Jackson v. City of Gastonia , 246 N.C. 404 ( 1957 )

98 S.E.2d 444 (1957) 246 N.C. 404

J. G. JACKSON, Janie L. Loftin, F. L. Jackson, R. A. Jackson, R. M. Jackson and E. E. Jackson,
v.
The CITY OF GASTONIA.

No. 167.

Supreme Court of North Carolina.

June 7, 1957.

L. B. Hollowell, Hugh W. Johnston, Gastonia, for plaintiffs appellants.

J. Mack Holland, Jr., James B. Garland, Gastonia, for defendant appellee.

WINBORNE, Chief Justice.

Of the underlying questions to be properly considered on this appeal, appellee states in substance this one: Did the defendant wrongfully take possession of the water and sewer lines which are the subject of this controversy and appropriate the same to its own use without compensation therefor? In the light of the agreed facts this Court is constrained to hold that this question must be answered in the affirmative. The cases of Farr v. City of Asheville, 205 N.C. 82, 170 S.E. 125, and Spaugh v. City of Winston-Salem, 234 N.C. 708, 68 S.E.2d 838, 839, upon which defendant, appellee, mainly relies are distinguishable in factual situation from that of the case in hand,—and are not controlling here.

In the Farr case, supra, the owner of a subdivision outside the corporate limits of a city constructed water mains therein, and for his own convenience and profit connected them with the city water system, and the city furnished water through such mains to the residents of the development, collecting water rentals from the residents; and thereafter the corporate limits of the city were extended to include the development, and the city continued to furnish water to the residents of the development in the same manner as before the extension and without any assertion of ownership of the mains installed by plaintiff. The Court held that the evidence to this effect is insufficient to show a taking or appropriation of the plaintiff's main,—that the mere extension of the city limits does not amount to a wrongful taking or appropriation of plaintiff's property.

In the instant case the stipulated facts show that the city of Gastonia, after the territory embracing the water and sewer lines was incorporated into the corporate limits of the city, "the defendant has taken over, used and controlled said water and sewer lines to the same extent as if said lines had been installed by the defendant originally."

And in the Spaugh case, supra, it is recited that the city ordinances were in force at the time, advising those outside the city who were permitted to connect with the city mains that whenever the territory in which they were located was incorporated within the city limits the water and sewer lines and "fixtures, equipment, easements, rights and privileges pertaining thereto" should become the property of the city. And that plaintiffs' subdivision having been laid out within one mile of the corporate limits of the city, knowledge of its ordinances in the respect set out in G.S. § 160-203 would be presumed.

Indeed in the Spaugh case, Devin, C. J., writing for the Court, after reviewing pertinent decisions of this Court, and of other jurisdictions, had this to say: "From an examination of the cases cited and the decisions based on the particular facts of those cases, it is apparent that no comprehensive rule emerges, and that this case and others of like nature must be considered and determined in the light of the pertinent facts presented by the record in each case."

While in the instant case it is agreed (1) that no written contract has been entered into for the purchase of the water and sewer lines here involved, and (2) that at the time these water and sewer lines were installed, the defendant had no charter provision nor ordinance providing any terms, condition, or event under which the lines installed outside its corporate limits by private owners and connected to its water or sewer system should become the property of the defendant if later incorporated into its city limits, and (3) that the city has "taken over, used and controlled" said lines as if installed by it originally, decisions of this Court hold that in such case plaintiff is not without a remedy—it may recover on basis of quantum meruit for the reasonable and just value of the water and sewer lines. Charlotte Lumber & Mfg. Co. v. City of Charlotte, 242 N.C. 189, 87 S.E.2d 204.

Moreover the transactions between plaintiffs and purchasers of lots in respect to water and sewer lines do not purport to be public dedications for the benefit of the city. Indeed text writers say that "there is no such thing as a dedication between owner and individuals. The public must be a party to every dedication. In fact the essence of a dedication to public uses is that it shall be for the use of the public at large. There may be a dedication of land for special uses, but it must be for the benefit of the public, and not for any particular part of it * * * In short the dedication must be made to the use of the public exclusively, and not merely to the use of the public in connection with a user by the owners in such measure as they may desire." 16 Am.Jur. 359, Dedication Section 15.

Therefore the judgment below is reversed, and the cause remanded to the end that judgment be entered in accordance with the stipulations of the parties as to reasonable value of the lines so taken over, used and controlled.

Error and remanded.