Lackey v. City of Burlington
Date Filed2022-12-20
Docket22-117
Cited0 times
StatusPublished
Syllabus
Motion to Dismiss Adverse Possession Estoppel
Full Opinion (html_with_citations)
IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-842
No. COA22-117
Filed 20 December 2022
Alamance County, No. 21CVS2
CINDY LACKEY and JOHN LACKEY, Plaintiffs,
v.
CITY OF BURLINGTON, Defendants.
Appeal by Plaintiffs from Order entered 26 July 2021 by Judge Mark A.
Sternlicht in Alamance County Superior Court. Heard in the Court of Appeals 8
September 2022.
Blanco Tackabery & Matamoros, P.A., by Henry O. Hilston, Peter J. Juran, and
Chad A. Archer, for plaintiffs-appellants.
Hartzog Law Group, LLP, by Dan M. Hartzog, Jr. and Katherine Barber-Jones,
and David R. Huffman, for defendant-appellee.
HAMPSON, Judge.
Factual and Procedural Background
¶1 Cindy Lackey and John Lackey (Plaintiffs) commenced this action on 4
January 2021 by filing a Complaint against the City of Burlington (the City) asserting
claims for Declaratory Judgment, Trespass, and Injunctive Relief to Abate a Nuisance
arising from Plaintiffsâ contention they acquired ownership of an alleyway abutting
their property through adverse possession and/or that the City was estopped from
LACKEY V. CITY OF BURLINGTON
2022-NCCOA-842
Opinion of the Court
accepting a dedication of the alleyway to public use. In response, the City moved to
Dismiss Plaintiffsâ Complaint pursuant to Rule 12(b)(6) of the North Carolina Rules
of Civil Procedure. On 26 July 2021, the trial court granted the Cityâs Motion to
Dismiss. Plaintiffs now appeal from the trial courtâs Order dismissing their
Complaint with prejudice. The Record on Appealâincluding the allegations in
Plaintiffsâ Complaint and the documentary exhibits attached thereto1âreflects the
following:
¶2 On 26 July 1956, Carlton and Etta Day (the Days) subdivided a tract of land
in Alamance County into seventeen residential lots known as the Rockford Acres
Subdivision. The seventeen lots were designated Lots A through Q, as shown on the
Rockford Acres Subdivision Plat (The Rockford Plat). The Rockford Plat proposed
two streets within the subdivision, including Hawthorne Lane, running in a generally
east to west direction and terminating into a dead-end alleyway located between Lots
B and C (the Alleyway). (R p.8, 23) The Alleyway is the contested land in the case
before us. The Rockford Plat contained the following dedication language:
THE STREETS ON THIS PLAT WILL BE DEDICATED TO THE
LOT OWNERS AND NOT TO THE GENERAL PUBLIC,
EXCEPT WHEN DEDICATION REQUESTED AND ACCEPTED
BY CITY OF BURLINGTON - FOR THE GENERAL PUBLIC.
1See Eastway Wrecker Serv., Inc. v. City of Charlotte, 165 N.C. App. 639, 642,599 S.E.2d 410, 412
(2004) (âSince the exhibits to the complaint were expressly incorporated by reference in
the complaint, they were properly considered in connection with the motion to dismiss as
part of the pleadings.â (citation omitted)).
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2022-NCCOA-842
Opinion of the Court
At the time the Rockford Plat was recorded, the Alleyway was located outside the
City limits in Alamance County.
¶3 On 2 April 1957, the Days conveyed Lots A and B in the Rockford Acres
Subdivision to Otis and Barbara Lackey (the Elder Lackeys) via a Warranty Deed.
This Deed contained the following dedication language:
The streets appearing on the above described plat are dedicated
for the benefit of all lot owners who purchase lots in reliance upon
said plat. In addition, the grantors herein expressly reserve the
right for themselves and their transferees to dedicate at any time
said streets, or any part thereof, to the general public.
