1. Highways and Streets--entitlement to strip of land-_public
dedication_-summary judgment
The trial court erred in a declaratory judgment action by
granting summary judgment in favor of defendants on the issue of
whether plaintiff is legally entitled to the use of a certain
strip of land based on the determination of the proper width of
the pertinent street, because: (1) the record discloses the
existence of genuine issues of material fact regarding whether
defendant town has taken action that constitutes an acceptance of
defendant individuals' offer of public dedication of the
pertinent strip of land on the 1965 map; (2) plaintiff's deed has
not been included in the record, making it impossible to
determine whether plaintiff purchased his lot pursuant to a deed
that referenced a particular map or plat, and if so, which map or
plat; (3) there is an absence of information in the record
regarding the location of the street as depicted on the 1965 map
as compared to the location of the street as it currently exists;
and (4) the record is unclear as to whether some or all of the
street has ever been submerged by water.
2. Declaratory Judgments_-proper party_-controversy between
every party not required
The trial court erred in a declaratory judgment action by
granting a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6)
in favor of defendant town on the issue of whether plaintiff is
legally entitled to the use of a certain strip of land based on
the determination of the proper width of the pertinent street,
because: (1) it is not necessary under the Declaratory Judgment
Act that there be a controversy between every party in the
action, and plaintiff has set forth a real and justiciable
controversy between himself and defendant individuals; and (2)
any declaration as to whether defendant town accepted defendant
individuals' offer of dedication of the pertinent street as
depicted in the 1965 map will affect defendant town's interest,
making the town a proper party to the declaratory judgment
action.
Rudolf, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse,Jr.; and Laura S. Jenkins, for plaintiff-appella
nt.
Smith Helms Mulliss & Moore, L.L.P., by James G. Exum, Jr. and
Robert R. Marcus; Baxley & Trest, by Roy D. Trest, for
defendant-appellees Sunset Beach & Twin Lakes, Inc., Edward M.
Gore and Dinah E. Gore.
Fairley, Jess, Isenberg & Green, by Michael R. Isenberg and
Laura E. Thompson, for defendant-appellee Town of Sunset
Beach.
HUNTER, Judge.
North Shore Drive is a street located on the island of Sunset
Beach in Brunswick County, North Carolina. On 14 February 2000,
Gary F. Singleton (“plaintiff”), owner of a lot abutting on North
Shore Drive, filed a complaint seeking a declaratory judgment as to
the proper width of the street. On 8 May 2000, the trial court
entered an order granting a motion to dismiss in favor of defendant
Town of Sunset Beach (“the Town”) pursuant to Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1,
Rule 12(b)(6) (1999). On 16 May 2000, the trial court entered a
second order denying plaintiff's motion for summary judgment and
granting summary judgment in favor of defendants Sunset Beach &
Twin Lakes, Inc., Edward M. Gore (president of the corporation),
and Mr. Gore's wife Dinah E. Gore (collectively “the Gores”).
Plaintiff appeals from these orders. We affirm in part, reverse in
part and remand.
The parties on appeal have generally construed this case as a
dispute over the proper width of North Shore Drive. However, this
case is actually a dispute over whether plaintiff is legally
entitled to the use of a certain strip of land designated as North
Shore Drive on a map of the eastern end of Sunset Beach filed in1965. True, the map filed in 1965 depicts North Shore Drive as a
street with a width of sixty feet; and, apparently, North Shore
Drive as it is currently constructed (or at least as it has been
depicted in subsequent maps) is only thirty feet in width.
However, in fact, there is no single “North Shore Drive,” the width
of which is to be declared by the court. Rather, there are at
least two mapped versions of North Shore Drive (if not more), and
the question is whether plaintiff is entitled by law to the use of
the sixty-foot strip of land, or a portion thereof, designated as
North Shore Drive on the 1965 map.
The record tends to establish the following pertinent facts.
In the 1950's, the Gores began to develop the island of Sunset
Beach. On 21 July 1965, a map (“the 1965 map”) was recorded at
Book 8, Page 7, in the Brunswick County Registry, showing a survey
of the eastern end of the island. The 1965 map depicts North Shore
Drive as running generally east-west, with a width of sixty feet.
On 6 August 1965, the Gores conveyed to James Bowen (“Bowen”)
a large parcel of land adjacent to North Shore Drive (“the Bowen
property”). This conveyance was made pursuant to a deed dated 22
July 1965 (“the Bowen deed”) which was recorded at Book 184, Page
452, and which expressly references the 1965 map.
