86 S.E. 344 | N.C. | 1915
This is an action of trespass for unlawfully entering upon and occupying certain land in Elizabeth City under the wrongful claim that it is a public street or alley, and without having taken proper proceedings to condemn the same and acquire the same or an easement therein. Plaintiffs alleged in their complaints, filed in separate actions, that they are the owners of two lots, the plaintiff Sexton of lot No. 954, as designated on a map recorded in Book 21, p. 583, of the registry of said county, and the other plaintiff of lot No. 975 as shown on the same map, and that defendant had unlawfully trespassed thereon. *453
The defendant having answered and denied the trespass, and issue having been joined between the parties, it was stipulated that the two actions should be consolidated and heard together by the presiding judge on an agreed statement of facts, reserving the question of damages for trial by a jury.
The following is the statement of facts agreed upon:
"Pending the trial of these two actions, it is by consent of all parties to the same agreed that the two may be consolidated for the purpose of trial, and the following admissions of facts are agreed to by all parties in both cases. The question of damages, as to each plaintiff, is reserved for the jury.
"1. On or about 23 December, 1891, the Improvement Company of Elizabeth City became the owner and went into possession of all that tract of land in the present corporate limits of Elizabeth City bounded and described in a deed from C. W. Grandy, special commissioner, to said improvement company, which was duly recorded in Book 12, page 219, on 23 December, 1891, and made a part of this agreed statement of facts. Since the making of that deed and prior to the institution of this suit in 1905, (387) the lands described in the deed have been taken into the corporate limits of Elizabeth City by act of the General Assembly.
"2. The description in said deed includes the land in controversy in this case, and which is now claimed by the corporation of Elizabeth City as a street or alley, which strip of land is 10 feet wide and runs from Cotter Street along the east side of the Norfolk Southern Railroad Company's right of way to Main Street in Elizabeth City.
"3. On the day of the date of the deed from Grandy, commissioner, the said improvement company had W. G. Underwood, surveyor, to make and caused to be recorded on 1 March, 1892, the plat which is registered in Book 12, page 299, and made a part of this agreed statement of facts.
"4. Thereafter the said improvement company offered for sale and sold 38 lots and gave deeds for the same, referring to the plat in Book 12, page 299.
"5. None of the lots so sold abutted on said street or alley in controversy, and there was no reference in any of the said deeds to the land now claimed as a street or an alley.
"6. Thereafter the improvement company caused to be made, and registered on 28 April, 1900, in Book 21, page 583, a second plat of that part of this property conveyed by Grandy, commissioner, which lies north of what is known and designated on both plats as Oak Street, and also made a part of this agreed statement of facts, which did not show *454 the alley or street in controversy, but extended the boundaries of each of the lots to the railroad right of way.
"7. On 1 February, 1908, the plaintiff George H. Sexton purchased of M. N. Sawyer and wife, in consideration of $150, the lot designated as No. 954 on the plat which is recorded in Book 21, page 583, under a deed which is registered in Book 31, page 639, and which deed is also made a part of these findings and admissions of fact.
"8. On 27 December, 1910, the plaintiff W. P. Duff purchased of R. L. Forbes, for a valuable consideration, the lot No. 975 on the plat, recorded in Book 21, page 582, under a deed which is registered in Book 35, page 6, and made a part of this statement of facts.
"9. M. N. Sawyer acquired the lot he conveyed to Sexton from W. T. Stafford by deed recorded in Book 22, page 280, and Stafford purchased the same lot from the improvement company by deed dated 8 August, 1900, recorded in Book 22, page 279, which deeds and their recitals are made a part of this statement of facts.
"10. Plaintiff W. P. Duff's grantor, R. L. Forbes, purchased the lot claimed by him from the improvement company under deed dated 8 March, 1901, and recorded in Book 23, page 138, which deed and its recitals is made a part of this statement of facts.
(388) "11. There is no reference in either of the deeds in plaintiff Sexton's chain of title or plaintiff Duff's chain of title in the first plat above referred to, but reference is only made to the second recorded plat.
"12. At the time of making the Underwood plat there was no mark or other evidence of said street or alley in controversy on the ground, nor was any physical designation of said street or alley made on (389) the said premises at any time subsequent thereto until the corporation, defendant, took possession of said street shortly after the institution of these actions as hereinafter set forth.
"13. No work of any character had been done upon said street or alley to distinguish it as such or to indicate an acceptance of same by the corporation, defendant, until the taking possession of the same just before the institution of these actions as hereinafter referred to, but that the said street or alley has been up to this time continuously in the actual possession and use of plaintiffs and their grantors from the date of the improvement company's deed.
