General Greene Investment Co. v. Greene

PARKER, Judge. In separate judgments dated 3 July 1979 the trial court granted the motions of defendants Edward I. Greene, G-K, Inc. and Underwood Realty Company for dismissal under Rule 12(b)(6) and for summary judgment under Rule 56. Because matters outside the pleadings were considered, we review the judgments under the standard applicable under Rule 56. Thus, defendants were entitled to summary judgment dismissing plaintiffs’ action if the record discloses that there is no genuine issue as to the material facts which establish the nonexistence of plaintiffs’ claims. In making that determination, the court must view all material furnished in support of and in opposition to the motions for summary judgment in the light most favorable to the plaintiffs as the parties opposing the motion. The movants have the burden of showing that there is no triable issue of fact and that they are entitled to judgment as a matter of law. Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E. 2d 375 (1978). Applying these principles to the present case, we hold that summary judgments were properly entered. Plaintiffs’ first claim for relief rests upon the theory that they possess certain dedicatory rights which entitle them to have Retreat Street maintained as an open street furnishing them access from the 3.5 acre tract of land to Wendover Avenue in Greensboro. The description in the 1 June 1971 deed from G-K, Inc. to plaintiff Investment Company referred to a plat of “Camp Stokes Property” recorded in Plat Book 2, Page 45, Guilford County Registry, and described a portion of the land conveyed as being a part of the “Camp Stokes Property.” The deed from plaintiff Investment Company to plaintiffs Kermit G. Phillips, II and wife, Jeannette S. Phillips, was not attached as an exhibit to the record. Even if it be assumed, however, that that deed also — 34 — made reference to the plat, the record discloses that plaintiffs have no rights by way of dedication in Retreat Street. The general principle is that where an owner has certain property platted, showing lots, streets, or alleys, and sells lots with reference to the plat, he thereby dedicates the streets and alleys to the use of those who purchase the lots and their successors in interest. Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736 (1918); Green v. Miller, 161 N.C. 24, 76 S.E. 505 (1912). As to those private parties, the dedication is irrevocable, except with the consent of the municipality acting on behalf of the public and the consent of those persons having vested rights in the dedication. Steadman v. Pinetops, 251 N.C. 509, 112 S.E. 2d 102 (1960); Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E. 2d 898 (1956). Even if the deed to the Phillips plaintiffs was made with reference to the plat of the “Camp Stokes property”, on which Retreat Street was shown as an open street, the record discloses that Retreat Street had been closed and effectively withdrawn from dedication by resolution of the City Council of the City of Greensboro on 21 August 1967, prior to the time any of the plaintiffs acquired title. At that time G.S. 153-9(17) [now G.S. 160A-299] granted to the governing body of a municipality the power to close any street or road or portion thereof upon the following conditions: (1) notification by registered letter to adjoining property owners who did not join in the request for the closing; (2) publication of notice; (3) determination by the governing body “that the closing of said road is not contrary to the public interest and that no individual owning property in the vicinity of said street or road or in the subdivision in which is located said street or road will thereby be deprived of reasonable means of ingress and egress to his property.” The statute provided further that: Upon the closing of a street or road in accordance with the provisions hereof, all right, title and interest in such portion of such street or road shall be conclusively presumed to be vested in those persons, firms or corporations owing lots or parcels of land adjacent to such portion of such street or road, and the title of each of such persons, firms or corporations shall, for the width of the abutting land owned by such — 35 — persons, firms or corporations, extend to the center of such street or road. Plaintiffs contend that, despite the resolution of the City Council closing Retreat Street, plaintiff Investment Company purchased the property upon the representation that Retreat Street was open and that they are not bound by the resolution on the grounds that it was indexed only under the City of Greensboro in the grantor index in the Register of Deeds office in Guilford County and that the record does not disclose that notices required by G.S. 153-9(17) were given. This contention is without merit. In its resolution of 21 August 1967 the City Council found that notice that the hearing was to be held had been duly published and that the owners of all of the property abutting both sides of the portion of Retreat Street to be closed had requested such closing in writing.1 No appeal was taken from the Council’s action as allowed by G.S. 153-9(17). Because all of the abutting owners did consent to the closing, no other notices by mail to landowners were required by G.S. 153-9(17), and plaintiffs may not collaterally attack the Council’s finding that notice of the hearing was duly published. Further, we conclude that indexing of the resolution of the City Council closing Retreat Street under the name of the City of Greensboro, without also indexing it under the names of the abutting landowners who acquired the fee simple title to the portion closed, was all that G.S. 153-9(17) required. The statute provided only that a certified copy of the resolution of the governing body closing a street “shall be recorded in the office of the register of deeds office.” The vesting of title to the closed street in the abutting landowners as a result of the resolution occurred not by conveyance from the municipality, but by operation of law. — 36 — There being no genuine issue of material fact as to the validity of the City Council’s resolution closing the portion of Retreat Street abutting the property which plaintiffs acquired, the question remains whether any such issue exists with respect to