According to an affidavit from Mr. Gore, submitted in support
of the Gores' motion for summary judgment, the 1965 map shows only
the “proposed development” of the island. At that time, according
to Mr. Gore, “the area known as North Shore Drive had not [yet]
been established and opened on the ground.” Subsequently,
according to Mr. Gore's affidavit, a body of water known as TubbsInlet gradually migrated westward over a number of years until, by
1969, it covered a portion of the eastern end of the island. In
May of 1969, the Gores allegedly began to reclaim, by dredge and
fill, portions of the island that had been submerged by water.
According to Mr. Gore's affidavit, this “reclamation project” was
completed in February of 1970, and the reclaimed portion of the
island was then re-subdivided and re-platted.
On 12 June 1975, the Town Council adopted a resolution
expressing its intent to permanently close and relocate the portion
of North Shore Drive (as depicted on the 1965 map) between Cobia
Street and Sixteenth Street. This portion does not include the
portion of North Shore Drive between Sixteenth Street and the water
on which plaintiff's lot currently abuts. The stated purpose for
relocating this portion of North Shore Drive was to allow for the
“proper use of the abutting property and for the safe location of
the street with reference to the waterline just North of this
portion of the street.” This resolution was unanimously adopted by
the town at a public hearing on 11 July 1975, held pursuant to N.C.
Gen. Stat. § 160A-299 (1999). The relocation was apparently not
undertaken until sometime later.
On 13 September 1976, a map (“the 1976 Bowen Map”) was
recorded at Book H, Page 356, which illustrates the division of the
Bowen Property into lots, and which (like the 1965 map) shows North
Shore Drive to be sixty feet in width. Later on the same day,
another map (“the 1976 Gore Map”) was recorded at Book H, Page 358,
which illustrates the division of a large tract of property owned
by the Gores into lots, and which (contrary to the 1965 map)depicts the entire length of North Shore Drive to be thirty feet in
width. On 7 December 1977, a map (“the 1977 Bowen Map”) was
recorded at Book I, Page 379, which shows the addition of cul-de-
sacs to the ends of Sixteenth, Seventeenth, Eighteenth, and
Nineteenth Streets, and which, again, depicts North Shore Drive as
sixty feet in width.
Either in 1986, or at some point in time thereafter, plaintiff
purchased lot twenty-five from Bowen (“plaintiff's lot”). However,
the deed for this conveyance has not been included in the record.
Finally, on 22 December 1999, the Gores recorded a “Withdrawal of
Street from Dedication” at Book 1349, Page 1112. This document
purports to withdraw the offer of dedication of North Shore Drive
as depicted in the 1965 map, pursuant to N.C. Gen. Stat. § 136-96
(1999).
It is not clear from the record whether the 1976 Gore Map is
consistent with the way in which the eastern end of the island is
currently constructed. According to this map, North Shore Drive,
running generally east-west, begins at Cobia Street at its western
end, and runs east to the water at its eastern end. Sixteenth
Street, which runs north-south, crosses North Shore Drive at a
point approximately halfway between Cobia Street and the water.
Plaintiff's lot abuts on North Shore Drive at a point between
Sixteenth Street and the water. In addition, it is undisputed that
Sunset Beach & Twin Lakes, Inc., Edward M. Gore and Dinah E. Gore
currently own all lots abutting on the north and south sides of
North Shore Drive between Cobia and Sixteenth Streets.
The parties dispute whether the portion of North Shore Drivebetween Sixteenth Street and the water (on which plaint
iff's lot
abuts) has ever been moved or relocated from where it is depicted
on the 1965 map. In fact, the parties dispute whether North Shore
Drive, as it appears on the 1965 map, has ever been opened or used
at all. In his affidavit, Mr. Gore contends that the actual
physical location on the face of the earth of North Shore Drive as
it currently exists is different than the strip of land designated
as North Shore Drive on the 1965 map. However, according to
plaintiff's affidavit, submitted in support of his motion for
summary judgment, the location of the portion of North Shore Drive
between Sixteenth Street and the water was not affected by the
dredge and fill in 1969, and that portion has “been opened and used
continuously since . . . 1974.”
“Appellate review of a grant of summary judgment is limited to
two questions: (1) Whether there is a genuine question of material
fact; and (2) whether the moving party is entitled to judgment as
a matter of law.” Gregorino v. Charlotte-Mecklenburg Hospital
Authority, 121 N.C. App. 593, 595, 468 S.E.2d 432, 433 (1996). “A
motion for summary judgment should be granted if, and only if, 'the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact . . . .'” Wooten v. Town
of Topsail Beach, 127 N.C. App. 739, 740, 493 S.E.2d 285, 286-87
(1997) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990)), disc.
review denied, 348 N.C. 78, 505 S.E.2d 888 (1998).
