Wright v. Town of Lake Waccamaw, 200 N.C. 616 (1931)

April 15, 1931 · Supreme Court of North Carolina
200 N.C. 616


(Filed 15 April, 1931.)

1. Eminent Domain D a — In order for town to condemn land it is required that proceedings he instituted by proper officials before tribunal.

In order for a municipality to establish a street or highway by condemnation it is required that condemnation proceedings be instituted by the properly constituted authorities in a proceeding regularly instituted before the proper tribunal, and an official map adopted showing “streets, parks and commons” platted thereon is not sufficient.

2. Adverse Possession D b — City must show adverse use of land for street for twenty years in order to acquire title by i>resumption 0f grant.

In order for a municipality to establish the right to maintain a street on privately owned lands where an original grant from the owner has not been shown, it must show its exclusive and adverse use and control thereof for that purpose for a period of twenty years in order for an original grant by the owner or a dedication by him to be presumed, and although such adverse use may be inferred from the occupation itself when sufficient to permit the inference that the public had assumed control and was using the land adversely and as a matter of right, in this case evidence of such adverse user is held insufficient to be submitted to the jury, and a directed verdict in the owner’s favor was not error.

3. Dedication A b — Offer of dedication must be accepted by municipality.

An offer of dedication of land to the public must be followed by an acceptance on its part in some recognized legal manner.

Appeal by defendant from Daniels, J., at November Term, 1930, of Columbus.

Action to remove an alleged cloud on title. Tbe plaintiff owns nine acres of land on tbe north shore of Lake Waccamaw. In December, 1928, tbe defendant adopted a map purporting to show tbe location of its streets, squares, and public commons. Tbe plaintiff alleged that tbe defendant, contrary to tbe rights and powers conferred by its charter, thereby attempted to take from him a strip of land thirty feet in width, including a part of bis driveway and yard, although the defendant is prohibited by its charter from taking property without com-, pensation, and that the official map constitutes a cloud upon the plaintiff’s title.

The defendant denied the material allegations of the plaintiff and alleged that said squares and public commons have been used by the defendant ever since its incorporation by prescription as a matter of right; and that the streets west and in front of the plaintiff’s house have been used by the public adversely under known and visible lines and boundaries as a matter of right for more than twenty years.

*617Tbe following Verdict was returned:

1. Is tbe plaintiff tbe owner, and in possession, of tbe lands described in deed from J. P. Council and J. A. Council to tbe plaintiff, registered in Book A-l, at page 147? Answer: Yes.

2. If so, is tbe defendant town entitled to use that portion of said lands that is covered by tbe street on tbe 1928 map of tbe defendant and designated "WTigbt Avenue? Answer: No.

Tbe jury was instructed as follows: If you believe tbe evidence in tbis case, or, in other words, if you find tbe facts as testified by tbe witnesses and as sbo-wn by tbe evidence, you will answer tbe first issue Yes and the second issue No.

Judgment accordingly, and appeal by defendant.

Varser, Laivrmce <& McIntyre for plaintiff.

R. M. Toon and McLean & Stacy for defendant.

Adams, J.

A street or highway may be established by prescription, dedication, or condemnation. “According to tbe current decisions of tbis Court, there can be no public highway, unless it be one either established by tbe public authorities in a proceeding regularly constituted before tbe proper tribunal, or one generally used by tbe public over which tbe proper authorities have exerted control for tbe period of twenty years, or one dedicated to tbe public by the owner of tbe soil with tbe sanction of tbe authorities, and for the maintenance and reparation of which they are responsible.” Kennedy v. Williams, 87 N. C., 6. This position finds support, not only in the cases cited in the opinion, but in subsequent decisions of the Court.

There is no evidence that the defendant appropriated the plaintiff’s property under the law of eminent ddmain. The adoption of an official map did not serve the purpose of condemnation. The question is whether the defendant acquired an easement by prescription or dedication. There is no proof that tbe plaintiff has ever executed a grant for an easement. Tbe defendant’s principal contention is that tbe'town acquired an easement by adverse use of tbe streets, squares, and commons.

In Boyden v. Achenback, 79 N. C., 539, it is said that where tbe public has used a way as a public road, and tbe road has been worked and kept in order by “an overseer and hands” for more than twenty years, it will be presumed that the owner dedicated it to the public. This case is cited in Kennedy v. Williams, supra. But in the later case of Haggard v. Mitchell, 180 N. C., 255, the.Court said this: “In this last case, however (Kennedy v\ Williams), the road in question had only been open and used 'for about six years, and while the case is undoubtedly well decided, this reference to a working by an overseer and *618bands is only by way of suggestion on tbe part of tbe able and learned judge wbo wrote tbe opinion, and it was by no means tbe effect and intention of tbat decision to bold tbat in order to establish a public way by user, there must be direct proof of formal recognition by tbe public authorities having charge of tbe matter, but such recognition and other essentials could be inferred from tbe occupation itself, when sufficiently general and of an extent and character as to permit tbe inference as stated tbat tbe public bad assumed control, and were exercising it adversely and as of right. Accordingly, in tbe subsequent case of S. v. Eastman, 109 N. C., 785, indictment for nuisance in obstructing a public square, it was expressly decided tbat a public square was in effect a part of tbe public highway; tbat tbe appointment of an overseer and bands was not an essential, and in this and several of tbe other authorities cited, it is fully recognized tbat tbe existence of a highway can be established by other facts showing adverse user on tbe part of tbe public.”

In case of a direct dedication of land to tbe public use there sboulid ordinarily be some evidence of acceptance; for as declared in S. v. Fisher, 117 N. C., 733, 739, “Tbe owner of land cannot, by executing a deed to tbe public conveying a right of way to a highway, compel tbe authorities to assume tbe burden of repairing it unless tbe properly constituted agents of tbe county or town accept it.” But where dedication is relied upon as implied from adverse user or where adverse user is invoked under tbe doctrine of prescription there must be evidence not only tbat tbe way was used for tbe requisite period, but tbat tbe user was adverse. Haggard v. Mitchell, supra; Draper v. Conner, 187 N. C., 18; Weaver v. Pitts, 191 N. C., 747. Tbe burden of showing adverse user is upon tbe person who asserts it. S. v. Fisher, supra.

An examination of tbe record leads us to tbe conclusion tbat there is not sufficient evidence of tbe adverse use by tbe public of tbe property in question to justify a finding to this effect, and tbat there is no error in tbe instruction given tbe jury.

No error.