Wittson v. Dowling

Hoke, J. Plaintiffs, devisees and heirs at law of Samuel Whittkow-ski, deceased, having contracted to sell to defendants a certain piece of land, now within the corporate limits of the city of Charlotte, for $20,000, and defendants resisting recovery on the alleged ground that plaintiffs are not in position to make a free and unincumbered fee-simple title, as required by the stipulations of the contract, the pertinent facts affecting the validity of the title offered are set forth in the case agreed as follows: [544] “Tbat in 1900 said Samuel "Wittkowski owned a tract of land lying in the then suburbs of Charlotte, consisting of a block bounded on the northeast by Elizabeth Avenue, on the southeast by Cecil Street, on the southwest by Providence Road, or East Fourth Street Extended, and on the west by Little Sugar Creek. “Some time thereafter, and prior to July, 1905, he had this block of land platted into numerous lots, on which plat (which was recorded) were left certain open spaces between the lots, marked 'alleyways/ and another open space 50 feet in width, and extending through the center of the block from Cecil Street to the creek, marked ^Meadow Street/ the whole square being boggy and swampy and lying several feet below the level of the surrounding streets. “Thereafter the said Wittkowski conveyed two lots off of this block to one Howie by deeds duly recorded in the register’^ office for Mecklen-burg County in 1905 and 1907, respectively. Since the latter date no other lots have been sold by the owners of said block, and no encumbrances whatever has been placed thereon. “Prior to the submission of this controversy to the court, the said Howie, for a valuable consideration, by deed duly executed and delivered, relinquished all rights of every nature and description, which he may have had in said alleyways and strip of land, designated on said map as 'Meadow Street/ and consented that the owners of said block might perpetually close the same, and use the entire block, with the exception of the two lots sold him, for such purposes as they may see fit. “Neither prior nor subsequent to the making and recording of said map has the public or any other person used the said so-called 'Meadow Street’ or any of the land shown on the said map, as streets or other public or private ways, and if the making and recording of the map amounted to a dedication of said so-called street and alleyways to public use, the proper authorities of said city have never by any act or deed accepted the said dedication. “The properly constituted authorities of the city of Charlotte, upon having called to their attention the fact that the said map had been made and recorded, did, by resolution duly adopted, prior to the submission of this controversy to the court, absolutely refuse to accept said alleged dedication, or to assume any of the burdens or responsibilities of opening, grading, or maintaining said so-called streets and alleys, for the reason that it was not only impracticable, but unnecessary for the public welfare that the said city should open up, grade, and maintain the same for public use.” It is the recognized principle here and elsewhere that, when the owner of suburban property or other has the same platted, showing lots, parks, streets, alleys, etc., and sells off the lots or any of them, in reference to [545] tbe plat, this, as between tbe parties, will constitute a dedication of tbe streets, etc., for public use, although not presently opened or accepted or used by tbe public. Elizabeth City v. Commander, 176 N. C., 26; Wheeler v. Construction Co., 170 N. C., 427; Green v. Miller, 161 N. C., 25. In many of the cases on the subject, this is spoken of as an irrevocable dedication, but the principle is dependent on the doctrine of equitable estoppel, giving the purchaser who has bought and taken title in reference to the plat, to have the same observed in its integrity. It is through bis position and by reason of it that the equity must be made effective, and, so far as examined, in all the cases where this expression has been used, the purchasers, or some of them, were insisting on their rights in the matter, or were in a position to do so. Green v. Miller, supra; Hughes v. Clark, 134 N. C., 457-463; Collins v. Land Co., 128 N. C., 563; Conrad v. Land Co., 126 N. C., 776; S. v. Fisher, 117 N. C., 733. In S. v. Fisher, Associate Justice Avery states, we think, the correct principle applicable, as follows: “If be and those claiming under him bad sold a single lot abutting on this apparent extension of North Elm Street, be, and those claiming under him, would have been estopped from denying the right of such purchaser and those in privity with him to use the street as laid down in the plat, . . . and this dedication of the easement, appurtenant to the land sold, would have been as between the parties irrevocable, though the street bad never been accepted by the town for public use,” citing Moose v. Carson, 104 N. C., 431. “Tbe estoppel in pais arising out of tbe fact that tbe grantee in such cases has been induced to part with bis money or its equivalent upon tbe representation of tbe grantor that a highway would be opened, makes tbe street as between them what it was represented to be, citing Grogan v. Town of Haywood, 4 Fed., 160.” And that this is tbe true character and effect of such a dedication is recognized in tbe opinion of Walker, J., in Green v. Miller, who states tbe principle as follows: “Where tbe 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 be sells or conveys any of these lots with reference to tbe plan or map of tbe property, or