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1. Cities and Towns--dedication to public--alley
The trial court did not err by concluding the pertinent alley was dedicated to the public, because: (1) the deeds from the original owner of the dominant tract establish an intent to dedicate the alley to the public; (2) given the prior conveyances of the original owner dedicating the alley to the public and the requirements to research those prior conveyances, plaintiff had record notice of the dedication and the restrictions placed on the alley; and (3) contrary to plaintiff's assertion, neither plaintiff nor his predecessors in interest have been paying taxes on the alley.
2. Cities and Towns_implicit acceptance of dedication--alley_-assertion of control
The trial court did not err by concluding that defendant town implicityly accepted the offer of dedication of the pertinent alley by use and control because: (1) the record contains ample evidence to support a finding of public use of the alley, including ingress and egress for customers and deliveries to businesses; (2) there was competent evidence in the record to support the trial court's finding that the town accepted the alley through improvements and repairs to it; and (3) there was evidence in the record indicating that the public and the town had used the alley for over forty years.
3. Cities and Towns; Real Property--Marketable Title Act--alley open for public use
The trial court did not err by concluding that the Marketable Title Act did not bar defendant town from holding the pertinent alley open for public use, because: (1) given the use and character of the alley, the town's paving of the road, maintenance of the utilities underneath the alley, and provision of municipal services to the alley were sufficient to establish actual possession of the alley; (2) the fact that the town accepted dedication via use and control necessarily led to the conclusion that the town was in open and actual possession of the road and its interest in the alley cannot be defeated by the Act; (3) plaintiff's interpretation of the Act would deprive municipalities and the public of their rights in and to public streets and alleys unless municipalities filed notices under the Act every thirty years; and (4) nothing in the Act would allow the rights of the public to a dedicated right-of-way to be abolished.
Rose Rand Attorneys, P.A., by Jeffrey P. Gray and Jason R.
Page, for plaintiff-appellant.
Ward and Smith, P.A., by Ryal W. Tayloe, for defendant- appellee.
Pendergrass Law Firm, PLLC, by James K. Pendergrass, Jr. and Christopher R. Bullock, for defendant/intervenor-appellee.
Francis Frederick Kraft (plaintiff) filed a complaint on 24
June 2004 seeking to quiet title to property. Plaintiff asserted
that the property in question be quieted either pursuant to the
Marketable Title Act (the Act) or under the theory that there had
been no public dedication of the property. Town of Mt. Olive
(Town or defendant) asserted that there had been a dedication
and acceptance of the property, an alley, as a public right-of-way
or in the alternative that the Town had acquired a prescriptive
easement and that the Act did not apply. Defendant/Intervenor
Peoples National Bank (Bank or defendant) asserted the same.
The parties agreed to a bifurcated trial where the issues of
dedication and marketable title would be addressed first. If the
issues were determined in favor of plaintiff, a jury trial as to
the issue of a prescriptive easement would follow. The trial court
entered judgment as to the first set of issues in favor of the Town
and the Bank on 30 November 2005 so that the second phase of the
trial was not needed. Plaintiff appeals this ruling.
This case involves a dispute over the ownership of an alley (the alley) in the Town. Plaintiff owns property located at the corner of West Center Street and West James Street in the Town. (See footnote 1) Based on plaintiff's deed, he contends that he owns the alley running along the southeastern boundary of his property. Defendants assert that the property had been dedicated to the public by a prior owner.
The alley in question is approximately ten (10) feet in width and runs from West James Street to West John Street. The alley has been in existence since the 1920s. The original owner of the dominant tract, including the alley, was Ben W. Southerland (Southerland). Southerland conveyed portions of the dominant tract along West Center Street between West John Street and West James Street to various grantees. At least three of the five conveyances were made subject to and with reference to the alley.
The first conveyance from Southerland's estate stated that the alley shall at all times be kept open and unobstructed[.] Thesecond stated that the alley shall at all times be kept open, free for passage and unobstructed[.] Finally, the fifth reserved the free use of a ten foot alleyway and stated that this alley shall be kept open for the benefit of the public[.]
After the death of Southerland, his estate recorded a plat (See footnote 2) of the remaining portions of the dominant tract on 15 December 1926. Among the parcels sold was a portion of the dominant tract to Rubineal Witherington (Witherington), including what is now the Kraft Building site, subject to and with reference to the alley.
On 6 May 1981, Witherington conveyed the Kraft Building to Kraft Studios, Inc. by general warranty deed. Kraft Studios, Inc. conveyed the Kraft Building, by the description referenced in footnote one above, to plaintiff Francis Kraft and his then wife, Linda S. Kraft. Linda S. Kraft, pursuant to a divorce settlement, conveyed her interest in the Kraft Building to plaintiff by a quitclaim deed on 11 August 1989.
Plaintiff operates various businesses and lives in the Kraft Building. Plaintiff sought to build a courtyard within the boundary of the alley. The Town denied this request, and plaintiff filed this action to quiet title to his property. The trial court ruled in favor of the Town and the Bank.
Plaintiff presents three questions for this Court to review: (1) whether the alley had been properly dedicated to the public use; (2) if so, whether the Town accepted that dedication; and (3)whether the Act bars defendants' claim to the alley. After careful consideration, we affirm the ruling of the trial court.
When the trial court sits without a jury, as it did in this case, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts. Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). The trial court's conclusions of law are reviewed de novo. Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980).
BEGINNING at the southwestern corner ofthe Mt Olive Theater Building, the corner of West Center Street and West James Street, then N. 46-18-51 W. 91.10 feet to a point, the edge of an alley and said theater building, the beginning point; then continuing N. 46-18-51 W. 8.9 feet, the alley; then N. 46-23-12 W. 59.20 feet, the Kraft building; then the Western wall of the Kraft building, N. 43-36- 18 E. 109.42 feet; then the back wall and lot, S. 46-20-13 E. 59.80 feet to a stake, the edge of the alley; then continuing S. 46-20-13 E. 9.15 feet across the alley; then the Eastern line of the alley, S. 44-11-43 W. 14-98 feet; then continuing the eastern line of said alley, S. 44-32-06 E. 49.88 feet to the theater building; then the back wall of the theater, S. 43-50-05 E. 44.92 to the point and place of beginning. Being the same land described in that deed dated June 5, 1981, from Kraft's Studio, Inc. to Francis Frederick Kraft and wife, Linda S. Kraft, recorded in the Wayne County Registry in Book 1009, Page 531.
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