No. COA94-1246 | N.C. Ct. App. | Mar 5, 1996
Defendant argues that the trial court erred by granting partial summary judgment because defendant or his predecessors in title had adversely possessed and occupied the twenty foot strip for more than the required twenty years and, accordingly, defendant was the sole owner of the twenty foot strip. Plaintiffs argue that G.S. 136-96 controls. G.S. 136-96 provides in pertinent part:
Every strip, piece, or parcel of land which shall have been at any time dedicated to public use as a road, highway, street, avenue, or for any other purpose whatsoever, by a deed, grant, map, plat, or other means, which shall not have been actually opened and used by the public within 15 years from and after the dedication thereof, shall be thereby conclusively presumed to have been abandoned by the public for the purposes for which*765 same shall have been dedicated; and no person shall have any right, or cause of action thereafter, to enforce any public or private easement therein, . . . provided, that no abandonment of any such public or private right or easement shall be presumed until the dedicator or some one or more of those claiming under him shall file and cause to be recorded in the register’s office of the county where such land lies a declaration withdrawing such strip, piece or parcel of land from the public or private use to which it shall have theretofore been dedicated in the manner aforesaid; . . . that where any corporation has dedicated any strip, piece or parcel of land in the manner herein set out, and said dedicating corporations [sic] is not now in existence, it shall be conclusively presumed that the said corporation has no further right, title or interest in said strip, piece, or parcel of land, regardless of the provisions of conveyances from said corporation, or those holding under said corporation, retaining title and interest in said strip, piece, or parcel of land so dedicated; the right, title and interest in said strip, piece, or parcel of land shall be conclusively presumed to be vested in those persons, firms or corporations owning lots or parcels of land adjacent thereto, subject to the provisions set out herein before in this section.
Because Nags Head Development Corporation, the corporation that dedicated the twenty foot strip by filing a map of the property with Dare County, has ceased to exist, plaintiffs contend that a conclusive presumption was established pursuant to G.S. 136-96 that plaintiffs and defendant, as adjacent land owners to the twenty foot strip, were both owners of the disputed property.
The theory behind a conclusive presumption is that “[w]hen the basic fact is established (by evidence, judicial notice, or judicial admission), existence of the presumed or elemental fact is deemed to be conclusively demonstrated, and evidence of its nonexistence will not be received.” Kenneth S. Broun, Brandis & Broun on North Carolina Evidence §44 (4th ed. 1993). Here, for the conclusive presumption to arise, there must be proof that Nags Head Development Corporation had dedicated the twenty foot strip for public use and the corporation did not exist at the time of the 1987 declarations of withdrawal.
Defendant does not argue in his brief that Nags Head Development Corporation never dedicated the twenty foot strip. In
Although G.S. 136-96 provides that the presumption is conclusive, defendant still argues that the statute does not defeat a claim of adverse possession. Defendant cites several cases to support his position: Roberts v. Cameron, 245 N.C. 373" court="N.C." date_filed="1957-01-11" href="https://app.midpage.ai/document/roberts-v-town-of-cameron-1379979?utm_source=webapp" opinion_id="1379979">245 N.C. 373, 95 S.E.2d 899 (1957); 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 (1952); Gault v. Lake Waccamaw, 200 N.C. 593" court="N.C." date_filed="1931-04-08" href="https://app.midpage.ai/document/gault-v--lake-waccamaw-3667440?utm_source=webapp" opinion_id="3667440">200 N.C. 593, 158 S.E. 104 (1931); and Investment Co. v. Greene, 48 N.C. App. 29" court="N.C. Ct. App." date_filed="1980-08-05" href="https://app.midpage.ai/document/general-greene-investment-co-v-greene-8903496?utm_source=webapp" opinion_id="8903496">48 N.C. App. 29, 268 S.E.2d 810, disc. review denied, 301 N.C. 235, 283 S.E.2d 132 (1980). These cases provide that where a strip of land has been dedicated for public use, a person may gain ownership of the strip if the person adversely possesses the strip for the requisite twenty year period before the strip is accepted for dedication or adversely possesses the strip for twenty years after the strip has been abandoned for public use. However, none of these cases involve the interaction between G.S. 136-96 and adverse possession and we have found no cases that directly address this issue.
After carefully considering the parties’ arguments, we conclude that we are bound by the conclusive presumption language of G.S. 136-96 and that defendant is bound by his predecessor’s actions. By filing the declaration of withdrawal, the Lancasters lost whatever sole rights to the twenty foot strip they may have had and became joint owners with plaintiffs. Accordingly, we conclude that the trial court did not err in granting partial summary judgment in favor of plaintiffs.
Affirmed.