Can the city make a road private without any notice or record?

Full question:

I purchased commercial property on a right-of way. It is on a map of the tract dated in 1924. There is an easement that is open to a major road and that easement has existed since 1935. The easement has been maintained by the State of North Carolina since 1935. The property changed hands by the sale of a company in 1982 and the property was sold to the city. The city sold the property to a church. Six months later the church blocked the easement. According to record, in 1989 the city did not accept the street with three owners, seven business locations to maintain and stated that the complete street became a private street. There was no 160A-299 form used. The county register of deeds has no record of the street becoming private. My deed implies that the street and road were shown on the plat. Can this be a private road without closing the street legally?

• Category: Real Property
• Subcategory: Easements
• Date: 04/07/2025
• State: North Carolina

Answer:

Section160A 299 of the North Carolina General Statutes provides for the procedure for permanently closing streets and alleys by a municipality. From the information you gave above, that procedure apparently was not followed.

A "dedication" is the setting aside of land to the public use. It also involves a form of transfer by an owner to the public of a fee or lesser interest in land. When the owner of an interest in land transfers to the public a privilege of use of such interest for a public purpose, there is a dedication.

Dedication may either be express or implied. A party intending to dedicate land for public use may do so by an explicit oral or written declaration of the owner of his purpose to devote the land to the public use. Such an express dedication is usually accomplished by deed or written instrument. Apparently there is nothing of record showing the property in question being dedicated as an easement for public use.

One of the more common purposes of a dedication is to appropriate land for a highway or street. There are two kinds of dedications of private land to public use: those made under controlling principles of common law, and those resulting from compliance with the provisions of specific statutes. A distinction between a statutory and a common-law dedication is that the former operates by way of grant and the latter by way of an estoppel. NOTE: A valid common-law dedication of land as public roadway may be effected where the land is shown on a plat, which is then filed, and lots are sold in reference to the plat. Another distinction is that a right conferred by common-law dedication is usually a mere easement, while in most statutory dedications the fee of the property is in the public authority to which the dedication was made.

Some legislatures have provided statutory modes of dedication. However, dedication statutes are not necessarily exclusive of other methods of dedication. Even in the same jurisdiction, a dedication of land to public use often may be made either according to the common law or pursuant to statute.

NOTE: Purchasers of property according to a plat designating part of the property as dedicated to streets or other public uses are entitled to rely on the dedication. No rights to the actual possession of the land may be asserted by the owner, at least while the land remains in public use. The purchasers are entitled to the free and immediate use of those streets and alleys designated on the plat that are necessary for the complete enjoyment of their property. They acquire the right to have such streets kept open, even though dedication may not be complete because of a lack of acceptance of the streets by the public authorities. The right acquired by the purchaser is a private easement over those areas set aside and designated as public ways, and this right attaches immediately upon his or her purchase of the property. The grantor cannot make a new plat or map substituting new streets for old, or change the location or width of streets, without the consent of the purchasers.

NOTE: A dedication once completed is in its nature irrevocable. The dedicator cannot resume control of or convey the land free from the public easement. Nor can a dedicator or successor reclaim the use of the property, unless the object and purpose of making the dedication has completely failed. Even though a common-law dedication does not pass the legal title to the land out of the party making it, it is sufficient to defeat an action for recovery of possession of property against those using it in accordance with the purpose and object for which it was dedicated. The dedication is permanent unless the land so dedicated is abandoned by the public or by the proper authority, or the highway has been vacated in due course of law.