The opinion
Douglas, J.,
concurring in result only. I am compelled to concur in tbe judgment of tbe Court, since, however erroneous tbe opinion of tbe Court may be, it would be manifestly inequitable to compel tbe defendant to specific performance of a contract for tbe purchase of land, tbe use of which this Court will not permit him to enjoy. I do not think that tbe case of Collins v. Land Co. 128 N. C., 563 , has any application to tbe case at bar, but in any event my views have been so fully expressed in my dissenting opinion in that case that it is needless to repeat them here.
As to tbe other question in tbe case, tbe solution seems very simple. Tbe plaintiff owns tbe ten feet in controversy in fee-simple, subject only to whatever rights of easement tbe public or adjacent proprietors may have therein. When tbe easement ceases to exist by abandonment or otherwise, tbe owner retains tbe fee and recovers tbe unrestricted use of bis property. I freely admit that tbe town cannot entirely close up tbe street, or sell or give any part of it to any one; but I am not aware of any law by which a private donor or donee can compel tbe town to accept a street of any specified width. If tbe town keeps open a street of suitable width, I see no reason why it cannot refuse to accept or subsequently abandon such part as may be neither necessary nor convenient for public use. This is simply an abandonment of tbe public easement ‘pro tanto and in no sense a gift, concession or conveyance to any one.
We all know that a well-paved street of forty feet would be much more useful than fifty feet of mud boles, and that it would cost proportionately more to pave a wider street than one of less width. It is common knowledge that tbe city of *466 Washington, in spite of the national aid it constantly receives, found it impossible to bear tbe expense of paving its residence streets at their original width, and permitted a certain number of feet to be enclosed by the adjacent owners. As there, the fee never was in the adjacent owners, they acquired only such permissive use as the city might give them. In the case at bar the fee was already in the plaintiff, and the abandonment of the public use simply relieved that much of his land of the burden of the pre-existing easement.
Connor, J"., having been of counsel, did not sit on the hearing of this case.