This property is conveyed subject to, and with the benefits of, all
of the provisions and restrictions contained in that indenture
executed by Carlton Day and wife on 15 March 1957[.]
¶4 On 12 December 1963, the Elder Lackeys purchased property behind Lot B
from a private landowner. On 27 April 1978, the Elder Lackeys purchased an
additional lot from a neighboring developer, Collins & Young, Inc., behind the now-
larger Lot B. Lot B and these additional lots shared a contiguous border with the
Alleyway. That year, Collins & Young, Inc. also constructed, and Defendant accepted
the maintenance of, a sewer line under the contested land.
¶5 On 16 October 1997, the Elder Lackeys recorded a document entitled âFinal
Plat Property of R. Otis Lackey and wife, Barbara C. Lackeyâ (the Final Plat). The
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2022-NCCOA-842
Opinion of the Court
Final Plat re-divided and renamed Lot A and the now-larger Lot B to Lots 1 and 2,
respectively. The Final Plat contained the following language of dedication:
I, (we) hereby certify that I (we) am (are) the owner(s) of the
property, shown and described hereon, which was conveyed to me
(us) by deed as recorded in deed book SEE, page MAP, and that I
(we) hereby acknowledge this plat and allotment to be my (our)
free act and deed and do hereby dedicate to public use as streets,
rights-of-way, and easements forever, all areas so shown or
indicated on said plat.
The Final Plat denotes Hawthorne Lane, including the Alleyway, as a public right-
of-way. On 13 August 2002, the Elder Lackeys conveyed Lot 2, as shown on the Final
Plat, to Plaintiffs by General Warranty Deed. This conveyance was made âsubject to
easements, rights of way, and restrictive covenants, if any, appearing of record in the
Alamance County Registry.â
¶6 Plaintiffs allege, upon information and belief, the City annexed the Rockford
Subdivisionâincluding Plaintiffsâ Lots and the Alleywayâin 2003. Plaintiffs further
allege in 2003, the basement of their residence flooded because of inadequate
drainage from the Alleyway. Plaintiffs inquired of the State, County, and City and
were allegedly informed none of these governmental entities claimed ownership of
the Alleyway or were responsible for the flooding.
¶7 In 2004, Plaintiffs allege they contacted the City to schedule a public discussion
regarding Plaintiffsâ claim to the Alleyway. City Representatives informed Plaintiffs
that if they withdrew their proposed discussion from the agenda, the City would deal
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2022-NCCOA-842
Opinion of the Court
with the drainage issue, and Plaintiffs would be permitted to maintain a garden,
orchard, and low fence on the Alleyway. Plaintiffs withdrew their request and
constructed a garden, orchard, and low fence on the Alleyway. By 2005, the City had
not taken steps to improve drainage on the Alleyway or undertaken other
maintenance Plaintiffs alleged was promised by the City in 2004. Plaintiffs again
contacted the City with their concerns about the drainage issue, and the City
improved the drainage situation on the Alleyway.
¶8 On 29 November 2012, Plaintiffs also received title to Lot 1 via General
Warranty Deed.2 That same year, Plaintiffs allege, the City performed a title search
on the Alleyway and informed Plaintiffs they, along with the other owners of the
seventeen lots shown on the Rockford Plat, owned the rights to the Alleyway.
Plaintiffs sought the other lot owners to relinquish their ownership rights in the
Alleyway. However, Plaintiffs only received approval from owners of fourteen of the
seventeen lots. Subsequently, on 5 March 2020, the City Council voted to accept the
Alleyway for public use as dedicated in both the 1956 Rockford Plat and the 1997
Final Plat.
2Plaintiffs allege the Elder Lackeys conveyed Lot 1 via this Deed, however, the Deed attached
to the Complaint reflects the property was conveyed only by Barbara Lackey. Ultimately,
this conveyance is immaterial to the issues in the case at hand.