where be sells and conveys according to the map of a city or town in which tbe land is so laid off, be thereby dedicates tbe streets and alleys to tbe use of those who purchase the lots, and also to tbe public under certain circumstances not necessary to be now and here stated.” In so far as tbe general public are concerned, and without reference to tbe claims and equities of tbe individual purchaser, it is fully understood that a dedication is never complete until acceptance. Usually [546] creating burdens as well as conferring benefits, tbe attendant duties may not be imposed upon tbe public unless it bas in some proper way consented to assume tbem. True, tbis acceptance may be shown not only by formal action on tbe part of tbe authorities having charge of tbe matter, but, under certain circumstances, by user as of right on tbe part of tbe public or other facts, but unless and until acceptance bas been in some way established, it should be more properly termed an offer to dedicate on tbe part of tbe owner, and may be recalled by him before acceptance bad and usually is deemed to be recalled by deed in repudiation of tbe plat, and, at times, by deed conveying tbe land as an entirety without reference to tbe plat or any recognition of it and a user, according to tbe terms and intent of tbe deed. These general positions are recognized and approved in Tise, v. Whitaker, 146 N. C., 374; State Co. et al. v. Finley, 150 N. C., 726; S. v. Fisher, 117 N. C., 733, and authoritative decisions on the subject in other jurisdictions are very generally to the same effect. Dickinson v. Arkansas Imp. Co., 77 Ark., 570; People v. Johnston, 237 Ill., 237; Minneapolis, etc., R. R. Co. v. Town of Butt, 104 Iowa, 198; Lightcap v. Town of Judson, 154 Ind., 43; Schmidt v. City and County San Francisco, 100 Cal., 302; The People N. Y. v. Underhill, 144 N. Y., 316; Steinauer v. The City of Tell, 146 Ind., 490. In People of N. Y. v. Underhill it was decided that “to constitute a public highway by dedication, there must not only be an absolute dedication, but an acceptance and formal opening by tbe proper authorities or a user.” In Lightcap’s case, supra, it was held: “To constitute a dedication of land for highway purposes, there must be an offer of the land by the owner, and acceptance of such offer by the public or by the proper local authorities. “Tbe owner of certain real estate offered to dedicate a part thereof to the public for highway purposes. Before the offer was accepted such owner sold and conveyed the real estate, the deed of conveyance containing no reservation of the part so offered to the public: Held, that the conveyance constituted a revocation of the offer to dedicate.” And in Schmidt v. San Francisco, supra: “Where tbe dedication of a street or part of a street bas not been accepted, or tbe property used by tbe public, it is purely a question of estoppel in pais whether it can be revoked or not. If no one bas acted upon tbe offer in such a mode as to be injured by tbe revocation tbe owner may revoke tbe dedication, even though it be an actual dedication, and not a mere offer. “Where a cul de sac bas been marked upon a recorded map of a tract surveyed into streets, blocks, and lots, and such cul de sac was established in a block which was entirely unimproved, tbe owner of tbe tract bad a right to revoke tbe dedication or offer to dedicate tbe cul de sac, and a [547] conveyance of tbe entire block accompanying it by a description making no reference to tbe cul de sac, or to any alleged streets, amounts to a revocation if tbe purchaser bad no notice of any fact wbicb would bave estopped tbe grantor from revoking.” A proper application of these principles to tbe facts presented are in full support of bis Honor’s ruling that tbe defendant must comply with bis contract of purchase, it appearing that tbe only individuals who bave ever bought or now bold any of tbe lots bave executed a formal deed relinquishing any and all rights in tbe streets or alleys as indicated in tbe plat, and, as to tbe public, that these streets and alleys bave none of them ever been opened or used, and not only bave tbe public streets and avenues of tbe city of Charlotte been extended in entire disregard of tbe streets and alleys shown on tbe plat, but tbe city authorities having charge of tbe matter under tbe charter and general laws bave made formal renunciation of tbe public rights concerning them. There is nothing in Elizabeth City v. Commander, 176 N. C., 26, that in any way militates with tbe disposition we make of tbe present appeal. That case proceeded on tbe idea that tbe deed of owner was not a revocation, but was in full recognition of tbe plat containing bis offer of dedication. We bave not been inadvertent to tbe statute, Laws 1911, eb. 55, providing for tbe registration of plats of tbis character. Tbe law was no doubt enacted in view of a decision of tbis Court in Sexton v. Elizabeth City, 169 N. C., 385, in wbicb it was held that a purchaser in reference to a second plat who bad registered bis deed would take precedence over one under a former plat, but wbo bad failed to bave bis deed registered; tbis on tbe ground tbat, as no statute provided for registration of plats, tbe date of registration of tbe deed would determine tbe matter. Tbe statute was designed to regulate priorities as between two conflicting dedications, and does not and was not intended to effect tbe general principles, dedication and acceptance, and tbe owner’s right of revocation wbicb we bave held to be controlling on tbe facts of tbis record. There is no error, and tbe judgment for plaintiffs is Affirmed.