Steadman v. Town of Pinetops
112 S.E.2d 102
N.C.
1960
Check Treatment
DeNNY, J.

None of the evidence offered and admitted in the hearing below is brought forward and made a part of the record on this appeal.

Evidence adduced in a hearing below and not included in the case on appeal, or if included and there is no exception to the admission of such evidence or to the findings of fact based thereon, such • findings are presumed to be supported by competent evidence and are *515 binding on ‘appeal. Salisbury v. Barnhardt, 249 N.C. 549, 107 S.E. 2d 297; Raleigh v. Morand, 247 N.C. 363, 100 S.E. 2d 870; Goldsboro v. Railroad, 246 N.C. 101, 97 S.E. 2d 486; James v. Pretlow, 242 N.C. 102, 86 S.E. 2d 759; Beaver v. Paint Co., 240 N.C. 328, 82 S.E. 2d 113.

The appellants contend that the facts found by the court below as set out hereinabove in paragraphs 2, 3, 6, 10, 11, 12, 14 and¡ 16, do not support the conclusion that the receiver is vested with title to all property rights of The Macclesfield Company ‘and, therefore, the plaintiffs are not authorized under the provisions of G.S. 136-96 to withdraw the streets in question from dedication to public use, • and they assign this conclusion of law as error.

-The general rule in this jurisdiction with respect to the dedication of streets and alleys shown on a map or plat of a subdivision was clearly stated in Hughes v. Clark, 134 N.C. 457, 47 S.E. 462, as follows: * * where lots are sold and conveyed by reference to a map or plat which represent a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to the public use, and the purchaser of a lot or lots acquires the right to have all and each of the- streets kept open; and it makes no difference whether the streets be in fact 'opened or accepted by the governing boards of towns or cities if they lie within municipal corporations. There is a dedication, and if they are not actually opened at the time of the sale they must be at all times free to be opened as occasion may require.” Gaither v. Hospital, 235 N.C. 431, 70 S.E. 2d 680; Rowe v. Durham, 235 N.C. 158, 69 S.E. 2d 171; Lee v. Walker, 234 N.C. 687, 68 S.E. 2d, 664; Broocks v. Muirhead, 223 N.C. 227, 25 S.E. 2d 889; Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E. 2d 13; Wheeler v. Construction Co., 170 N.C. 427, 87 S.E. 221; Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282.

It should be kept in mind, however, that the dedication referred to in the rule aibove stated, insofar as the general public is concerned, without reference to any claim or equity of the purchasers of lots in a subdivision, is but a revocable offer and is not complete until accepted, and neither burdens nor benefits with attendant duties may be imposed on the public unless in some proper way -it has consented to assume them. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18. Likewise, a town has the right to determine where its streets shall be located ias well as the right to accept or reject any offer of dedication. Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695; Lee v. Walker, supra.

However,' where a municipality opens, improves and maintains a street dedicated to the public by the registration of a map or plat *516 showing such street, there is an acceptance of the dedication of the street 'by the municipality. Moreover, where the dedication of a street has become complete by the acceptance thereof by a municipality, and the street is opened and maintained by the municipality and Used by the public, the right to revoke 'the dedication is gone, except 'frith the consent of the municipality acting in 'behalf of the public and the consent of those persons, firms or corporations having vested rights in the dedication. Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E. 2d 898. See also Salisbury v. Barnhardt, supra. But where streets are dedicated to the public by the registration of a plat showing streets and alleys thereon, and such streets or alleys are not opened or used by the public for a period of fifteen yeans from and after the registration of such map or plat, the dedication of such streets and alleys become subject to withdrawal under the provisions of G.S. 136-96, and this is so even though such unopened streets or alleys lie within the limits of a municipality.

It is provided in Chapter 174 of the Public Laws of 1921, as amended, and now codified as G.S. 136-96, that, “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 fifteen (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 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 corporation 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 corp *517 orations owning lots or parcels of land ¡adjacent thereto, subject to the ¡provisions set out hereinbefore in this section.