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Opinion of the Court
¶9 Plaintiffsâ Complaint sought Declaratory Judgments that: Plaintiffs were the
owners of the Alleyway; the City was equitably estopped from claiming the Alleyway;
and the City was barred from claiming the Alleyway by operation of the Doctrine of
Laches. The Complaint also sought injunctive relief against the City to enjoin the
Cityâs alleged trespass on the Alleyway and to abate the alleged nuisance resulting
from the Cityâs acceptance of the Alleyway for public use. The City filed a Motion to
Dismiss on 26 April 2021 asserting Plaintiffsâ Complaint should be dismissed
pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure
to state a claim upon which relief may be granted. The trial court granted the Cityâs
Motion to Dismiss and entered its Order on 26 July 2021 dismissing Plaintiffsâ
Complaint with prejudice. Plaintiffs timely filed written Notice of Appeal on 18
August 2021.
Issues
¶ 10 The two issues raised by Plaintiffs on appeal to this Court are whether the trial
court erred by dismissing their Complaint for failure to state a claim upon which
relief may be granted based on Plaintiffsâ allegations: (I) Plaintiffs own the Alleyway
through adverse possession; and (II) the City should be estopped from accepting
dedication of the Alleyway.
Analysis
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Opinion of the Court
¶ 11 A Rule 12(b)(6) motion to dismiss âtests the legal sufficiency of the complaint.â
Stanback v. Stanback, 297 N.C. 181, 185,254 S.E.2d 611, 615
(1979) (citing Sutton v.
Duke, 277 N.C. 94,176 S.E.2d 161
(1970)). âThe Motion to Dismiss will be allowed
only when the Complaint affirmatively shows that plaintiff has no cause of action.â
N.C. Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 439,206 S.E.2d 178, 182
(1974). âThe Motion [to Dismiss] is seldom an appropriate pleading in actions for
declaratory judgments, and will not be allowed simply because the plaintiff may not
be able to prevail.â Id. â[The Motion to Dismiss] is allowed only when the record
clearly shows that there is no basis for declaratory relief as when the complaint does
not allege an actual, genuine existing controversy.â Id.
¶ 12 âWhen considering a 12(b)(6) motion to dismiss, the trial court need only look
to the face of the complaint to determine whether it reveals an insurmountable bar to
plaintiffâs recovery.â Locus v. Fayetteville State Univ., 102 N.C. App. 522, 527,402 S.E.2d 862, 866
(1991) (emphasis in original). Documents attached to and
incorporated into a complaint are properly considered as part of a Rule 12(b)(6)
motion to dismiss. Eastway Wrecker Serv., Inc. v. City of Charlotte, 165 N.C. App.
639, 642,599 S.E.2d 410, 412
(2004). A Rule 12(b)(6) dismissal is proper where âthe
complaint discloses some fact that necessarily defeats the plaintiffâs claim.â Wood v.
Guilford Cnty., 355 N.C. 161, 166,558 S.E.2d 490, 494
(2002) (citation omitted).
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Opinion of the Court
¶ 13 On appeal of a Rule 12(b)(6) motion to dismiss, this Court conducts âa de novo
review of the pleadings to determine their legal sufficiency and to determine whether
the trial courtâs ruling on the motion to dismiss was correct.â Leary v. N.C. Forest
Prods., Inc., 157 N.C. App. 396, 400,580 S.E.2d 1, 4
, affâd per curiam,357 N.C. 567
,
597 S.E.2d 673, 674 (2003); see also Craig v. New Hanover Cnty. Bd. of Educ.,363 N.C. 334, 337
,678 S.E.2d 351, 354
(2009) (âUnder a de novo review, the court
considers the matter anew and freely substitutes its own judgment for that of the
lower tribunal.â (citation and quotation marks omitted)). As such, this Court also
views the allegations in the complaint in the light most favorable to the non-moving
party. Donovan v. Fiumara, 114 N.C. App. 524, 526,442 S.E.2d 572, 574
(1994)
(citation omitted). Further, this Court considers âwhether, as a matter of law, the
allegations of the complaint, treated as true, are sufficient to state a claim upon which
relief may be granted under some legal theory[.]â Harris v. NCNB, 85 N.C. App. 669,
670,355 S.E.2d 838, 840
(1987) (citation omitted).
