Bryan v. City of Sanford

92 S.E.2d 420 (1956)

244 N.C. 30

L. D. BRYAN v. The CITY OF SANFORD, The Board of Aldermen of the City of Sanford, and Harold T. Makepeace, Mayor, Lynn Perry, John T. Salmon, Thurman F. Nance, Bernice C. Kelly, Thomas C. Barker, Sam Davis and O. A. Zachary, members of the Board of Aldermen of the City of Sanford.

No. 532.

Supreme Court of North Carolina.

May 2, 1956.

*422 J. G. Edwards and J. Allen Harrington, Sanford, for plaintiff, appellant.

Orton J. Cameron, Sanford, for defendants, appellees.

DEVIN, Justice.

The question presented by this appeal is this: Did the incorporation of the socalled Deaton map as a part of the zoning ordinance of the City of Sanford, showing the intersection of Gray and Third Streets and the platted extension of Gray Street eastward beyond Third Street, have the effect of constituting an intersection with four corners within the purview of section 160-173 of the zoning statutes? Or, does the fact that Gray Street east of Third Street had never been actually opened, used or maintained by the City preclude the application of the statute?

There was no controversy as to the facts. It was found by the court that when the City of Sanford on February 2, 1954, adopted a general zoning ordinance under the provisions of the statute, it therein referred to and incorporated as a part thereof "a map referred to as `Sanford, N. C. Zoning map' showing the various districts; that the map made a part of the zoning ordinance is a copy of the map by Deaton and Cooke, dated December 18, 1928"; that the Deaton map was in 1929 duly accepted and paid for by the City by vote of the Board of Aldermen.

The court further found that the four corners of the intersection of Gray and Third Streets were shown on the map and were designated and identified by numbered lots and blocks situated at each corner of the intersection.

It is provided in G.S. § 160-173 that when at any intersection of streets the City promulgates regulations and restrictions as to two or more of the corners at said intersection, the City shall upon the written application from the owner of the other corners of the intersection re-district and regulate the remaining corners in the same manner.

The plaintiff's position is that since the City originally zoned all four corners of this intersection as industrial and has now re-zoned two corners only, the northwest and southwest corners, as residential, leaving the other corners unchanged, he is entitled upon written application to have his lot on the southwest corner restored to the original classification as industrial, in accord with the proviso in G.S. § 160-173.

The defendants' position is that there never were corners on the east side of Third Street, and hence the City had authority to change the classification of the only two corners, which were on the west side of Third Street, the northwest and southwest corners, from industrial to residential. The defendants argue that the mathematical lines on the map showing extension of Gray Street east of Third Street could not and did not constitute an acceptance by the City of unopened and unused land as a public street. The plaintiff, however, calls attention to the fact that the Deaton map was incorporated in and became a part of the zoning ordinance itself, and thereby established the lines and corners therein set forth for zoning purposes, and that blocks and subdivisions east of Third Street were laid off and lots sold as bounded by Gray Street as the lines of *423 such street were designated and established by the official map. Hence plaintiff contends that by the City's ordinances and actions the dedication of the eastern extension of Gray Street has been accepted and determined as a public street, to the extent that four corners at the intersection have been established within the meaning of the statute.

In Marren v. Gamble, 237 N.C. 680, 75 S.E.2d 880, 882, the proviso of G.S. § 160-173 was considered and analyzed, and the Court, speaking through Ervin, J., said: "When its phraseology is reduced to simple terms, it merely declares that whenever the legislative body of a municipality zones two or more corners at an intersection of streets in the corporate limits of a municipality in a certain way, `it shall be the duty of such legislative body upon written application from the owner of the other corners' of the intersection to rezone such other corners in the same manner."

In Robbins v. City of Charlotte, 241 N.C. 197, 84 S.E.2d 814, 815, a factual situation similar in some respects to the instant case was considered by this Court. In that case it appeared that Brandywine Road intersects but does not cross Selwyn Avenue. There was no extension of Brandywine Road beyond Selwyn Avenue, nor was there any usable way. It was said that this constituted a "dead-end" for Brandywine Road at Selwyn Avenue, and the property opposite was characterized as forming the "top of the `T'". The Court held in an opinion written by Johnston, J., that the proviso of G.S. § 160-173 could not be extended to cover only two corners, and that the area along the top of the "T" at the dead-end of the intersection could not be treated as a corner within the meaning of the statute.

However, we think the instant case distinguishable from the Robbins case, for the reason that here the extension of Gray Street beyond Third Street had been surveyed and laid out on a map which was accepted officially by the City, and there were laid out on this map the lines of Gray Street as extending east beyond Third Street for several blocks, and on this map were the lines of several blocks abutting on Gray Street, in consequence of which were sold lots described as bounded by the lines of Gray Street as shown on the map. In this situation, the City of Sanford in adopting the zoning ordinance incorporated this map as a part of the zoning ordinance showing four corners at this intersection.

We think the area within the platted lines of the extension of Gray Street had been dedicated to public use by the recorded map and the sale of lots as bounded thereby, and that the City by its acceptance of the map as official and incorporating it in, and as a part of, its zoning ordinance, had signified its acceptance for all purposes connected with its zoning regulations.

It would seem to follow as a logical conclusion that in so far as the zoning ordinance was concerned, there were four corners established at the intersection of Gray and Third Streets, and that the provisions of G.S. § 160-173 are applicable.

The established rule in this jurisdiction is that the platting of land showing streets and public places and sale of lots pursuant thereto, constitutes a dedication of the public places delineated upon the plat as between the grantor and the purchaser. But in so far as the municipality is concerned, this constitutes only an offer of dedication, and there is no complete dedication without an acceptance of some kind by the municipality. Gault v. Lake Waccamaw, 200 N.C. 593, 158 S.E. 104; Rowe v. Durham, 235 N.C. 158, 69 S.E.2d 171; Russell v. Coggin, 232 N.C. 674, 62 S.E.2d 70; Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Wheeler v. Charlotte Consol. Construction Co., 170 N.C. 427, 87 S.E. 221; Town of Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898.

However, evidence of acceptance would not be confined to use and maintenance of the land as such. Acceptance may be manifested by the adoption as official of a map delineating areas as public streets or places, followed by official acts and ordinances recognizing their character as such.

*424 "Recognition of dedicated streets or alleys in official maps constitutes acceptance of the dedication, particularly when followed by other acts." 26 C.J.S., Dedication, § 40, p. 109; 16 Am.Jur., 380; Sullivan v. City of Louisville, 291 Ky. 60, 163 S.W.2d 17; Village of Pleasantville v. Siciliano, 141 Misc. 283, 252 N.Y.S. 469.

Plaintiff here was entitled to require the defendants to comply with the provisions of the statute and to redistrict the plaintiff's lot at the intersection of Gray and Third Streets as industrial, as originally zoned. Marren v. Gamble, supra. Mandamus will lie to compel the performance of a purely ministerial duty imposed by law. Nebel v. Nebel, 241 N.C. 491, 499, 85 S.E.2d 876; Person v. Doughton, 186 N.C. 723, 120 S.E. 481.

Judgment reversed.

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