Department of Transportation v. Kivett

HEDRICK, Chief Judge. Defendant’s sole assignment of error based upon an exception to the judgment raises the question whether the trial court’s [513] findings of fact support its conclusion that the property at issue was dedicated to the Department of Transportation as a right of way. Defendant argues that in order to sustain a judgment that the Department of Transportation owned a right of way over defendant’s property, the court must make findings that either defendant or his predecessor in title, through his words or acts, manifested an intent to dedicate the property. The trial judge apparently concluded that the Department of Transportation had a right of way over the 11,000 square feet in question based on three theories: 1) there was a presumption that the Department of Transportation owned the right of way; 2) the defendant or his predecessor in title expressly dedicated the right of way to the Department of Transportation; or 3) the defendant or his predecessor in title, by his words or deeds, impliedly dedicated the right of way to the Department of Transportation. We find no law or finding of fact to support the conclusion by the trial judge that the Department of Transportation was presumed to own the right of way in question. Although counsel for the Department of Transportation in his oral argument before this Court stated that the Department of Transportation was relying upon an express dedication of the property, we find nothing in this record remotely tending to show that the defendant or his predecessor in title expressly dedicated the property to the Department of Transportation for public use. The final theory adopted by the trial court was that the defendant or his predecessor in title had impliedly dedicated the property to public use. As defined in Spaugh v. Charlotte, 239 N.C. 149, 79 S.E. 2d 748 (1954), dedication is the intentional appropriation of land by the owner to some proper public use. An implied dedication is one arising by operation of law from the acts of the owner. When proving implied dedication, where no actual intent to dedicate is shown, the manifestation of implied intent to dedicate must clearly appear by acts which to a reasonable person would appear inconsistent and irreconcilable with any construction except dedication of the property to public use. Highway Commission v. Thornton, 271 N.C. 227, 156 S.E. 2d 248 (1967). While there is evidence in the record that might support findings of fact which in turn might support a conclusion that the [514] property in question was impliedly dedicated to public use, the trial judge’s failure to make definitive findings from the evidence, and to draw a proper conclusion therefrom, requires that there be a new trial to determine the issue as to the precise amount of defendant’s land taken by the Department of Transportation. Thus the order dated 12 April 1984 is vacated, and the cause is remanded for a new trial. Vacated and remanded. Judges Wells and Martin concur.