Woody v. Clayton

Brock, J.

Defendants assign as error that the trial judge refused to allow in evidence before the jury the testimony of defendant W. M. Clayton relative to oral statements made to him by plain *523 tiff Thomas B. Woody in 1940 and subsequent years concerning plaintiffs’ intention to subdivide the entire tract of land and to extend Woody Street to the western boundary of the tract.

Defendants argue in their brief that their right of easement was by express or implied dedication on the part of the plaintiffs by the language and conduct of Mr. Woody showing an intention to dedicate and that they relied thereon in initially contracting for and later purchasing their house and lot.

The authorities cited by defendants amply support the general proposition that “a dedication may be by express language, reservation, or by conduct showing an intention to dedicate; such conduct may operate as an express dedication, as where a plat is made showing streets, alleys, or parts, and the land is sold, either by express reference to such plat or by showing that the plat was used and referred to in the negotiations.” Green v. Barbee, 238 N.C. 77 , 76 S.E. 2d 307 . However, the defendants cannot bring themselves within this principle because their contract to purchase was entered into approximately ten months before any survey or plat was made showing Woody Street extended. Even though plaintiffs may have told defendants of their future plans at the time of entering into the contract for purchase, defendants cannot compel plaintiffs to go through with a plan that was later abandoned by plaintiffs as undesirable. If defendants had desired to acquire a right of way or other easement over the remainder of the lands of plaintiff they should have insisted that the easement be declared in the contract for purchase. It would be a dangerous invasion of rights of property to impose an easement by implication or otherwise based upon the slippery memory of witnesses after many years have passed and circumstances have changed. Milliken v. Denny, 141 N.C. 224 , 53 S.E. 867 .

The case of Spaugh v. Charlotte, 239 N.C. 149 , 79 S.E. 2d 748 , relied upon by defendants, makes some statements that, when lifted out of context, seem to support defendants’ position. However, in Spaugh the city was seeking to withdraw from dedication school property which the Board of School Commissioners had accepted from the city and used for many years. The language of the opinion must be read and understood in the light of the factual circumstances therein involved. Clearly there has been no acceptance and use by the defendants of an easement across the remainder of plaintiffs’ property in this case.

The cases of Somersette v. Stanaland, 202 N.C. 685 , 163 S.E. 804 , and Lee v. Walker, 234 N.C. 687 , 68 S.E. 2d 664 , are clearly distinguishable in fact and principle from the present case.

*524 Plaintiffs do not, and never have, disputed defendants’ right to use Woody Street as a means of ingress and egress to and from defendants’ property to North Main Street. This portion of Woody Street was surveyed and platted before defendants entered into their contract of purchase. Their easement to use that portion of Woody Street arises by implication, if not by express dedication. Also, defendants have an additional easement to have Woody Street extended westwardly for the 100 feet along the north boundary of defendants’ lot; this easement arises by virtue of the wording of the contract and deed.

The defendants’ remaining assignments of error stand or fall with the resolution of their first assignment of error, and, having determined that their first assignment of error is without merit, we overrule their remaining assignments of error.

Affirmed.

Mallard, C.J., and Parker, J., concur.