"14. There is nothing on the ground or in the course of either plaintiff's chain of title to notify said plaintiffs of the existence of said street or alley in controversy, and that neither plaintiff George H. Sexton nor plaintiff W. P. Duff had notice at the time of his purchase, nor did their grantors, other than the improvement company, have notice of the *455 existence of said street or alley except only such notice as may be implied in law from the registration of the first plat.
"15. Just prior to the institution of these two actions, towit, on 23 July, 1913, the corporation of Elizabeth City, and the other defendants
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
acting as its agents, went upon and took possession of the part of plaintiff Duff's and plaintiff Sexton's lots, 10 feet wide and running across each of the same, which is claimed by the said town as having been dedicated to the public, and appears upon the first plat above referred to.
"16. It is agreed that the court shall submit an issue as to the damages of the plaintiff Sexton and of the plaintiff Duff, and on the rendition of the jury's verdict on these two issues it is further agreed that if the court, as a matter of law upon the foregoing agreed statement of facts shall be of the opinion that the plaintiffs are entitled to recover, it shall render judgment in favor of each of them for the amount stated in the jury's verdict; but if the court shall be of the opinion, upon the foregoing statement of facts, that as a matter of law the defendants are entitled to recover, then the court shall render judgment in favor of the defendants."
The jury assessed the damages at $75 in each case, and the court, being of the opinion that upon the facts the plaintiffs were entitled to recover, entered judgment for the amount of the verdict in favor of the respective parties. The defendants then excepted and appealed.
After stating the case: We may say, generally, that the right to the easement in a public highway may be acquired by grant or (390) dedication; by the exercise of the power of eminent domain, or by user for the requisite length of time. Kennedy v. Williams,
In Smith v. Goldsboro,
One who 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, 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.
It is said in 13 Cyc., at pp. 492, 493, that, with the exception of bonafide purchasers for value and without notice, all parties holding under a dedicator take only his title. "The general rule as to the title taken by abona fide purchaser without notice applies 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." 13 Cyc., supra.
The doctrine, as directly applicable to this case, is well stated inSchuchman v. Borough of Homestead, 111 Pa. St., 48: "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 the 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." And inHarboro v. Smith,
This same rule, we think, was impliedly recognized by this (393) Court in Collins v. Land Co.,
It may be well to remark that in all of the cases decided by this Court the subsequent purchaser, claiming the land occupied by a street or alley, as against a vendee from the original owner who bought according to the map, appears to have had either actual or constructive notice of the latter's rights and easements in the abutting and adjacent streets and alleys.
Applying these principles to the facts of our case, we find that the case agreed (section 4, 5, 11, 12, 13, and 14) is very full and explicit in stating that plaintiffs had no actual knowledge of the dedication of the alley by the improvement company, and there was nothing on the ground to indicate that it had been set apart as an alley for the use of the public or the owners of the thirty-eight lots theretofore purchased from said company, nor was there any constructive notice, as the deeds for the thirty-eight lots were not registered, so far as appears. The registration of the map was not constructive notice, as it is not such a paper as is required or allowed to be registered by our law. On the contrary, the plaintiffs bought their lots by another map, which was made by the improvement company long after 1 March, 1892, when the first map was registered, that is, in April, 1900, and their deeds referred to this map, which did not show the alley, but, on the contrary, made the line of the railway's right of way the boundary of the improved property on that side, and in the description of these lots the railway was called for as one of these lines. Instead of having any notice of the alley being there, they were actually and positively led to believe that there had been no such dedication, and they acted upon the representation thus made to them, in good faith, and paid full value for the lots. As the registration of the first map was not constructive to them, and they had no actual notice of it, they occupy a most favorable position before the court, and are entitled to the protection of the principle which we have said has been settled by the authorities. Besides, as they had no actual notice, our statute which requires the registration of deeds as to bona fide purchasers for value, in order to pass the title, Revisal, sec. 980 (Acts of 1885, ch. 147), protects them against the application of the ordinary doctrine (394) of estoppel relating to such cases. The policy of our law now is that purchasers for value should be protected as against unregistered conveyances of the same property from the vendor, as nothing but registration shall be considered notice to them of any prior deed for the land, it having grown into an axiom that "No notice, however full and formal, will supply the place of registration." Todd v. Outlaw,
As the plaintiffs had no actual or constructive notice of the dedication of the alley, they are not bound by the map, and in unlawfully entering on the property which was theirs, the defendant committed a trespass. Green v.Miller, supra.
There was, therefore, no error in the judgment upon the case agreed.
Affirmed.
Cited: Elizabeth City v. Commander,