Evans v. . Horne

Winborne, J. The assignment of error mainly relied upon by appellants is to the refusal of their motions for judgment as of nonsuit aptly made in trial court. The position taken is that when those claiming under the dedicator, purportedly acting under the provisions of G. S., 136-96, entitled “Roads or streets not used within twenty years after dedication deemed abandoned,” filed a declaration withdrawing the portion of Carolina Street in controversy from public or private use to which theretofore it had been dedicated, had the effect of destroying all rights of plaintiffs in and to that portion of the street. This position is untenable in the light of the verdict on the second issue. The provisions of G. S., 136-96, as therein expressly stated, have “no application in any case where the continued use of any strip of land dedicated for street or highway purposes shall be necessary to afford ingress or egress to any lot or parcel of land sold and conveyed by the dedicator of such street or highway prior to 8 March, 1921,” the effective date of the statute. Hence, the jury having found that the continued use of the strip of land in question is “necessary to afford convenient ingress, egress and regress to the lot or parcel of land now owned by the plaintiffs as *585 alleged” tie provisions of tie statute, G. S., 136-96, iave no application, and tie challenge to tie ruling on tie motions for judgment as of non-suit on tiis ground may not be sustained. Moreover, in tie light of tie ioldings of this Court in tie cases of Ins. Co. v. Carolina, Beach, 216 N. C., 778, 7 S. E. (2d), 13, and Broocks v. Muirhead, 223 N. C., 227, 25 S. E. (2d), 889, on tie uncontroverted facts, plaintiffs would seem to be entitled to tie relief demanded as a matter of law. It is a settled principle that if tie owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys tie lots or any of them with reference to tie plat, nothing else appearing, he thereby dedicates tie streets, and all of them, to tie use of tie purchasers, and those claiming under them, and of the public. This principle is set forth and applied in both Ins. Co. v. Carolina Beach, supra, and Broocks v. Muirhead, supra, where numerous other decisions of tiis Court are cited. In Ins. Co. v. Carolina Beach, supra, tie dedicated boulevard in question was shown on original plat as being ninety-nine feet wide, and lots owned by defendant were purchased with reference to tiis map. Later an amended map was filed, showing tie boulevard to be eighty feet in width. Plaintiffs claimed ownership of tie nineteen feet not included iff tie boulevard as shown on latter map — and relied upon certain acts of tie General Assembly incorporating tie town of Carolina Beach. In reference thereto, tiis Court stated: “To iave deprived those who purchased lots with reference to tie original map, and those claiming under them, of appurtenant rights in and to tie streets, for tie purpose of vesting such rights in another merely for private use would run counter to provisions of tie Constitution of North Carolina, Art. I, section 17, and to tie 14th Amendment of tie Constitution of tie United States.” And in Broocks v. Muirhead, supra, tie dedicated alley extended from one street to another, and feme plaintiff bought lots fronting on a certain street and extending back to tie alley. One end of tiis alley was opened to use by plaintiffs. But other end was not so opened, and defendants obtained deed therefor, and undertook to close it. This Court, after stating tie general principle as to dedication of streets as herein-above stated, held as follows: “Applying these principles to tie factual situation in hand, tie first contention of defendants that tie court erred in refusing to grant their motion for judgment as of nonsuit for that there is no allegation or proof of ‘any special, particular, or peculiar injury of a substantial nature’ to plaintiff by reason of acts of defendants of which complaint is made, is met by tie holding of tiis Court in Hughes v. Clark (134 N. C., 457, 46 S. E., 956), where it is declared that ‘if tie streets be obstructed there is created thereby a public nuisance, and each purchaser can, by injunction or other proper proceed *586 ings, have tbe nuisance abated, as there is in all such cases an irrebuttable presumption of law that any complaining purchaser of a lot or lots has suffered peculiar loss and injury.’ “In this connection it must be borne in mind that plaintiff, Elsie E. Broocks, is not asserting rights enjoyed by the general public. She is asserting rights which were acquired when she purchased, and by reason of her purchase of lot 19 in Block C with reference to the map of Knoll-crest subdivision. By such purchase she acquired the appurtenant right to use the 16 foot alleyway, and to have same kept open and freed of obstruction for her use. So far as she, as a purchaser, is concerned, the dedication of the alleyway was complete, irrespective of whether it was opened and accepted by the governing body of the city for public use. In such case an irrebuttable presumption of law arose that she 'has suffered peculiar loss and injury.’ ” It will be noted that the present action, in factual situation, is distinguishable from the cases of Sheets v. Walsh, 217 N. C., 32, 6 S. E. (2d), 817, and Foster v. Atwater, ante, 472, 38 S. E. (2d), 316. Appellants further contend that the court erred in admitting evidence as to the reasonable uses to which plaintiffs intended to make of their lots. In the light of the holding of this Court on the main assignment of error as hereinabove stated, the intended use of the property is immaterial to the decisive questions, and the admission of the evidence to which exceptions are taken, is harmless, particularly since plaintiffs are not seeking recovery of damages. Other assignments of error have been given due consideration, and are not sustained. No error.