{ "id": 8654974, "name": "ELIZABETH CITY v. J. O. COMMANDER", "name_abbreviation": "Elizabeth City v. Commander", "decision_date": "1918-09-11", "docket_number": "", "first_page": "26", "last_page": "31", "citations": [ { "type": "official", "cite": "176 N.C. 26" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "145 N. C., 222", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "141 N. C., 517", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "19 N. C., 516", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "108 N. C., 511", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "23 N. C., 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2104285 ], "opinion_index": 0, "case_paths": [ "/nc/23/0252-01" ] }, { "cite": "170 N. C., 428", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "169 N. C., 390", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "161 N. C., 29", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "150 N. C., 637", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "134 N. C., 459", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "128 N. C., 564", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "128 N. C., 776", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 508, "char_count": 10766, "ocr_confidence": 0.476, "pagerank": { "raw": 3.4708439736771227e-07, "percentile": 0.8812268591720984 }, "sha256": "115108d613dcf83db5d6ad112553a08fc1e88a10067716da08286bc6902f74b3", "simhash": "1:803ae5daaad79f8c", "word_count": 1917 }, "last_updated": "2023-07-14T20:39:13.878101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELIZABETH CITY v. J. O. COMMANDER." ], "opinions": [ { "text": "AlleN, J.\nTbe defendant concedes that tbe survey and plat made by Busb & Lippincott, subdividing tbe land into lots and laying off streets tbereon, including Dyer Street, was an offer to dedicate tbe street to tbe use of tbe public, and that if this offer bad been accepted by tbe city, or if lots bad been conveyed calling for tbe streets, before tbe revocation of tbe offer by Busb & Lippincott, tbe offer would then have been irrevocable ; but be contends that there was no acceptance of offer and no deed calling for streets executed prior to tbe execution of tbe deed to Berry on 15 September, 1882, and that as this conveyed tbe street it was a revocation of tbe offer.\nThis position of tbe defendant is fully sustained by tbe authorities, if tbe deed to Berry is a revocation, but if not a revocation, tbe subsequent deeds by Busb & Lippincott calling for streets and referring to tbe plat are an irrevocable dedication, although Dyer Street was not referred to. Conrad v. Land Co., 128 N. C., 776; Collins v. Land Co., 128 N. C., 564; Hughes v. Clark, 134 N. C., 459; Baillere v. Shingle Co., 150 N. C., 637; Green v. Miller, 161 N. C., 29; Sexton v. Elizabeth City, 169 N. C., 390; Wheeler v. Construction Co., 170 N. C., 428.\nTbe Court says, in Conrad v. Land Co.: \u201cIf tbe owner of land lays it off into squares, lots, and streets, with a view to form a town or city, or as a suburb to a town or city, certainly if be causes tbe same to be registered in tbe county where tbe land is situated, and sells any part of 'the lots or squares, and in tbe deed refers in tbe description thereof to tbe plat, such reference will constitute an irrevocable dedication to tbe public of tbe streets marked upon tbe plat. Meier v. Portland, 16 Oregon, 500. . . . It is immaterial whether tbe public authorities of the city or county had formally accepted the dedication.\u201d And in Collin v. Land Co., quoting from Elliott on Roads: \u201cIt is not only those who buy lands or lots abutting on a street or road laid out on a map or plat that have a right to insist upon the opening of a street or road, but where streets and roads are marked on a plat, and lots are bought and sold with reference to the map or plat, all who buy with reference to the general plan or scheme disclosed by the plat or map acquire a right to all the public ways designated thereon, and may enforce the dedication. The plan or scheme indicated on the map or plat is regarded as a unity,'and it is presumed, as well it may be, that all the public ways add value to all the lots embraced in the general scheme or plan. Certainly, as every one knows, lots with convenient cross-streets are of more value than those without, and it is fair to presume that the original owner would not have donated land to public ways unless it gave value to the lots. So, too, it is just to presume that the purchasers paid the added value, and the donor ought not therefore to be permitted to take it from them by revoking part of his dedication.