I. Adverse Possession
¶ 14 Plaintiffs first argue the trial court erred in dismissing their claim of
ownership of the Alleyway on the basis of adverse possession. In their briefing to this
Court, however, Plaintiffs fail to identify specific factual allegations in their
Complaint that support their claim. Instead, Plaintiffs assert in conclusory fashion
that they âclearly pleadedâ each of the elements of adverse possession were met. We
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Opinion of the Court
disagree. Plaintiffsâ Complaint fails to allege facts supporting the elements of adverse
possession or to demonstrate on its face an insurmountable bar to relief on that basis
in several respects.
¶ 15 In North Carolina, â[t]o acquire title to land by adverse possession, the
claimant must show actual, open, hostile, exclusive, and continuous possession of the
land claimed for the prescriptive period (seven years or twenty years) under known
and visible lines and boundaries.â Merrick v. Peterson, 143 N.C. App. 656, 663,548 S.E.2d 171, 176
(2001). The prescriptive period for a party claiming adverse
possession under color of title is seven years. N.C. Gen. Stat. § 1-38 (2021). The
prescriptive period for a person claiming adverse possession without color of title is
twenty years. N.C. Gen. Stat. § 1-40 (2021).
¶ 16 First, Plaintiffsâ Complaint demonstrates on its face Plaintiffs fail to meet the
prescriptive period to establish their continuous possession of the Alleyway. As an
initial matter, it is not expressly alleged in the Complaint on what basis Plaintiffs
assert adverse possessionâthat is, whether they claim adverse possession under
color of title or without color of title. Plaintiffs also offer no guidance on what
prescriptive period applies in their briefing. Nevertheless, Plaintiffsâboth in their
Complaint and in briefingâappear to accept the premise they are required to meet
the 20-year prescriptive period for adverse possession without color of title. Plaintiffsâ
Complaint affirmatively shows Plaintiffsâ alleged possession of property alone cannot
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Opinion of the Court
meet the 20-year period. Plaintiffsâ Complaint alleges Plaintiffs did not acquire their
interest in the adjoining Lot 2 from the Elder Lackeys until 2002 and did not begin
using the Alleyway for their garden, orchard, and low fence until 2004.
¶ 17 Rather, Plaintiffsâ claim for adverse possession relies on their allegation
Plaintiffs âand their predecessors in interests possessed the [Alleyway] for far longer
than the twenty-year (20) statutory period for adverse possession, which period began
running in 1956 and 1997[.]â In this respect, Plaintiffs effectively argue they should
be permitted to âtackâ their alleged possession of the Alleyway on to the possession of
the Elder Lackeys. While it appears the general rule applied in other states is to
permit such tacking of possession to establish adverse possession, North Carolina has
adopted a minority position. See Cole v. Bonaparteâs Retreat Prop. Ownersâ Assân, 259
N.C. App. 27, 35,815 S.E.2d 403, 409
(2018).3 Under North Carolina law, a party
may only tack their possession on to that of a prior owner where the prior owner
actually conveys their interest in the allegedly adversely possessed property. Id. at
34, 815 S.E.2d at 409. If ownership is passed through a deed that does not include
the allegedly adversely possessed property, the new owner may not tack the prior
possession on to their own because, under North Carolina law, âprivity through a
3 It should be observed Plaintiffs cited Cole in support of their adverse possession argument
in their briefing to this Court. However, Plaintiffs failed to present any argument on this
rather crucial discussion in Cole, which is central to Plaintiffsâ argument.
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Opinion of the Court
deed does not extend beyond the property described therein.â Id. at 36, 815 S.E.2d at
410.
