacent to it. The word “court,” when used in connection with such a piece of land, is synonymous in law with the words “park” and “square.” The exception made by the defendant to the refusal of his Honor to submit an issue as to the rights of the plaintiff Hanes is not of any consequence, for if the streets and court are for the benefit of the other plaintiffs and the public, he necessarily must share therein as a consequence. No error. Douglas, J., dissents, arguendo.