Craig v. Neal

864 S.E.2d 802

Eric E. CRAIG and wife, Gina D. Craig, Plaintiffs,

v. Betty Blair NEAL, Defendant,andJack Hudson and wife, Ginner Hudson, and James F. Shuman, Jr. and wife, Anne Marie P. Shuman, Nominal Defendants.

No. COA20-261

Court of Appeals of North Carolina.

Filed September 7, 2021

Law Office of Kenneth T. Davies, P.C., by Kenneth T. Davies, for the Plaintiffs-Appellants.

Johnston, Allison & Hord, P.A., by Mary Fletcher Mullikin and Martin L. White, Charlotte, for the Defendant-Appellee

DILLON, Judge.

I. Background

¶ 1 Plaintiffs own a 2.57-acre lot located within Country Colony, a 17-lot residential subdivision in Charlotte. Defendant owns three residential lots adjacent to Plaintiffs’ lot, but which lie outside of the Country Colony subdivision. Their dispute concerns their respective rights, if any, to use a certain right-of-way depicted on a plat recorded in 1952 when Plaintiffs’ lot and Defendant's three lots were part of a larger tract.

¶ 2 Prior to 1952, Plaintiffs’ lot and Defendant's three lots were part of a larger 65-acre tract of land owned by the Newsons, a married couple. In 1952, a plat (the "1952 Plat") was recorded depicting a 7.585-acre tract carved out from the 65-acre tract. The 1952 Plat is reproduced below:

This 1952 Plat was filed in anticipation of the Newsons conveying part of their 65-acre tract – specifically this 7.585-acre tract – to another couple, the Penders, and retaining the remaining 57 acres for the development of Country Colony. The 1952 Plat depicts a new right-of-way, labeled as "Country Lane," straddling the boundary separating the 7.585-acre tract shares from the future Country Colony subdivision. Based upon the 1952 Plat, Country Lane is depicted as a right-of-way sixty (60) feet in width, with thirty (30) feet in width on either side of the boundary line.

¶ 3 Over the course of time, this 7.585-acre tract was subdivided into lots, with Defendant acquiring three of said lots. Country Colony was developed into 17 lots, with Plaintiffs coming to own the lot adjacent to Defendant's property, along the bend of County Lane.

¶ 4 Also, at some point, two gravel roads were created within the Country Lane right-of-way. One of these roads provides Defendant access to her lots from Kuykendall Road. In 2018, Plaintiffs erected a fence on their lot that extended across the gravel road, depriving Defendant's ability to use the road to access Kuykendall Road from her lots. Plaintiffs’ act led to the commencement of this action.

¶ 5 The matter was tried without a jury. Plaintiffs argued at trial, in part, that any right that Defendant might have had in Country Lane was extinguished by operation of the Marketable Title Act. The trial court, however, determined that Country Lane is, in fact, a public right-of-way, owned by the City of Charlotte. The trial court concluded the Marketable Title Act does not apply and ordered Plaintiffs to remove the fencing. Plaintiffs timely appealed.

II. Standard of Review

¶ 6 Since this matter was tried by the trial judge, and not by a jury, "the trial court is the fact finder; and on appeal, [we] are bound by the trial court's findings if competent evidence in the record supports those findings." Fortune Ins. Co. v. Owens , 351 N.C. 424, 428, 526 S.E.2d 463, 466 (2000). However, we review de novo the trial court's conclusions of law and whether those conclusions are supported by the findings of fact. See Kirby Bldg. Sys., Inc. v. McNiel , 327 N.C. 234, 241, 393 S.E.2d 827, 831 (1990).

III. Summary of Opinion

¶ 7 The parties dispute their respective rights to use the Country Lane right-of-way. Accordingly, "Country Lane," as used in this opinion, refers specifically to the 60-foot wide, right-of-way area as depicted on the 1952 Plat , and not to the gravel roads themselves or to any other area.¹

¶ 8 The trial court determined that Country Lane is a public right-of-way, owned by the City of Charlotte, based on its finding that the Newsons dedicated Country Lane to the city when they recorded the 1952 Plat. Based on this determination, the trial court declared that all parties (and the public) have the right to use all of the Country Lane right-of-way.