\u201d\nBoth of these cases are affirmed and approved in the other cases cited.\nIt becomes, therefore, of the first importance to determine the proper construction of the Berry deed, and to see whether it can be held to amount to a revocation.\nThe deed of 15 September was executed four days after the execution of the deed from Smith, purporting to convey lots marked on the plat, which clearly recognized the right of the city 'in Dyer Street, because it says that the conveyance is subject \u201cto any vested or prescribed rights of the corporation of Elizabeth City and others as to Dyer Street.\u201d\nThe deed of 15 September contains no express terms of revocation, and on the contrary one of the boundaries in the deed is described as \u201cextending from Dyer to Poplar Street.\u201d\nIt goes further than this, because, immediately following the enumeration of the boundaries, it is said in the deed: \u201cThe description herein made is according to a plat recorded in the office of the Register of Deeds of Pasquotank County, in Book 4, pages 38 and 39.\u201d\nThe legal effect of this last clause in the description is, according to the authorities, to incorporate the plat in the deed as a part of the description of the land conveyed. Everett v. Thomas, 23 N. C., 252; Euliss v. McAdams, 108 N. C., 511; H\u00e9mphill v. Annis, 19 N. C., 516; Gudger v. White, 141 N. C., 517; Baillere v. Shingle Co., 150 N. C., 637.\nThe Court says, in Everett v. Thomas: \u201cWe do not doubt that, by a proper reference of one deed to another, the description of the latter may be considered as incorporated into the former, and both be read as one instrument for the purpose of identifying the thing intended to he conveyed.\u201d And in Hemphill v. Armis: \u201cIt has been well settled by a series of adjudications that where a reference is made in one deed to another for a more definite description, the effect is to incorporate the description of the instrument referred to into that containing the reference, provided the language used points so clearly to \u2019the explanatory deed or instrument as to make it possible to identify it.\u201d And the other cases are to the same effect.\n\u2022We have, then, in the deed to Berry two descriptions \u2014 one sufficient to convey the fee in the street, and the other conveying the land and imposing upon it the easement; and following the rule of construction announced in Gudger v. White, 141 N. C., 517, that the whole deed must be considered in determining the intent of the parties, and in Modlin v. R. R., 145 N. C., 222, that effect must be given to all the clauses of the deed except when they are inconsistent and irreconcilable, the proper interpretation of the deed is that it conveyed the fee to all of the land, including Dyer Street, subject to the easement in Dyer Street for the use of the public; and if so, it cannot have the effect of revoking the offer to dedicate the street, arising upon the survey and plat made by Bush & Lippincott; and the execution of this deed and the subsequent deeds calling for lots and streets made this offer irrevocable.\nWe are therefore of opinion that, upon the facts that were not in dis-put\u00e9, his Honor held correctly that the plaintiff was entitled to the relief prayed for.\nNo error.", "type": "majority", "author": "AlleN, J." } ], "attorneys": [ "Aydlett, Simpson & Sawyer for plaintiff.", "J. B. Leigh and Meehins & McMullan for defendant." ], "corrections": "", "head_matter": "ELIZABETH CITY v. J. O. COMMANDER.\n(Filed 11 September, 1918.)\n1. Municipal Corporations \u2014 Cities and Towns \u2014 Streets\u2014Offer to Dedicate\u2014 Revocation \u2014 Acceptance\u2014Deeds and Conveyances.\nWhere the owner of lands within the corporate limits of a town has caused the same to be surveyed into streets and lots, and has duly registered the plat thereof, it is an offer of dedication, which is irrevocable after the acceptance by the town, or his conveying the'lots accordingly before revocation.