Todd v. White

97 S.E.2d 439 (1957)

246 N.C. 59

Charles B. TODD and wife, Jean W. Todd, v. Harvey S. WHITE, and John C. Quickel and wife, Alice M. Quickel, and Alvin E. Witten and wife, Meryl S. Witten, on behalf of themselves and all other residents and property owners in Fairmount Park.

No. 165.

Supreme Court of North Carolina.

April 10, 1957.

*441 Garland & Garland, Gastonia, for plaintiffs, appellants.

L. B. Hollowell and Verne E. Shive, Gastonia, for defendants, appellees.

JOHNSON, Justice.

The Fairmount Park subdivision as shown on the maps contains approximately 125 building lots. All these lots were sold and conveyed by D. B. Hanna and wife, original developers. Each of the deeds contains the following reservation:

"(12). The parties of the first part (D. B. Hanna and wife), their heirs and assigns, shall have the right to change, alter or close up any street or avenue shown upon said map or plat not adjacent to the lot above described and not necessary to the full enjoyment by the party of the second part of the above described property and shall retain the right and title to, and the control and disposition of all parks, streets, avenues and planting spaces and areas within the boundaries of Fairmount Park, as shown on said map or plat, subject only to the rights of the party of the second part for the purposes of egress and ingress necessary to the full enjoyment of the above described property." (Italics added.)

The plaintiffs by mesne conveyances now own the interest reserved by Hanna and *442 wife in the Park area shown on the maps. The plaintiffs contend the court below erred in finding and concluding that they may not convey the Park area, except as encumbered by easement for park purposes. The contention appears to be well taken.

True, the principle is well settled that when land is divided into lots according to a map thereof, showing streets, alleys, courts, and parks and lots are sold with reference to the map, nothing else appearing, the owner thereby dedicates the streets, alleys, courts, and parks to the use of the purchasers, and those claiming under them, and also under certain circumstances to the public. Foster v. Atwater, 226 N.C. 472, 38 S.E.2d 316; Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Irwin v. City of Charlotte, 193 N.C. 109, 136 S.E. 368; Green v. Miller, 161 N.C. 24, 76 S.E. 505, 44 L.R.A.,N.S., 231

Here, however, something else appears in the form of a reservation clause, which takes the locus in quo out of the operation of the foregoing rule. This reservation clause, appearing in the deeds by which all the lots in the subdivision were conveyed by the original developers of the property, in language free of ambiguity, clearly reserved to D. B. Hanna and wife the title and power to dispose of the Park area unburdened by easement for park purposes. The title and power so reserved is now vested in the plaintiffs by virtue of the mesne conveyances of record.

With decision thus resting on the reservation clause, it is not necessary to discuss the legal phases of these questions treated in the briefs: (1) whether the Park area was ever put to use as a park by the residents of the subdivision, or (2) whether there has been an effective withdrawal of the alleged dedication within the purview of G.S. § 136-96. It is unnecessary for an appellate court, after having determined the merits of the case, to examine questions not affecting decision reached. Painter v. Home Finance Co., 245 N.C. 576, 96 S.E.2d 731. Suffice it to say, the record discloses no sufficient evidence to justify a finding that the locus in quo or any part thereof was ever opened as a park. Besides, the court below made no specific finding or ruling on either of the foregoing questions.

Let the judgment below be modified so as to accord with the decision here reached, and as so modified it will be affirmed.

Modified and affirmed.