¶ 9 We conclude, however, that the trial court's findings and the undisputed facts do not support the trial court's finding that the Newsons intended to dedicate Country Lane to the City of Charlotte or any other governmental body back in 1952. Rather, we conclude the Newsons intended to create private easement rights for the benefit of the owners of the land adjacent to Country Lane as a matter of law. It may be that the City of Charlotte has come to own all or portions of Country Lane based on some other legal theory. However, no other theory has been argued in this appeal; the findings and the evidence in the record do not conclusively establish the City's ownership as a matter of law; and the City is not a party to this action.

¶ 10 Further, we conclude the parties have private appurtenant easement rights to portions of Country Lane not on their respective lot(s) for ingress and egress to the public roads.²

IV. Analysis

A. No Substantial Evidence That Country Lane Is a Public Right-Of-Way

¶ 11 The trial court found that the Newsons (who owned the original 65-acre tract) dedicated Country Lane as a public road in 1952. Specifically, the trial court found:

The process followed by the developer of Country Colony [the Newsons] was typical for plats filed in the 1950s when rights of way were offered for dedication to the public. In the case, the recordation of the [1952 Plat] was an offer to dedicate Country Lane to the public.

(Emphasis added.) This theory of "dedication" formed the sole theory by which the trial court determined Country Lane to be a public road owned by the City of Charlotte.

¶ 12 The term "dedication" refers to the process by which an owner/developer of real estate offers, either formally or informally, some portion of his development to the general public , typically for a road, and said offer is accepted by the governing authority. See Spaugh v. Charlotte , 239 N.C. 149, 159-60, 79 S.E.2d 748, 756 (1954).³

¶ 13 A dedication offer can be made either expressly or through implication. Id. at 159, 79 S.E.2d at 756 (stating that "[d]edication may be either in express terms or may be implied from conduct on the part of the owner"). But a dedication is only completed when the developer's offer is accepted by the responsible public authority. Wofford v. Highway Commission , 263 N.C. 677, 683, 140 S.E.2d 376, 381 (1965).

¶ 14 We conclude that no substantial evidence exists in the record to support the trial court's finding that the Newsons intended to offer, expressly or by implication, Country Lane to the public. Rather, the 1952 Plat and other documents filed contemporaneously demonstrate that the Newsons intended to create Country Lane as a private appurtenant easement for the benefit of the subdivided 7.585-acre tract and the to-be-developed Country Colony tract.

¶ 15 Specifically, no evidence tends to show the Newsons expressly offered to dedicate Country Lane for public use. The 1952 Plat merely identifies Country Lane as a "R/W," meaning right-of-way, without any express indication that the right-of-way was dedicated for public use. The trial court did determine, though, that the Newsons impliedly offered for dedication Country Lane when they recorded the 1952 Plat.

¶ 16 Our Supreme Court has recognized that where an owner of land files a plat showing land subdivided "into lots and streets, and sells and conveys the lots or any of them with reference to the plat, nothing else appearing, he thereby dedicates the streets ... [to] the public." Blowing Rock v. Gregorie , 243 N.C. 364, 367, 90 S.E.2d 898, 901 (1956). However, our Supreme Court has also recognized that an owner filing a plat may be deemed to have granted a private easement solely to the adjacent landowners and not a grant to the public:

Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use, and this right is not subject to revocation except by agreement. It is said that such streets, parks and playgrounds are dedicated to the use of lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. It is a right in the nature of an easement appurtenant.

Realty Co. v. Hobbs , 261 N.C. 414, 421, 135 S.E.2d 30, 35-36 (1964) (citations omitted).

¶ 17 In reaching its determination that the Newsons intended an offer to the public when they recorded the 1952 Plat, the trial court relied on "expert" testimony. The opinion was essentially that the manner in which the 1952 Plat and another plat filed the same year laying out the 17 lots of Country Colony was the manner in which real estate developers during that time would go about dedicating a street to the public. We conclude, however, while expert opinion is admissible on the proper legal interpretation of recorded real estate documents, the "expert" opinion offered at the trial below was clearly not reliable. Specifically, the plats upon which the expert opinion was based are materially different from the 1952 Plat. The plats relied upon depicted subdivisions where the property lines for the lots did not extend to the center line of the streets. Rather, the streets depicted were not part of any lot to be sold. And no lots were sold in those subdivisions which included ownership of any part of the streets depicted on the plats. Below is one of the plats relied upon by the expert; specifically, a plat from 1952 depicting the Eastway Park subdivision in Charlotte, recorded in Map Book 1487, Page 465 in the Mecklenburg County Registry:

It could certainly be "implied" from the above plat that the...