STREETS.

MOOSE v. CARSON.

[104 NORTH CAROLINA, 431.]

IF A CONVEYANCE IS MADE OF A TOWN OR CITY LOT as Bounded BY STREETS OR ALLEYS marked on a map or plat, and the grantee enters into possession, and expends money in improving the property, he is entitled to a right of way over such streets or alleys as appurtenant to the land, and any subsequent conveyance by his grantor, or those claiming under him, of a portion of such streets or alleys by which the land is bounded, will be held void. DEDICATION OF STREETS to PUBLIC USE IS Irrevocably MaDE when the owner of land including such streets lays out the land into lots and streets, and induces persons to buy and build upon lots adjacent to such streets, though they may not have been accepted by the anthorities of the town or city in which they lie.

STREETS AND PUBLIC SQUARES. ADVERSE OCCUPANCY of a street or public square which has been dedicated to public use will not confer any right as against the public.

STREETS, SALE OF, BY TOWN OR CITY. OWNERS OF LANDS FRONTING UPON ▲ Public StreET in which they have an easement, arising from their having purchased all such lands from the former owner thereof, and of such streets, and procured a conveyance thereof in which their lots are designated as bounded by such streets, cannot be deprived of their rights by a sale for the benefit of the town, which was, in effect, though not in name, one of the grantors through whom they claim title. STREETS, VESTED INTEREST OF LOT-OWNERS THEREIN. THE LEGISLATURE CANNOT DEPRIVE A LOT-OWNER of his right in a public street, acquired by his having bought, occupied, and improved the land adjacent thereto after such land had been laid out in lots and streets, and when his conveyance describes his lot as being bounded by such streets. The lotowner's interest in the street is just as indefeasible and secure from legislative impairment as is his title to his lot.

ACTION to recover possession of lands in the town of Taylorsville. The town site of that town was originally vested in James Thompson, chairman of the court of common pleas and quarter session, and his successors in office, and was laid out in lots and blocks bounded by streets and alleys. While so laid out, the defendants, or their grantors, bought the lots fronting on East Back Street as early as the year 1848, and entered into their occupancy in the year 1853. The land in controversy in this action was a part of that street, and the title of the plaintiffs was based on a sale and conveyance made in 1888 by the authorities of the town, claiming the right to make such sale under an act of the legislature of the state. The trial court directed judgment to be entered for the defendants, and thereupon the plaintiffs appealed.

E. C. Smith, for the plaintiffs.

R. Z. Linney, for the defendants.

AVERY, J. It is a well-settled principle that where a corporation, acting through its properly constituted authorities, or an individual, sells or conveys a town or city lot bounded by streets or alleys marked out on a plat, and the grantee enters upon it, and expends money in improving it, he is entitled to a right of way over such street or alley as appurte nant to the land, and any subsequent conveyance by his grantor, or those claiming under him, of the portions of such streets or alleys by which the grantee's lot is bounded, will be held void: Pratt v. Law, 4 Myer's Fed. Dig., tit. Contracts, 1046; Chapin v. Brown, 15 R. I. 579; Sarpy v. Municipality, 9 La. Ann. 597; 61 Am. Dec. 221; Port Huron v. Chadwick, 52 Mich. 320; Harrison v. Augusta Factory, 73 Ga. 447.

The grantor thus dedicates the land covered by a street to the use of the public, and will be precluded, by such appropriation, from reasserting any right to the actual possession of the land, at least so long as it remains in the public use: Kennedy v. Jones, 11 Ala. 63; Proctor v. Lewiston, 25 Ill. 153; Adams v. Saratoga, 11 Barb. 414; Penny Pot Landing v. Philadelphia, 16 Pa. St. 79; In re Pearl Street, 111 Pa. St. 565.

When, by laying off streets, third parties have been induced to buy lots adjacent to them, and build on the lots, by an individual grantor, the dedication to the public use has been held irrevocable, although the streets may not have been formally accepted by the authorities of a town in which they lie: Grogan v. Town of Hayward, 4 Fed. Rep. 161.

No one can acquire, as a general rule, by adverse occupation, as against the public, the right to a street or square dedicated to the public use: Hoadley v. San Francisco, 50 Cal. 265; People v. Pope, 53 Cal. 437.

We may deduce, from the rules of law already stated, the further principle, that the owners of a lot having a property or easement appurtenant in the adjacent streets, with reference to the advantages of which they expended their money for the land and the improvements put upon it, cannot be deprived of their rights by a sale for the benefit of the town that was, in effect, though not nominally, one of the grantors through whom they claim title; nor has the legislature the power to deprive them of such appurtenant rights by authorizing such grantor, whether a person or a corporation, to again enter upon and sell such streets to others. The general assembly cannot, without a violation of the constitution, divest, or provide for divesting, by law, the right of a person to his property, for

the purpose of vesting such right in another person or corporation, merely for private use, at all, and it has no power, under the organic law, to provide for taking private property for public purposes without just compensation, to be ascertained in a mode pointed out by the law.

The appurtenant right of the owner of a lot in the street that formed its boundaries at the time when he, or those under whom he claims, bought it originally, with reference to such outlets, is protected against the reassertion of the grantor's claim to it just as fully as is his title to the lot conveyed, even though the state may undertake by law to sanction the reentry on the streets by one claiming under his title. Neither the mayor of the town of Taylorsville, nor the county commissioners of Alexander County, by virtue of the authority derived from section 1, chapter 86, Private Laws of 1887, to hold lands conveyed to the town, nor under the more explicit power to sell streets that, in terms, is given by chapter 8, Private Laws of 1889, are empowered to make a valid conveyance to any part of a street, with reference to which, as a boundary, the defendants, or those under whom they claim, bought lots in the year 1848 and improved them in 1853: Pratt v. Law, 4 Myer's Fed. Dig., tit. Contracts, 1046; Adams v. Chicago etc. R. R. Co., 39 Minn. 286; 12 Am. St. Rep. 644; Brooks v. Riding, 46 Ind. 15.