plaintiffs’ claim of title to the strip of land representing what was formerly Retreat Street. As a result of the closing, defendant Underwood acquired fee simple title from its abutting boundary to the center of the street from the north, and defendant Edward I. Greene acquired fee simple title from his abutting boundary to the center of the street from the south. Although plaintiffs Kermit G. Phillips and Jeannette S. Phillips contend that they have title to the contested strip by adverse possession for seven years under color of title, the documentary evidence refutes their claim that color of title has been shown. Color of title has been defined “as a paper writing which on its face professes to pass the title to land but fails to do so because of want of title in the grantor or by reason of the defective mode of conveyance used.” Trust Co. v. Parker and Parker v. Trust Co., 235 N.C. 326, 332, 69 S.E. 2d 841, 845 (1952). The 1 June 1971 deed from G-K, Inc. to Investment Company, the Phillips’s predecessor in title, conveyed no title to any property beyond the borderline of Retreat Street with the remainder of the tract conveyed. The deed conveying the same property from Investment Company to the Phillipses is not a part of the record, but even if the Phillipses have otherwise satisfied the legal requirements of adverse possession, the absence of a “paper writing” purporting to pass title to the closed portion of Retreat Street either to Investment Company or to the Phillipses defeats any claim of adverse possession under “color of title.” No title could ripen until plaintiffs’ possession had been maintained for twenty years. Newkirk v. Porter, 237 N.C. 115, 74 S.E. 2d 235 (1953). Neither is there any showing upon this record that when plaintiff Investment Company purchased the property in 1971, there was any representation by any of the defendants that they were conveying title beyond the Retreat Street boundary of the 3.5 acre tract. In April 1969 defendants Edward I. Greene and Esther Z. Greene had conveyed the 3.5 acre tract to G-K, Inc. by warranty deed, but they did not convey their fee simple title to the portion of Retreat Street which was closed. Neither was a party to the 1971 contract of sale with plaintiff Invest — 37 — ment Company. G-K, Inc. alone entered into a contract with Investment Company to convey title to the subject property, and G-K alone executed the warranty deed dated 1 June 1971 in accordance with the contract of sale. Neither the contract of sale nor the warranty deed contained language promising to convey or purporting to convey any property north of the boundary of the tract with Retreat Street, title to which G-K, Inc. had never held. Absent allegations or any forecast of evidence of mutual mistake or fraud in the drafting of the 1971 deed from G-K, Inc. to plaintiff Investment Company, plaintiffs have raised no issue of material fact which would, if resolved, entitle them to reformation of the deed to include any portion of the closed section of Retreat Street. Crawford v. Willoughby, 192 N.C. 269, 134 S.E. 494 (1926). The last of plaintiffs’ claims for relief is based on allegations that they are entitled to recover $29,200.00 of the defendants for improvements made by them to Retreat Street, including grading, filling and building a retaining wall, in the good faith belief that they were maintaining a dedicated public way jointly with Underwood Realty, the property owner adjoining on the northeast. Although plaintiffs refer in their prayer for relief to the improvements as “betterments,” the right to betterments is a defensive right only, which accrues to a party possessing land under color of title when the true owner seeks to enforce his right to possession. Homes, Inc. v. Holt, 266 N.C. 467, 146 S.E. 2d 434 (1966). Such is not the present case. Even treating the claim as grounded on the equitable doctrine of unjust enrichment, see Rhyne v. Sheppard, 224 N.C. 734, 32 S.E. 2d 316 (1944), no genuine issue of material fact has been raised which would prevent entry of summary judgment in favor of defendants. The essence of such a claim is that an owner of property who stands by while another, acting in the good faith belief that he has the right to do so and without inexcusable negligence, erects improvements upon that property, should not be entitled to retain the benefits without paying therefor. Rhyne v. Sheppard, supra. We hold as a matter of law that plaintiffs did not have the requisite good faith belief. Once an owner of land has dedicated a road to the public, with the sanction of the authorities, those authorities are thereafter responsible for maintenance and repairs: Kennedy v. Williams, 87 N.C. 6 (1882). G.S. — 38 — 160A-296 and G.S. 136-66.1(2) confer upon municipalities not only the power, but also the duty, of extending, paving, cleaning and improving existing streets, and this duty may be delegated by contract to individuals only where the statutory bidding requirements are met. Plaintiffs in the present case did not purport to act under any colorable authority when they chose to improve Retreat Street in the erroneous belief that they were maintaining a dedicated public way. Thus, they can claim no good faith, albeit erroneous, belief that they had the right to make any improvements to the street, and they have no cause of action against the private individuals who in fact owned the property at the time the improvements were made. Defendants carried their burden of showing that there were no issues of material fact to be resolved at trial. The judgments appealed from granting summary judgments in favor of defendants Edward I. Greene, G-K, Inc. and Underwood Realty Company are Affirmed. Judges Martin (Harry C.) and Hill concur. Footnotes [1] In its resolution the City Council also found as a fact “that the closing of the portion of [Retreat] street is not contrary to the public interest and that no individual or other party owning property in the vicinity of the street, or in the subdivision in which the street is located, will be deprived of reasonable means of ingress and egress to his or its property.” Maps furnished for the hearing on defendants’ motions for summary judgment show that plaintiffs’ 3.5 acre tract abuts on and has direct access to Battleground Avenue, a major thoroughfare in the City of Greensboro.