\n2. Same \u2014 Maps.\nA conveyance of land which, the owner has platted into streets and lots, with map duly registered, made subject \u201cto any vested or prescribed rights of the\u201d town - and others to a street designated therein, is not a revocation of the offer to dedicate.\n3. Deeds and Conveyances \u2014 Boundaries\u2014Description\u2014Interpretation\u2014Reference to Maps \u2014 Municipal Corporations \u2014 Cities and Towns \u2014 Streets\u2014 Offer of Dedications.\nWhere the owner of lands, within the corporate limits of a town has caused the same to b'e platted into streets and lots, and the map thereof duly registered, and, in conveying a part thereof, includes one of the streets within the boundaries given, and states that the description is \u25a0according to the recorded plat, giving book and page in the register of deeds\u2019 office, the effect of the reference to the plat is to incorporate it in the deed as a part of the description of the land conveyed; and, construing the instrument as a whole, it conveys all the land, including the street, subject to the easement therein for the public use, and does not affect the previous offer of dedication.\nAppeal by defendant from Whedbee, J., at Special June Term, T918, of PASQUOTANK.\nThis is an action to have what is known as Dyer Street, in Elizabeth City, declared a public street, and to prevent the defendant from obstructing the same.\nThe land covered by Dyer Street is a part of 17 acres of land formerly . belonging to J. W. ITinton, and by successive conveyances the title to the whole 17 acres was vested in Bush & Lippincott in 1881.\nIn July, 1881, Bush & Lippincott had the land surveyed and platted and subdivided into lots which were numbered, and streets which were named, including Dyer Street.\nThe plat of this survey was registered in Pasquotank County, in Book 4. pages 38 and 39, and is as follows:\nOn 11 September, 1882, \"W. H. Smith executed a deed to E. H. Berry, purporting to convey some of said lots, \u201csubject to any vested or prescribed rights of the corporation of Elizabeth City and others to Dyer Street.\u201d\nOn 15 September, 1882, the surviving partners of Bush & Lippincott executed a deed to the said E. H. Berry, conveying several of the lots on the plat by the following description:\n\u201cSituate in the County of Pasquotank, State of North Carolina, in the town of Elizabeth City, known as \u2018Parsonage\u2019 property, bounded on the north or northeast by the remaining part of lot No. 30, 38 feet wide, extending from, Dyer to Poplar Street; on the easterly side, by the Academy lot and Hinton lots; on the south, by Parsonage Street, or Cotter Street; on the westerly side, by.Poplar Street. The description\nherein made is according to a plat recorded in the office of the Register of Deeds of Pasquotank County, in Book 4, pages 38 and 39.\u201d\nThe defendant claims under this deed, and the boundaries named therein cover Dyer Street, the deed to the defendant himself being executed by N. W. Stevens on 9 December, 1907, and containing the following clause:\n\u201cThis deed is made subject to any right the town may have to lay out Dyer Street as .per the Conrow, Bush & Lippincott plat, as recorded in Book 4, pages 38 and 39.\u201d '\nAfter tbe execution of tbe deed to Berry, tbe survivors of Busb & Lip-pineott executed several deeds to different parties, conveying lots by numbers to different parties, and calling for tbe streets tbereon, although none of these deeds called for Dyer Street.\nTbe plaintiff\u2019 relied on other deeds and contracts to show a dedication of Dyer Street to the use of tbe public prior to making and recording of tbe plat; but, in tbe view taken by tbe court of tbe question involved, it is not necessary to state tbe facts in regard thereto.\nAt tbe conclusion of tbe evidence bis Honor instructed tbe jury to answer tbe issues in favor of tbe plaintiff if they believed tbe evidence, and tbe defendant excepted.\nThere was a verdict for tbe plaintiff, and from tbe judgment pronounced tbereon tbe defendant appealed.\nAydlett, Simpson & Sawyer for plaintiff.\nJ. B. Leigh and Meehins & McMullan for defendant." }, "file_name": "0026-01", "first_page_order": 78, "last_page_order": 83 }