52 N.C. 22 | N.C. | 1859
The act complained of was the putting of certain barrels of tar upon a landing embraced in a grant to David O. Askew, dated 16 December, 1833, which land had been conveyed by proper assurances to the plaintiff. It appeared that the plaintiff and his ancestor David occupied the land for a long time, claiming it as their own, and down to the time of bringing this action. The grant of 1833 was a (23) substitute, by virtue of an act of Assembly, for a previous one, alleged to have been destroyed by the burning of the records of Hertford County.
It appeared further that the public road led to and passed by the landing; that it was on a navigable stream, and that seagoing vessels resorted to it; that the landing, as well as the road, had been used by the public, as a matter of right, for more than thirty years. The writ issued in March, 1859.
The plaintiff's counsel contended that the time which had elapsed since the year 1833 was not sufficient to create the presumption of a dedication to the public, and that the taking out a grant in 1833 precluded the inquiry from being extended beyond that time.
But his Honor was of opinion that the use of the landing for the length of time stated by the witnesses was a sufficient ground for them to presume a dedication to the public, and so instructed the jury, who rendered a verdict for the defendant, and the plaintiff appealed.
The defense relied upon was clearly established by the proof that the locus in quo had been used as a public landing for more than twenty years after 1833, before the commencement of the action. It was, therefore, unnecessary to inquire whether such use had existed prior to the grant issued in 1833 to David O. Askew, under whom the plaintiff claimed. The owner of land may dedicate it to the use of the public as a highway, or street, or square, by an immediate act, which will operate not as a grant (for the want of a grantee), but as anestoppel in pais. Thus, if the owner lay out upon his land the plan of a town or village, with the usual streets and squares, and then sell the lots, the streets and squares will be at once presumed to be dedicated to the use of the public, because it would be a fraud upon the purchasers of the lots, as well as upon the public, if he were permitted to resume his right of private property. Rives v. Dudley, 56 N.C. at p. 136. See, also, the notes to Dovaston v. (24)Payne, in the American Ed. 2 Smith's Leading Cases, 90. Where there is no immediate dedication of his land to the public, to be presumed from the act of the owner, yet, if he acquiesce in the use of a portion of it by all persons as a highway, public landing, and the like, for twenty years or more, the law will, from such acquiescence, raise a presumption of a dedication of that portion to the use of the public, and he will be forever afterwards prohibited from so treating it as his private property as to prevent the public from the enjoyment of the easement. Woolard v. McCullock,
PER CURIAM. No error.