“The provisions ¡of this section shall have no application in any ease where the continued use of any strip of land dedicated for street or highway purposes shall be necessary to afford convenient ingress or egress to any lot or parcel of land sold and conveyed by the dedicator of such street or ¡highway. * * *”

In our opinion, the charter of The Macclesfield Company expired by its own limitation on 21 June 1929, and the corporation ceased to exist ¡at that time within the meaning of the provisions of G.S. 136-96.

In the case of Asheville Division v. Aston, 92 N.C. 578, this Court said: “It is unquestionably true that a ¡corporation, whose term of existence is fixed and limited in the act which creates it, cannot endure beyond the prescribed time, unless prolonged ¡by the same authority or continued for the purpose of adjusting land closing ¡its ¡business, ¡and no judicial proceedings ¡are required to terminate it. The expiration of the time ends the life given to the artificial body, ¡as death terminates the life ¡of the natural person.” The Court further said: “The operation and effect of this legislation (the appointment of trustees or a receiver) in securing a just ¡and proper administration of the effects and estate of a defunct corporation through ¡an agency ¡appointed by the court, and whose functions are ¡analogous to those of an administrator upon the estate of a natural person deceased, have been so fully discussed in VonGlahn v. DeRosset, 81 N.C. 467, that we forbear to pursue this branch of the subject further.”

It was declared in VonGlahn v. DeRosset, cited above, that the existence of the corporation involved, “as a corporate body expired by the limitation contained in the charter and amendment on 31 December, 1871.”

In light of the. provisions of G.S. 136-96 with respect to the dedication of streets made by a corporation which is not now in existence, the ¡appointment of a receiver to ¡wind up the affairs of such corporation ¡after its corporate existence has expired, militates in no way against these plaintiffs with respect to their right to withdraw the dedication of the unopened streets described in ¡their certificate of Withdrawal of Dedication and duly registered as required by law.

The withdrawal ¡statute expressly provides, " * * * that where any corporation has dedicated any strip, piece or parcel of land in the manner herein set out, ¡and said dedicating corporation 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 corpora *518 tion, oi* those holding under said corporation, retaining title and interest in said strip, piece or parcel of land so dedicated; ithe 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 hereinbefore in this section.”

It will be noted that the court below found as a fact in paragraph 6 set out .herein that Burnett Street was opened by the Town of Pinetops between 6th and 10,th Streets about 1936 and was used by the public, principally for walking for a period of two or three years; that the other streets referred to in plaintiffs’ Withdrawal of Dedication have not been opened 'and maintained for pedestrian or vehicular traffic. Consequently, we hold that the plaintiffs had the right under the express provisions of G.S. 136-96 to withdraw from dedication all the streets described in their certificate of Withdrawal of Dedication, except Burnett Street. Such streets, except Burnett Street, not having been “actually opened and used by the public within fifteen (15) years from and after the dedication thereof, shall be thereby conclusively presumed to have been abandoned * * G.S. 136-96.

It must be conceded .that the streets shown on the map of the subdivision'of The Macclesfield Company when such map was recorded and lot® were sold by reference thereto, insofar as the grantor was concerned became dedicated for public use, and the purchaser of a lot or lots therein had the right to have all and each of the streets kept open. There was a dedication by The Macclesfield Company of the streets shown on the map of the subdivision which the Town of Pinetops had .the right to accept at any future time, it matters not how long, unless in the meantime title thereto became vested in a third party by adverse possession or until the dedication was withdrawn in accordance with the provisions of G.S. 136-96. Roberts v. Cameron, 245 N.C. 373, 95 S.E. 2d 899.

This assignment of error is upheld except 'as to Burnett Street.

In view of the conclusion we have reached with respect to the streets that have never been opened for any purpose, it is not necessary to determine whether or not the Town of Pinetops did or did not 'accept the dedication thereof. However, when Burnett Street was opened by the defendant Town in 1936, the opening of the street and its use' for a period of two or three years constituted an acceptance of the dedication of said street. Hence, no statute of limitations thereafter ran against the Town of Pinetops with respect to said street.

In Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104, this Court said: “When there is a dedication and acceptance by the municipality or other governing body of public ways or squares and *519 commons in this jurisdiction the statute of limitations does not now run against the municipality or governing body. Public Laws 1891, oh. 224, C.S. 435 (now G.S. 1-45) * *

We further hold that, since the plaintiffs and their predecessor in title, B. A. Steadman, have always without objection permitted the removal of the pasture fence erected by B. A. Steadman and allowed the Town of Pinetops at any time to open 'and extendi streets into and through the property of these plaintiffs, as shown on the recorded map of the subdivision, whenever the Town needed to open any street or streets therein, until after the certificate of Withdrawal of Dedication was executed and filed of record on 7 February 1958, the claim of title to said 'Streets by adverse possession is without merit.

From 1935 until 1953, while the plaintiffs’ predecessor in title owned the blocks and lots described by block 'and lot number as set out in finding of fact in paragraph 2 hereinabove, the Town of Pinetops opened numerous blocks and streets as shown on the map of Pine-tops; 8 or 9 blocks of these streets have been opened by the Town of Pinetops since 1947, through the property of these plaintiffs, without any objection on their part or of their predecessor in title.

Moreover, under the facts found in paragraph 16 set out herein-above, to which there is no exception, we think the Town of Pine-tops has the right to reopen Burnett Street from a point 150 feet East of 4th Street to 10th Street, a distance of only 2% blocks, and we so hold. The withdrawal certificate purports only to withdraw from dedication Burnett Street from a point 150 feet East of 4th Street to 10th Street. The court below found, “ * * * that the opening of Burnett Street is necessary to afford convenient ingress 'and egress * * * to persons owning lots (to lots owned by persons) East of 10th Street and West of 6th Street as shown on Map of the Town of Pinetops.”

In the case of Evans v. Horne, 226 N.C. 581, 39 S.E. 2d 612, a subdivision was laid out and a plat thereof filed in the office of the Register of Deeds in Pitt County, North Carolina, in 1917. Albemarle Avenue, running generally North 'and South as shown on said map, was opened and maintained in front of a tier of lots that lay between that street and the right of way of the Atlantic Coast Line Railroad. Carolina Street, running in a generally East and. West direction as shown on the map, was opened up from Albemarle Avenue West. Carolina Street, as shown on the map, continued East of Albemarle Avenue a distance of about 132 feet to the railroad right of way. The plaintiffs owned two lots North of this unopened portion of Carolina Street, one of which was adjacent thereto on the North. The defendants owned a tier of lots to the South of this unopened portion of *520 Carolina Street, one of which was adjacent thereto on the South. All these lots fronted on Albemarle Avenue.

In 1944, the widow of the original grantor who laid out the subdivision, together with several other persons as heirs at law of the original grantor, acting under the provisions of G.S. 136-96, filed in the office of the Register of Deeds in Pitt County a declaration of withdrawal of that portion of Carolina Street which had never been opened. When the case came on for trial, the jury found on the first issue that the portion of Carolina Street which the defendants sought to withdraw from dedication had never been opened, but on the second issue, to wit: “Is the ’continued use of said strip of land: necessary to afford convenient ingress, egress and regress to the lot or parcel of land now owned by the plaintiffs as alleged?” the jury answered the issue “Yes.” Judgment was entered accordingly.

On appeal, this Court, speaking through Winborne, J., now C.J., said “ * * * the jury having found that the continued use of the strip of land in question is ‘necessary to afford convenient ingress, egress and regress to the lot or parcel of land now owned by the plaintiffs as alleged’ the provisions of the statute G.S. § 136-96 have no application, and the challenge to the ruling on the motions for judgment as of nonsuit on this ground may not be sustained.

“Moreover, in light of the holdings of this Court in the oases of Home Real Estate Loan & Ins. Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E. 2d 13, and Broocks v. Muirhead, 223 N.C. 227, 25 S.E. 2d 889, on the uncontroverted facts, plaintiffs would seem to- be entitled to the relief demanded as a matter of law.”

In light of the conclusions we have reachedi, it is unnecessary to discuss the remaining assignments of error.

The judgment entered 'below is modified to the extent set out herein, .and affirmed with respect to the right of the Town of Pinetops to reopen Burnett Street.

Modified and affirmed.

HiggiNS, J., took no part in the consideration or decision of this case.