No. 703DC377 | N.C. Ct. App. | Aug 5, 1970
Did the trial court err in granting defendants’ motion for judgment as of involuntary nonsuit (this action being tried prior to 1 January 1970) ? Considering the evidence and the admissions in the pleadings in the light most favorable to plaintiffs, we hold that it did.
We hold that plaintiffs’ exhibit No. 1, although poorly drafted, if proven over defendants’ denial is sufficient as a deed creating a twenty-foot easement extending from U. S. Highway No. 70 to the A. & E. C. Railroad and adjacent to the eastern line of the land originally owned by Ernul. In Hine v. Blumenthal, 239 N.C. 537" court="N.C." date_filed="1954-03-03" href="https://app.midpage.ai/document/hine-v-blumenthal-1310120?utm_source=webapp" opinion_id="1310120">239 N.C. 537, 80 S.E. 2d 458, our Supreme Court, as stated in the ninth headnote of the opinion, held:
“The conveyance of an easement will be construed to effectuate the intent of the parties as expressed in the instrument, and if the language is ambiguous the court will give it an interpretation which will effect a rational purpose and not one which will produce an unusual and unjust result.”
But, defendants contend that an offer of dedication of land to the public must be followed by an acceptance on its part in some recognized legal manner and cite Wright v. Lake Waccamaw, 200 N.C. 616" court="N.C." date_filed="1931-04-15" href="https://app.midpage.ai/document/wright-v-town-of-lake-waccamaw-3678116?utm_source=webapp" opinion_id="3678116">200 N.C. 616, 158 S.E. 99. We recognize that principle and do not hold that the public generally has any rights in the twenty foot right-of-way, but we do hold that the owners of the three parcels of land involved in this action and their respective successors in title have the right to use said right-of-way as a means of ingress and egress to and from their properties.
Our search has failed to reveal a court decision directly in point but we think the following language in Hine v. Blumenthal, supra, is analogous:
“In this jurisdiction it is well settled that when land is subdivided into lots and a map is made thereof, showing streets and alleys, and lots are sold with reference to such map, the owner of the subdivision thereby dedicates the streets and alleys to the use of those who purchase the lots;*224 and it makes no difference whether the streets and alleys be in fact opened or accepted by the governing- board of the town or city in which the property lies. Lee v. Walker, 234 N.C. 687" court="N.C." date_filed="1952-02-01" href="https://app.midpage.ai/document/lee-v-walker-1390607?utm_source=webapp" opinion_id="1390607">234 N.C. 687, 68 S.E. 2d 664; Russell v. Coggin, 232 N.C. 674" court="N.C." date_filed="1950-11-22" href="https://app.midpage.ai/document/russell-v-coggin-1158772?utm_source=webapp" opinion_id="1158772">232 N.C. 674, 62 S.E. 2d 70 * *."
Easements may be acquired by grant, dedication, or prescription. Green v. Barbee, 238 N.C. 77, 76 S.E. 2d 307, 46 A.L.R. 2d 455. It would appear that if the owners of lots in a subdivision under the conditions above quoted acquire by dedication the right to use streets and alleys then plaintiffs herein, by virtue of their exhibit No. 1, would acquire by grant the right to use the twenty-foot right-of-way in question.
We note that defendants deny the execution of plaintiffs’ exhibit No. 1 and, of course, they are entitled to have that question properly passed upon.
For the reasons stated, the judgment appealed from is
Reversed.