Roberts v. Town of Cameron

95 S.E.2d 899 (1957)

245 N.C. 373

H. B. ROBERTS and wife, Ellie Jane Roberts, v. TOWN OF CAMERON, Hubert Nickens, Mayor of Town of Cameron and Individually, Mitchell West, Will McNeil, Mrs. W. G. Parker, R. L. Laubscher and J. A. Phillips, Jr., Members of the Board of Aldermen of the Town of Cameron and Individually.

No. 459.

Supreme Court of North Carolina.

January 11, 1957.

*901 T. J. McPherson, Sanford, H. F. Seawell, Jr., Carthage, Gavin, Jackson & Gavin, Sanford, for plaintiffs.

Orton J. Cameron and George M. McDermott, McDermott & Cameron, Sanford, for defendants.

DENNY, Justice.

Upon an appeal from an order dissolving a temporary restraining order, or from one continuing it to the final hearing, the findings of fact as well as the conclusions of law are reviewable by this Court. Deal v. Enon Sanitary District, 245 N.C. 74, 95 S.E.2d 362; Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452; Arey v. Lemons, 232 N.C. 531, 61 S.E.2d 596; Leaksville Woolen Mills v. Spray Water Power & Land Co., 183 N.C. 511, 112 S.E. 24.

Among the findings of fact, his Honor found, "That the public or Town of Cameron has never at any time taken any action to accept said offer of dedication of the portions of said streets in dispute until April 1956 (January 1956), forty-six years after the offer of dedication was made; * * *."

We do not understand that mere delay in accepting an offer of dedication of streets and alleys, in a subdivision which lies within a municipality, constitutes a bar to the acceptance of such offer unless in the meantime such streets and alleys have been occupied and used adversely for more than twenty years for purposes inconsistent with their use as streets and alleys. Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664; Gault v. Town of Lake Waccamaw, 200 N.C. 593, 158 S.E. 104.

It is not contended on this appeal that the original offer of dedication by McPherson has been withdrawn or attempted to be withdrawn pursuant to the provisions of G.S. § 136-96, as amended by Chapter 1091 of the Session Laws of 1953. Neither is it contended that the Town of Cameron has at any time by express action rejected the offer of dedication as was done in the case of Lee v. Walker, supra.

It is quite clear from the record that the plaintiffs have no record title to the portions of McPherson and Fifth Streets which they are now claiming. Therefore, it appears that if they prevail when the case is tried on its merits, they must do so by establishing adverse possession by themselves and their predecessors in title for more than twenty years.

In Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 958, 47 S.E. 462, it is said: "Where lots are sold and conveyed by reference to a map or plat which represents 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." (Emphasis added.) Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889; Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13, and authorities cited.

The purpose of an interlocutory injunction is to preserve the status quo of the subject matter. Huskins v. Yancey Hospital, 238 N.C. 357, 78 S.E.2d 116. In the instant case, contrary to finding of fact No. 4, to the effect "that the portion of McPherson and Fifth Streets in dispute *902 in McPherson Addition was and is woodland and growing in timber, bushes and undergrowth," the record discloses that prior to the issuance of the temporary restraining order, on 6 July 1956, the defendant, Town of Cameron, had proceeded with the clearing, grading and opening of the theretofore unopened portions of McPherson and Fifth Streets and that such streets were practically ready for hard surfacing when the order was signed.

Ordinarily, a temporary restraining order will be continued to the hearing if there is "probable cause for supposing that the plaintiff will be able to maintain his primary equity, and there is a reasonable apprehension of irreparable loss unless it remains in force, or if, in the opinion of the court, it appears reasonably necessary to protect the plaintiff's right until the controversy between him and the defendant can be determined." Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80, 82; Seip v. Wright, 173 N.C. 14, 91 S.E. 359; Boushiar v. Willis, 207 N.C. 511, 177 S.E. 632; Porter v. Jefferson Standard Life Insurance Co., 207 N.C. 646, 178 S.E. 223; Hare v. Hare, 207 N.C. 849, 178 S.E. 545; Little v. Wachovia Bank & Trust Co., 208 N.C. 726, 182 S.E. 491; Bailey v. Bryson, 214 N.C. 212, 198 S.E. 622; Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319.

Hence, whatever the evidence may be on the crucial question of adverse possession when this case is heard on its merits, in our opinion, the evidence on the hearing below does not show probable cause for supposing that the plaintiffs will be able to make good their allegations to the effect that they own a fee simple title to the land in controversy, nor does it appear that there is a reasonable apprehension of irreparable loss unless the restraining order remains in force. After all, the Town of Cameron is a municipal corporation and has statutory powers of condemnation. General Statute 160, sections 204, 205 and 206. Consequently, if the plaintiffs should prevail at the trial on the merits of the controversy, they have an adequate remedy at law to recover compensation for any loss they may sustain by reason of the taking of the property for street purposes. Greenville v. State Highway Commission, 196 N.C. 226, 145 S.E. 31; Roper Lumber Co. v. Coppersmith, 191 N.C. 217, 131 S.E. 575; Jones v. Lassiter, 169 N.C. 750, 86 S.E. 710; Griffin v. Southern R. Co., 150 N.C. 312, 64 S.E. 16.

For the reasons herein stated, the action in the court below, continuing the restraining order to the final hearing, is reversed.

Reversed.

JOHNSON, J., not sitting.