The said mayor or commissioners cannot diminish the width of such streets from sixty-six feet, as laid off when the lots were originally sold, to sixteen, by conveying fifty feet of East Back Street, extending from North Main to North Back Street, and leaving an alley of only sixteen feet as a pass-way for the defendants along their front. Their ancestor took with his title all the appurtenant advantages of a street sixty-six feet wide, and the tendency of converting it into an alley would or might be to impair the value of their property for the benefit of the town, and without compensation to them: Adams v. Chicago etc. R. R. Co., 39 Minn. 286; 12 Am. St. Rep. 644; 2 Dillon on Contracts, sec. 675, p. 674, note 1.

The defendants do not own the fee in the street on their front, but hold only an appurtenant easement therein; and the municipal corporation that sold the lots occupies the same relation to them as would an individual grantor who had originally sold to them, or to those under whom they claim, and he could neither with nor without authority purporting to be derived from the legislature have reasserted his right to

the streets laid out by him before selling: New Orleans v. United States, 10 Pet. 717; Grogan v. Town of Hayward, 4 Fed. Rep. 161.

The plaintiffs have shown no such title as would warrant the court in granting a writ of possession. If the fee were vested in the town, which is not conceded, there would still be wanting in the plaintiffs, its grantees, the right to prevent possession and occupancy of a street dedicated to the public: City of Cincinnati v. Lessee of White, 6 Pet. 431.

It is not necessary to decide whether the mayor of the town of Taylorsville, by joining the chairman of the board of county commissioners, could, by virtue of a private sale, make a valid conveyance of any land belonging to the town, when the statute (Code, sec. 3824) gave the power to the "mayor and commissioners of any incorporated town to sell at public outcry, after thirty days' notice." If the original conveyance did not operate to pass the title to the street when executed, the legislature could not, pending this suit, impart to it such vitality as to relate back to the commencement of the action, and establish plaintiff's right to recover. The municipality derives its powers from the express grant of the legislature, and exercises and enjoys them subject to the legislative right of revocation; but in controlling the property of the corporation the general assembly is restricted by the fundamental principle that private property cannot be taken for public use without just compensation, nor can a town be invested with authority to violate its implied contract (either directly or through its grantee, who is in privity with it) to provide a street sixty-six feet wide for the advantage of a lot conveyed by one who held in trust for the benefit of the town.

Affirmed.

STREETS-DEDICATION.

As to what is essential to and what constitutes a valid dedication to the public, see Board of Supervisors v. Seal, 66 Miss. 129; 14 Am. St. Rep. 545, and note 549, 550; People v. Reed, 81 Cal. 70; 15 Am. St. Rep. 22, and note.

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STREETS ABUTTING LOT-OWNERS EASEMENTS. - As to the rights of abutting lot-owners in the streets of a city, see Adams v. Chicago etc. R. R. Co., 39 Minn. 286; 12 Am. St. Rep. 644, and note 653, 654.

STREETS-ADVERSE POSSESSION. -No title can be acquired in public streets by adverse possession; Yates v. Town of Warrenton, 84 Wis. 337; 10 Am. St. Rep. 860, and note.

EVERETT V. RABY.

[104 NORTH CAROLINA, 479.]

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EXECUTION, WHAT EQUITIES NOT SUBJECT TO. - If lands are purchased and paid for by a debtor, who, for the purpose of defrauding his creditors, takes the title in the name of another, the debtor has no interest in such land subject to execution sale. The remedy of his creditors is by an action in the nature of a bill in equity to subject such lands to the pay. ment of their debts.

A. M. Fry, for the plaintiff.

F. C. Fisher, for the defendant.

SHEPHERD, J. The complaint alleges that J. B. Raby purchased and paid for the land described in the complaint, but, for the purpose of defrauding his creditors, procured the title to be made to his father, the defendant. Judgments were obtained against the said J. B. Raby, and, under them, executions issued, and were levied upon the lands. The plaintiff purchased at a sale under these executions, and brings this action for the possession, and also to have the defendant declared a trustee for his benefit. No answer was filed, and judgment was rendered in accordance with the prayer of the complaint, from which the defendant appealed.

It is hardly necessary to cite authorities to show that the interest of J. B. Raby could not be sold under execution. The distinction between an estate in equity and a mere right in equity, in this respect, is well stated in Hinsdale v. Thornton, 75 N. C. 382. In this case, Pearson, C. J., says: "When one has an estate in equity, viz., a trust estate, which enables him to call for the legal estate without further condition save the proof of the facts which establish his estate, this trust estate is made the subject of sale under fieri facias. But where one has only a right in equity to convert the holder of the legal estate into a trustee and call for a conveyance, the idea that this is a trust estate, subject to sale under fieri facias, is new to us." In the present case, the judgment debtor did not have even a right in equity, as it is alleged that the trust was infected with fraud; in which case the court would not act at the instance of either party: Page v. Goodman, 8 Ired. Eq. 16.

There can be no question as to the sale being void, and that the remedy of the creditors is an action in the nature of a bill in equity to subject the land to the payment of their debts: Jimmerson v. Duncan, 3 Jones, 538; Gowing v. Rich, 1 Ired. 553;