¶ 18 In this case, Plaintiffsâ Complaintâincluding the conveyances from the Elder
Lackeys to Plaintiffsâreflect the Elder Lackeys did not convey any interest in the
Alleyway to Plaintiffs, and thus, Plaintiffs may not tack their possession of the
Alleyway on to that of the Lackeys. Plaintiffs obtained Lot 2 adjoining the Alleyway
from the Lackeys in 2002. The General Warranty Deed makes no conveyance of the
Alleyway. Indeed, that deed makes express reference to the 1997 Final Plat, which,
itself, expressly shows the Alleyway as a public right-of-way. The deed also expressly
makes the conveyance subject to any rights-of-way shown on the public record. As
such, Plaintiffs, even on the allegations of their Complaint, are not permitted to tack
their ownership on to that of the Elder Lackeys to establish Plaintiffsâ continuous
possession of the Alleyway to meet the 20-year prescriptive period.
¶ 19 Second, Plaintiffsâ Complaint also alleges facts revealing that their alleged
possession of the Alleyway was not hostile. â âA âhostileâ use is simply a use of such
nature and exercised under such circumstances as to manifest and give notice that
the use is being made under claim of right.â â Daniel v. Wray, 158 N.C. App. 161, 172,
580 S.E.2d 711, 719(2003) (quoting Dulin v. Faires,266 N.C. 257, 261
,145 S.E.2d 873, 875
(1966)). âHowever, the hostility requirement is not met if the possessorâs
use of the disputed land is permissive.â Jones v. Miles, 189 N.C. App. 289, 292â93,
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Opinion of the Court
658 S.E.2d 23, 26(2008); see also New Covenant Worship Ctr. v. Wright,166 N.C. App. 96, 104
,601 S.E.2d 245, 251-52
(2004) (hostility requirement not satisfied
because the possessorâs use of the disputed property was permissive); McManus v.
Kluttz, 165 N.C. App. 564, 573-74,599 S.E.2d 438, 446
(2004) (hostility requirement
satisfied because the possessorâs use of the disputed property was not permissive).
¶ 20 Here, Plaintiffsâ allegations show their use of the Alleyway was done with
permission of the City and, thus, was not hostile to the Cityâs ownership rights in the
Alleyway. Plaintiffs alleged they approached the City about the Alleyway in 2004
and were given permission by the City to use the Alleyway property for a garden,
orchard, and low fence and that the City would repair the drainage from the Alleyway
into Plaintiffsâ property. Indeed, in 2005, Plaintiffs again requested the City repair
the drainage issue from the Alleyway and there is no allegation Plaintiffs ever
reasserted any claim of ownership over the Alleyway inconsistent with their
permissive use. Jones, 189 N.C. App. at 294,658 S.E.2d at 27
(âtrue ownerâs grant of
permission will defeat a possessorâs hostile use if the possessor takes no further action
to reassert [their] claim over the landâ).
¶ 21 Third, to the extent Plaintiffs attempt to claim adverse possession of the
Alleyway as against the other Rockford Acres lot owners, Plaintiffsâ Complaint
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Opinion of the Court
establishes Plaintiffsâ possession was neither hostile nor exclusive.4 Plaintiffsâ
Complaint alleges that in 2012, following the Cityâs own title search, Plaintiffs
unsuccessfully sought the other lot owners to relinquish their rights in the Alleyway.
As such, their claim of ownership or possession of the Alleyway was not exclusive.
Further, Plaintiffsâ acknowledgement of the other lot ownersâ continuing rights in the
property defeats any hostility of Plaintiffsâ possession. See New Covenant Worship
Ctr., 166 N.C. App. at 103-04,601 S.E.2d at 251-52
.
¶ 22 Thus, Plaintiffsâ Complaint reveals facts representing an insurmountable bar
to their claim for adverse possession of the Alleyway and demonstrates Plaintiffs are
not entitled to declaratory relief on this basis. Therefore, Plaintiffsâ Complaint fails
to state a claim for adverse possession of the Alleyway upon which relief may be
granted. Consequently, the trial court did not err by dismissing Plaintiffsâ claims
arising in adverse possession pursuant to Rule 12(b)(6) of the North Carolina Rules
of Civil Procedure.
