Green v. Miller
76 S.E. 505
N.C.
1912
Check Treatment
Walker, J.,

after stating the facts: It is evident that this case must be decided upon the single question as to whether defendant was a bona fide purchaser for value and without notice of the facts alleged by the plaintiffs to constitute an equitable estoppel, which means that if he is hound thereby, he is concluded from now asserting that he is lawfully within the limits of Pungo Street, west of Pamlico Street, and cannot continue to maintain his stable or other structure. There was much controversy as to whether Pungo Street, Avest pf Pamlico Street, if represented as such on the Bullock map, had ever actually been laid out, by such physical marks and boundaries as to constitute notice to the world that the land corresponding to that so designated on the map had been appropriated for a street and dedicated to the use of Bullock’s grantees or to the public. Bullock himself testified that Pungo Street, west of Pamlico, “had not been surveyed nor opened up,” nor did the surveyor plat all of the land. He further stated that “the surveyor might have surveyed east Pungo Street, that is, east of Pamlico Street, but he did not survey west of that street, and they did not open any street from Pamlico Street westwardly to Haslin Street.” He still further testified that he employed Mr. Tripp to make the survey, who made a plat for him, but did not plat it all. “It was more than the survey. I have never had the plat. The Clarks made the street themselves. Pamlico Street is the only street which has been left like I first cut them out. They have all been changed more or less. Parties built without knowing where the streets were. For instance, this man Pettiford, the husband of Josephine Pettiford.” W.W. Walker testified that he bought the land where the stable is, from Dr. Bullock; hut it seems that the deed was made by Dr. Bullock to L. G-. Roper, *29wbo in turn sold and conveyed to tbe defendant A. Miller. Tbe witness Walker, wbo built tbe stable, stated that there was no street west of Pamlico, and nothing but a swamp. That tbe town of Belhaven bad notified him, by its proper officers, and while he was setting the pillars, to desist from completing the stable until a committee could be appointed to condemn the street for the town. Afterwards, the committee reported, and the commissioners of tbe town accepted tbe report as to Pungo Street east of Pamlico, and rejected it as to tbe land lying west of that street, and authorized him to proceed with bis work and finish the building, which he did. He listed tbe property for taxation and paid the taxes assessed against it. When be was building the stable there was no street there, but a street called Pungo was opened on tbe east side of Pamlico. This is only some of tbe testimony bearing upon tbe main question in the case. N. L. Sawyer testified: “I live in Washington, and lived in Belhaven thirteen years. I know where Miller’s stables are. When I lived there it was nothing but swamp and subject to tbe ebb and flow of tbe tide. I know when Mr. Walker built. There was no sign of any street.” There was much more testimony to the same effect.

With this evidence behind the verdict to sustain the finding of the jury upon the seventh issue, tbe court, without disturbing tbe verdict, in any respect, adjudged thereon that defendants remove the buildings from tbe street called Pungo, west of Pamlico, enjoined them from maintaining any kind of obstruction therein, and decreed that tbe street be kept open and free from any impediments, for the use of the inhabitants of tbe town of Belhaven, without let or hindrance.

In this we are of the opinion there was error, and the judgment should have been tbe other way. Where the 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 and conveys any of tbe lots with reference to a plan or map made of the property, or where be sells or conveys according to a map of tbe city or town in which bis land is so laid off, be thereby dedicates tbe streets *30and alleys to tbe use of those who purchase the lots, and also to the public, under certain circumstances not necessary to be now and here stated, and this is so unless it appears either by express statement in the conveyance or otherwise that the reference to or mention of the street or streets was solely for the purpose of description, and not intended as a dedication thereof. 13 Cyc., 455. The same rule is said to apply to such pieces or parcels of the land marked on the plat or map as squares, courts, or parks. The reason for the rule is that the grantor, by making such a conveyance of his property, induces the purchasers to believe that the streets and alleys, squares, courts, and parks will be kept open for their use and benefit, and having acted upon the faith of his implied representations, based upon his conduct in platting the land and selling accordingly, he is equitably estopped, as well in reference to the public as to his grantees, from denying the existence of the easement thus created. 13 Cyc., 457 and notes. Many authorities sustain the principle, and the dedication, when once fully made, is held to be irrevocable. Moose v. Carson, 104 N. C., 431, and numerous authorities cited in the opinion of the Court by Justice Avery, and also at the end of the case in the annotated edition by the present Chief Justice; Davis v. Morris, 132 N. C., 436; Hughes v. Clark, 134 N. C., 460; Milliken v. Denny, 135 N. C., 22 (s. c., 141 N. C., 227); Hester v. Traction Co., 138 N. C., 293; S. v. Fisher, 117 N. C., 740; Tise v. Whitaker, 144 N. C., 514; Collins v. Land Co., 128 N. C., 563; Bailliere v. Shingle Co., 150 N. C., 627; and other authorities cited in the briefs of counsel in this case, to which access may be had by those wishing to pursue the investigation further.