[1]Plaintiff has articulated two theories in support of hisclaim that he is entitled to the use and enjoyment of t
he sixty-
foot-wide strip of land designated as North Shore Drive on the 1965
map. First, plaintiff contends that he is entitled to an
individual easement by estoppel over this strip of land. Second,
plaintiff contends that the Gores made an offer of public
dedication of this strip of land, and that this offer of dedication
has been accepted by the Town. Based upon the incomplete record
before us, which contains numerous genuine issues of material fact,
we are unable to conclude that either plaintiff or the Gores are
entitled to judgment as a matter of law.
First, the record discloses the existence of genuine issues of
material fact regarding whether the Town has taken action that
constitutes an acceptance of the Gores' offer of public dedication
of the strip of land depicted as North Shore Drive on the 1965 map.
For example, the evidence as to whether the Town has used and
maintained North Shore Drive as it appears on the 1965 map, as
noted above, is conflicting. Whether there has been an acceptance
of the offer of dedication is significant because the purported
withdrawal by the Gores in 1999 of the strip of land designated as
North Shore Drive on the 1965 map would be ineffective as a matter
of law if, prior to that time, the Town had accepted the offer of
public dedication. See N.C. Gen. Stat. § 136-96.
We also note that plaintiff's deed has not been included in
the record. As a result, we are unable to determine whether
plaintiff purchased his lot from Bowen pursuant to a deed thatreferenced a particular map or plat, and if so, which map or plat.
;
(See footnote 1)
There is also a striking absence of information in the record
regarding the location on the face of the earth of North Shore
Drive as depicted in the 1965 map as compared to the location on
the face of the earth of North Shore Drive as it currently exists
(or as depicted in the 1976 Gore map). This is significant because
it may bear upon whether North Shore Drive as depicted in the 1965
map is necessary for convenient ingress to and egress from
plaintiff's lot; which, in turn, may have an impact upon the Gores'
right to withdraw North Shore Drive as depicted on the 1965 map
pursuant to N.C. Gen. Stat. § 136-96. Finally, the record is also
unclear as to whether some or all of North Shore Drive has ever
been submerged by water, and, as a result, we are unable to
determine what effect, if any, this might have on the rights of the
parties. See, e.g., Ward v. Sunset Beach & Twin Lakes, Inc., 53
N.C. App. 59, 279 S.E.2d 889 (1981).
[2]However, we are able to address plaintiff's argument that
the trial court erred in granting the Town's motion to dismiss.
The Town moved to dismiss pursuant to Rule 12(b)(6). In general,
a Rule 12(b)(6) motion to dismiss “challenges whether a complaint
states a legally sufficient cause of action.” Perry v. Carolina
Builders Corp., 128 N.C. App. 143, 146, 493 S.E.2d 814, 816 (1997).
For a court to have jurisdiction under the Declaratory JudgmentAct, N.C. Gen. Stat. §§ 1-253 to -267 (1999), the plaintiff must
allege in his complaint that a real and justiciable controversy,
arising out of opposing contentions as to respective legal rights
and liabilities, exists between or among the parties, and that the
relief prayed for will make certain that which is uncertain and
secure that which is insecure. See Town of Spencer v. Town of East
Spencer, 351 N.C. 124, 127, 522 S.E.2d 297, 300 (1999). Further,
“[w]hen declaratory relief is sought, all persons shall be made
parties who have or claim any interest which would be affected by
the declaration, and no declaration shall prejudice the rights of
persons not parties to the proceedings.” N.C. Gen. Stat. § 1-260.
The Town argues that its motion to dismiss was properly
granted because plaintiff has not alleged a controversy between
himself and the Town. However, it is not necessary under the
Declaratory Judgment Act that there exist a controversy between
each and every party to the action. Here, plaintiff has set forth
a real and justiciable controversy between himself and the Gores,
thereby establishing jurisdiction under the Declaratory Judgment
Act over the issues raised in the complaint. The complaint seeks,
in part, a declaration as to whether the Town accepted the Gores'
offer of dedication of North Shore Drive as depicted in the 1965
map. Any declaration regarding whether the Town has accepted the
offer of dedication of North Shore Drive as depicted on the 1965
map will affect the Town's interest. Therefore, although the Town
does not dispute plaintiff's allegations, and may in fact benefit
from a declaration in plaintiff's favor, the Town is still a proper
party to this declaratory action because its interests will beaffected by the outcome. Thus, the Town's Rule 12(b)(6) motion to
dismiss should have been denied.
In summary, we reverse the grant of the Town's motion to
dismiss and hold that the Town is a proper party in this
declaratory action. Further, we affirm the denial of plaintiff's
motion for summary judgment but we reverse the grant of the Gores'
motion for summary judgment because of the existence of genuine
issues of material fact, and we remand for further proceedings.
Affirmed in part, reversed in part and remanded.
Judges WYNN and TYSON concur.
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