Town of Lumberton v. Branch

Allen, J. The burden was on the plaintiff to show that the land in controversy, and now in possession of the defendant, is a public street of Lumberton, and if it has failed to do so the action must fail. The introduction of the grant to Wilson, and of the deed from Wilson to Tatum and others for sale by lottery, with evidence that the two *251 papers covered tbe locus in quo, carried tbe legal title to Tatum and others, and as lots were sold witb reference to a plat tbis would be a dedication of tbe streets and public ways, appearing on tbe plat, to tbe use of tbe public. It was therefore necessary for tbe plaintiff to.identify tbe plat under which lots were sold, and to show that tbe land in controversy was represented thereon as a street. Tbe evidence of identification of tbe plat relied on as tbe original may be sufficient to be submitted to a jury, but it is largely conjectural. C. B. Townsend testified: “I went in as clerk of tbe court of Eobeson County in 1879, and served about sixteen years. In going through some old dilapidated records and straightening up things after I got in, I found something that I suppose was tbis map you band me, only it was folded and wrapped rip in newspapers, and it bad tbe original lottery tickets. It was a map just like tbis here witb these names on it, and I concluded tbis is tbe same thing. • Of course it has been smoothed out since then. It was similar to tbis, and folded up in a dilapidated condition in faded piece of newspaper and in a cupboard arrangement in there, and bad tbe original lottery tickets. It attracted my attention because it was unique for me to see something of that sort wrapped up in a little package, and bad something about drawing lots in tbe town of Lumberton, and something similar to that, which I take to be tbe same thing. That was some time in 1879. They were supposed to be lottery tickets; they bad names of lottery tickets and said ‘drawing of town lots in tbe town of Lumberton,’ and they were pinned together and kind o’ tied up, little bits of paper, numbers on them. And tbe map was similar to tbis one, and I take it to be tbe same. Looks very much like tbe map I found; I concluded it was. It was folded up and in a dilapidated condition, wrapped up in old faded newspaper.” It will be noted that tbe original plat was folded, wrapped in newspapers, and bad lottery tickets witb it, while tbe one offered in evidence was “smoothed out,” bad no newspaper or lottery tickets witb it, and tbe most tbe witness can say of it is be supposes it is tbe original. Assuming, however, that it has been identified, what does it show? It is divided into blocks, consisting of four lots each, except a few irregular blocks, and tbe lots are numbered from 1 to 181. Tbe outer boundary of these blocks does not include tbe land in controversy, which is adjacent to lots 116 and 129, which are south of lots 115 and 128, tbe four lots composing one block. Streets are laid off on tbe plat, those running east and west being numbered from 1 to 11, and tbe street north of tbe block described above is First Street, leaving tbe block between tbe street and tbe disputed land. *252 The dispute is not called a street on the plat, nor is there any line within three blocks indicating a purpose to leave an open space for the use of the public. The town of Lumberton has not opened and improved it for street purposes, although the plat is one hundred and thirty-three years old, and it would be difficult to do so on account of natural conditions. The only circumstance favorable to the plaintiff is that the old plat is worn away on the edges, and on its eastern side there is a line running a short distance, and then disappearing where a part of the plat is gone, which might have extended originally across the plat so as to indicate a street covering the dispute. There is no evidence outside of the plat to strengthen this suggestion, and it is .weakened by the fact that there is a line in another part of the plat which does not extend across it, and by the failure of the plaintiff to use and occupy the disputed territory as a street, and in' our opinion a line, which may have existed on a plat supposed to be the original is too indefinite to establish the dedication of a street, and that his Honor was correct-in holding against the plaintiff on its own title. There is also very little, if any, dispute that the defendant and those under whom he claims have been in the adverse possession of the land since 1861 under deeds, and it is settled in Threadgill v. Wadesboro. 170 N. C., 643, in which the authorities relied on by the plaintiff are reviewed, that title to land could be acquired against a municipal corporation prior to the act of 1891 (Rev., 389), by adverse possession. If not, why pass the act? No error.