. But while the rule is well established, it is necessary that in some way notice of the dedication, thus made, be fixed upon those who may buy any part of the property which is subject to or charged with the easement, or of the rights of others flowing from the'dedication. It would be unjust that a rule which is based upon an equitable doctrine should in its application, deprive a man of property bought in good faith, for value and without notice of the right to the easement. Parties who claim the benefit of the easement by virtue of the implied dedication *31can easily protect tbeir right and interest in it by having proper reference made to the map in their deeds-, and if they fail to do so, it is their own fault, and they should not be permitted to visit its consequences upon an innocent purchaser who was misled by their laches. It is held that the original grantor, who sold by the map or the diagram of the land as laid out into blocks and lots, streets and avenues, and those claiming under him, are estopped to deny the right of prior purchasers of lots to an easement in the streets represented on the map, but it is not a strict estoppel, but one arising out of the conduct of the party who originally owned the land and platted it for the purpose of selling the lots, and is predicated upon the idea of bad faith in him, or those claiming under him, with knowledge of the facts, or with notice thereof, either express or constructive, to repudiate his implied representation that the streets and alleys, parks and places, will be kept open and unobstructed for the use of those who may buy from him. So far as the owner is concerned, it would be fraudulent for him to contest the right of his grantees, but as to those who have bought without notice, actual or constructive, of the facts, and the equitable estoppel fastened upon him, the estoppel grounded, as we have said, in an equitable principle, completely fails. The same general principle of equity that raises the estoppel will protect him, as an innocent purchaser, from its operation; and this is but just and right. But we are not without direct authority upon this point, although the proposition seems to be somewhat new, or rather cases presenting it are rare, but it is, at last, but the application of a conceded rule of equity to the special facts of the case. One buys property of another without notice that some third person has a right to or interest in such property, and pays a full and fair price for the same at the time of such purchase or before he has notice of the claim or interest of such other in the property (5 Cyc., 719), takes the same free from the right of the other, because he is regarded as an innocent purchaser and entitled to the equitable consideration of the court. It is a perfectly just rule, and it would be strange if the law were otherwise.

*32It is said in 13 Oye., pp. 492, 493, that, with the exception of bona fide purchasers without notice, all parties holding under a dedicator take only his title. “The general rules as to the title taken by bona fide purchasers without notice apply where the encumbrance is a dedication to the public use. Usually the state of the property or the records constitute notice by which the purchaser is bound, whether his knowledge of the easement be actual or not.”

The question was directly raised in Schuchman v. Borough of Homestead, 111 Pa. St., 48, and, after stating that a bona fide purchaser without notice is unaffected by notice to his vendor Bond v. Stroup, 3 Binn., 66), and, therefore, if the defendants in that case purchased the land without notice, even if Phillips, their immediate vendor, had been notified of the dedication before his purchase, their title would be good, it was there said by the Court: “It is reasonably certain that the Homestead Bank and Life Insurance Company dedicated the land to the public, and that a number of persons purchased lots'expecting to enjoy the resulting advantage. However, nothing in the plan, or in. the course of title, or on the ground, was a warning to Ormsby Phillips of such dedication, and therefore he acquired a good title. The citizens of the borough suffer serious loss under the operation of a rule which applies to them as it would to an individual under similar circumstances.” So in Harbor v. Smith, 85 Md., 538, the Court asserted the same principle as applying to cases of dedication, saying: “It may be conceded that if there were any owners of lots who purchased under such circumstances and without notice of the contract or the agreement between the Patapsco and Brooklyn companies, they would have a standing in a court of equity.” We think the samé doctrine was impliedly recognized by this Court in Collins v. Land Co., 128 N. C., at marg. p. 563 (Anno. Ed.).

