Osborne v. Town of North Wilkesboro

187 S.E.2d 102 (1972)

280 N.C. 696

Paul OSBORNE and wife, Marjorie Osborne, et al. v. The TOWN OF NORTH WILKESBORO, by its Board of Commissioners, W. F. Absher, Jr., D. V. Deal, R. M. Brame, Jr., Rex M. Handy, W. B. Gwyn and Mayor George Wiebel.

No. 62.

Supreme Court of North Carolina.

March 15, 1972.

*103 Samuel L. Osborne, Wilkesboro, for plaintiff appellees.

Whicker, Vannoy & Moore by J. Gary Vannoy, North Wilkesboro, for defendant appellants.

HIGGINS, Justice.

The evidence and findings in this case disclose that about the year 1900 land developers surveyed, filed, and registered a map showing lots, streets, and alleys for use in sales promotion. The map covers a large part of what is now the Town of North Wilkesboro. The map shows 108 blocks of lots and the proposed streets and alleyways proposed as access to them.

On the map Cherry Street is shown to be the main street for traffic east and west. A few tiers of lots are shown south of Cherry Street, two of which touch the north bank of the Yadkin River. The areas east and west of the two blocks which touch the River are shown on the map to be reserved to the private owners, apparently parties other than those interested in the development. Third, Fourth, Fifth and Seventh Streets (all north and south) have their southern beginning in Cherry Street. Sixth Street (alone) is shown as crossing Cherry. After crossing Cherry, the map shows Sixth Street extends southward for about 800 feet and dead-ends at the boundary of the privately owned and reserved area.

The evidence supports the court's findings that Sixth Street north of the intersection with Cherry has been surfaced and in use and has carried heavy traffic for many years, but that part shown as south of Cherry and the unnamed alley have never been developed and have never been used by the public at any time for any purpose. In fact a building has been constructed across what is marked on the map as Sixth Street. All of Sixth Street *104 south of Cherry and the unnamed alley have been in private use by the plaintiffs and their predecessors in title since the filing of the map by the developers. The tax map made by the City and used for tax purposes does not show Sixth Street or the alley south of Cherry. The plaintiffs and their predecessors have been charged with and have paid taxes on the lands described in their complaint which include the unused section of Sixth Street and the unnamed alley.

In view of the foregoing it is clear that the plaintiffs, as against the Town of North Wilkesboro, had the right to withdraw from dedication that part of Sixth Street and the unnamed alley south of Cherry. In this connection it seems clear that G.S. § 136-96 provided a remedy by which the plaintiffs could remove the cloud on their title resulting from the developers' map and the June 4, 1895, resolution of the Town Commissioners. Insofar as concerns the municipality when sales are made in reference to a map showing streets and alleys, the sale is an offer of dedication of these streets and alleys to the municipality. The municipal authorities may or may not accept the dedication at their election. If they improve the streets and open them to public use, acceptance is conclusively presumed. However, if the municipality for a period of fifteen years or more fails to improve and open to public use a street or alley shown on the developers' map, the owner may file and record a declaration withdrawing the street and alley from dedication. By failure to develop or use, the municipality's right to insist on the dedication is lost. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695; Salisbury v. Barnhardt, 249 N.C. 549, 107 S.E.2d 297; Steadman v. Pinetops, 251 N.C. 509, 112 S.E.2d 102. If the authorities for the statutory period fail to use the dedicated strips, the right to use is destroyed by a withdrawal.

We have not discussed here and are not concerned with the right of private purchasers of lots to insist that streets shown on a map by the developers be kept open for their benefit. Here involved is the right of the owners to take advantage of the Town's failure to open for public use that part of Sixth Street and the unnamed alley south of Cherry Street. G.S. § 136-96 provides a means by which the owners may withdraw their offer of dedication and after withdrawal protects the landowners against the right of the city to open Sixth Street or the unnamed alley south of Cherry Street.

The court was correct in deciding for the plaintiffs on the basis of the landowners' withdrawal of dedication filed and recorded in this case. The judgment of the Superior Court of Wilkes County is

Affirmed.