Elizabeth City v. . Commander

AlleN, J. Tbe defendant concedes that tbe survey and plat made by Busb & Lippincott, subdividing tbe land into lots and laying off streets tbereon, including Dyer Street, was an offer to dedicate tbe street to tbe use of tbe public, and that if this offer bad been accepted by tbe city, or if lots bad been conveyed calling for tbe streets, before tbe revocation of tbe offer by Busb & Lippincott, tbe offer would then have been irrevocable ; but be contends that there was no acceptance of offer and no deed calling for streets executed prior to tbe execution of tbe deed to Berry on 15 September, 1882, and that as this conveyed tbe street it was a revocation of tbe offer. This position of tbe defendant is fully sustained by tbe authorities, if tbe deed to Berry is a revocation, but if not a revocation, tbe subsequent deeds by Busb & Lippincott calling for streets and referring to tbe plat are an irrevocable dedication, although Dyer Street was not referred to. Conrad v. Land Co., 128 N. C., 776; Collins v. Land Co., 128 N. C., 564; Hughes v. Clark, 134 N. C., 459; Baillere v. Shingle Co., 150 N. C., 637; Green v. Miller, 161 N. C., 29; Sexton v. Elizabeth City, 169 N. C., 390; Wheeler v. Construction Co., 170 N. C., 428. Tbe Court says, in Conrad v. Land Co.: “If tbe 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 be causes tbe same to be registered in tbe county where tbe land is situated, and sells any part of 'the lots or squares, and in tbe deed refers in tbe description thereof to tbe plat, such reference will constitute an irrevocable dedication to tbe public of tbe streets marked upon tbe plat. Meier v. Portland, 16 Oregon, 500. . . . It is immaterial whether tbe public authorities of *30 the city or county had formally accepted the dedication.” And in Collin v. Land Co., quoting from Elliott on Roads: “It is not only those who buy lands or lots abutting on a street or road laid out on a map or plat that have a right to insist upon the opening of a street or road, 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 the lots embraced in the general scheme or plan. 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 to 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.” Both of these cases are affirmed and approved in the other cases cited. It becomes, therefore, of the first importance to determine the proper construction of the Berry deed, and to see whether it can be held to amount to a revocation. The deed of 15 September was executed four days after the execution of the deed from Smith, purporting to convey lots marked on the plat, which clearly recognized the right of the city 'in Dyer Street, because it says that the conveyance is subject “to any vested or prescribed rights of the corporation of Elizabeth City and others as to Dyer Street.” The deed of 15 September contains no express terms of revocation, and on the contrary one of the boundaries in the deed is described as “extending from Dyer to Poplar Street.” It goes further than this, because, immediately following the enumeration of the boundaries, it is said in the deed: “The description herein made is according to a plat recorded in the office of the Register of Deeds of Pasquotank County, in Book 4, pages 38 and 39.” The legal effect of this last clause in the description is, according to the authorities, to incorporate the plat in the deed as a part of the description of the land conveyed. Everett v. Thomas, 23 N. C., 252; Euliss v. McAdams, 108 N. C., 511; Hémphill v. Annis, 19 N. C., 516; Gudger v. White, 141 N. C., 517; Baillere v. Shingle Co., 150 N. C., 637. The Court says, in Everett v. Thomas: “We do not doubt that, by a proper reference of one deed to another, the description of the latter may be considered as incorporated into the former, and both be read as one instrument for the purpose of identifying the thing intended to he conveyed.” And in Hemphill v. Armis: “It has been well settled by a series *31 of adjudications that where a reference is made in one deed to another for a more definite description, the effect is to incorporate the description of the instrument referred to into that containing the reference, provided the language used points so clearly to ’the explanatory deed or instrument as to make it possible to identify it.” And the other cases are to the same effect. •We have, then, in the deed to Berry two descriptions — one sufficient to convey the fee in the street, and the other conveying the land and imposing upon it the easement; and following the rule of construction announced in Gudger v. White, 141 N. C., 517, that the whole deed must be considered in determining the intent of the parties, and in Modlin v. R. R., 145 N. C., 222, that effect must be given to all the clauses of the deed except when they are inconsistent and irreconcilable, the proper interpretation of the deed is that it conveyed the fee to all of the land, including Dyer Street, subject to the easement in Dyer Street for the use of the public; and if so, it cannot have the effect of revoking the offer to dedicate the street, arising upon the survey and plat made by Bush & Lippincott; and the execution of this deed and the subsequent deeds calling for lots and streets made this offer irrevocable. We are therefore of opinion that, upon the facts that were not in dis-puté, his Honor held correctly that the plaintiff was entitled to the relief prayed for. No error.