In this case there is no reference in the deeds, as set out in the record, to the map of Bullock, and no deed in defendant’s chain of title referring to the map. The testimony given by defendant’s witnesses, a part of which we have recited, tends to show that there was nothing “on the ground” to warn Miller or Roper, his vendor, of any dedication. It is true, there was testimony to the contrary, but the court submitted the seventh *33issue to tbe jury, and, upon a presumably fair consideration of tbe evidence, they answered it in favor of defendants. Tbe court let that issue stand and gave judgment oh tbe entire verdict. Plaintiff did not ask that it be set aside as to tbe seventh issue, wbicb application, if made, would bave been addressed to tbe discretion of tbe court. There is no exception upon wbicb tbe verdict as to that issue can now be assailed, and there could not well be, as plaintiff did not appeal, but defendants did. Tbe court simply disregarded the legal effect of tbe seventh issue, and we presume for tbe reason that be did not think it prevented a recovery by tbe plaintiff, or, in other words, that tbe doctrine of bona, fide purchaser without notice did not apply to tbe case. Even if tbe judge thought there was constructive or legal notice to defendant of tbe dedication — wbicb there was not, as we have shown — be should bave set aside tbe verdict upon that ground, so that defendant could review bis ruling. As tbe issue and answer thereto were permitted to remain a part of tbe verdict, we cannot go behind it to inquire whether there was actual or constructive notice, as we give judgment not upon evidence, but upon tbe findings of fact, or tbe verdict of tbe jury. If tbe court was of opinion that there was no evidence to support tbe finding upon tbe seventh issue, or that it was against tbe weight of tbe evidence, tbe remedy was to set it, or tbe entire verdict, aside. In tbe absence of such a course of procedure, we cannot ignore tbe finding, nor could tbe judge, but must accept it as true and correct. There was strong and (if believed by tbe jury, wbicb seems to bave been tbe case) convincing proof to sustain their finding upon that issue.

Tbe plan or map made by Tripp, tbe surveyor, for Dr. Bullock, was never attached to any of the deeds. It may be a fact that lots were sold to plaintiffs, except tbe town, and to others, with reference to tbe plan, but tbe evidence shows that it was never made public, but was found by J. P. -Clark, plaintiffs’ witness, among tbe papers of bis father when tbe latter died. Looking at tbe whole case, we find that there was evidence for tbe jury under instructions from tbe court, by wbicb they were warranted in finding that there was “nothing in tbe plan, or in tbe course of (defendant’s) title, or on tbe ground” to notify *34Miller or Roper of any dedication of land west of Pamlico Street for another street, to be called Pungo, and, therefore, if in fact there was such a dedication, he purchased bona fide and without notice of it. Schuchman v. Borough of Homestead, supra. The deeds are not set out in the record, but only extracts therefrom showing the description. Some of them call for Pungo Street as the boundary of the lots conveyed thereby, but there is nothing in them to indicate where it is on the map, as the latter is not referred to. If they had referred to the map and it delineated the street, or if the jury had found that there were physical marks on the ground, of such a nature that defendant must have known of the dedication, a different question would be presented, as a purchaser is bound tó take notice of an apparent easement, servitude, or dedication for a street or other way, and if he fails to do so, he buys at his peril and takes his title subject thereto. But all this, as we have said, was for the jury to consider before the verdict was returned, and under proper instructions from the court. The verdict only finds that Bullock owned the land covering the locus in quo; that he caused it to be surveyed and platted into lots and streets and sold lots with reference to the plat, and that on the map what is known as Pungo Street is designated as extending from Pamlico to Allen streets, and that defendant A. Miller has obstructed it, but that he purchased his lot without any notice of the dedication of the street. But there is no evidence that he ever saw the map or heard of it, and the mere fact that Bullock conveyed according to a hidden or concealed map and without reference thereto in his deeds, as far as appears, is certainly not legal notice to Miller of the dedication and location of the street. So that the important fact is omitted from the verdict, that Bullock, in contemplation of law, conveyed by the map, that is, by referring to it, and there is absolutely no evidence that Miller or Roper actually knew of the map or had ever heard of it. If there was, the jury were not influenced by it in making up their verdict, and it is for them to say what the facts are. In truth, they seemed to have repudiated the plaintiff’s testimony as to there being any street known as Pungo, west of Pamlico, and to have accepted what defendants’ witnesses testi-*35fled in regard to that matter, viz., that the land was swampy and subject to the ebb and flow of the tide.

Upon the verdict and the whole case, the court, in our opinion, should have given judgment for the defendants, and erred in entering judgment for the plaintiffs upon the verdict. This reverses the judgment, and the court below will enter judgment for the defendants accordingly.

We have not considered the other serious questions as to the right of plaintiffs to an injunction, as we have not found it essential to do so. It may be that a municipal corporation, like the town of Belhaven, is entitled to have an obstruction in its streets removed, and for that purpose to have a mandatory injunction in a proper case. It has been held that it can bring ejectment, where a street, or a part thereof, is illegally withheld, and some courts hold that an injunction will lie as the more speedy and convenient remedy. We will decide those questions when properly and necessarily presented to us. If the town of Belhaven requires the land of the defendant Miller for public use as a street, it may be acquired by condemnation.

Eeversed.