II. Equitable Estoppel
¶ 23 In their second argument, Plaintiffs contend their Complaint alleged a claim
the City should be equitably estopped from accepting the dedication of the Alleyway.
At the outset, Plaintiffsâin their reply briefingâconcede they make no claim there
4 The other Rockford Acres lot owners are not parties to this action.
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Opinion of the Court
was any statutory withdrawal of the dedication of the Alleyway or of Hawthorne Lane
more generally under N.C. Gen. Stat. § 136-96 (2021). Plaintiffsâ argument that the
City should no longer be permitted to accept dedication of the Alleyway in particular
rests solely on their allegations of estoppel.
¶ 24 Specifically, Plaintiffs contend the allegations in their Complaint are akin to
the facts in Lee v. Walker, 234 N.C. 687,68 S.E.2d 664
(1952). There, a property
owner subdivided a tract of land as shown on a map entitled a Map of Vineland,
including lots, blocks, alleys, streets, and avenues. Id. at 697,68 S.E.2d at 671
. The
name of Vineland was later changed to Southern Pines, and an identical map was
recorded. Id. Southern Pines was later chartered by the General Assembly as the
Town of Southern Pines. Id. The Town Charter required the Town Commissioners
to âprovide for repairing the streets, sidewalks and alleys and cause the same to be
kept clean and in good order[.]â Id. at 690,68 S.E.2d at 666
. In response, the Town
passed and recorded a resolution âto the effect that the town did thereby relinquish
âall right and title that the town may have in the alleyways and parks within each
square or block within the town forever[.]â â Id. After this resolution, the Town
regularly approved building permits that encroached on alleyways in the Town. The
plaintiff in Lee applied for a building permit from the Town of Southern Pines. The
Town denied the permit request on the basis it would require closing an alley on the
property which the Town claimed was public. Id. at 689,68 S.E.2d at 665
. The North
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Carolina Supreme Court ultimately held the Town was estopped from asserting any
right to the alleyway at issue in that case. Id. at 697,68 S.E.2d at 671
. Importantly,
the Supreme Court observed: âthe action of the Board [passing the resolution
relinquishing the Townâs rights in alleyways] was tantamount to a formal rejection
of the offer of dedication and was so construed and regarded by the Town of Southern
Pines, the original dedicator and his successors in title for more than fifty-eight years
prior to the time this controversy arose.â Id. at 696,68 S.E.2d at 670
. The Court also
noted the Town had routinely treated alleyways as private property and assessed
taxes on them as such and assessed owners for the pro rata cost of paving the alleys.
Id.
¶ 25 The allegations in Plaintiffsâ Complaint are, however, distinguishable from the
facts of Lee. Here, there is no allegation the City ever enacted any formal resolution
or took action to relinquish any right in the Alleyway. Rather, Plaintiffs point to
allegations that in 2002, they inquired of the City as to the ownership of the Alleyway
from the City, and the City responded it did not own the Alleyway. Plaintiffsâ
Complaint also alleges upon information and belief, however, the City did not annex
the property, including the Alleyway, into City limits until 2003. Subsequently, in
2004 and again in 2005, the Complaint alleges the City agreed to undertake
maintenance on the Alleyway to improve drainage on Plaintiffsâ property and
permitted Plaintiffs to operate a garden in the Alleyway. These actions are not
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Opinion of the Court
âtantamount to a formal rejection of any offer of dedication.â Id.The same is true of the 2012 title search by the City, after which the City informed Plaintiffs they would need to obtain relinquishment from the other lot owners to the Alleyway. This was not âtantamount to a formal rejection of any offer of dedicationâ by the City, but, in fact, an acknowledgement of the dedication in the Rockford Plat from 1956 which dedicated the Alleyway to the use of the lot owners until the City accepted dedication of the Alleyway for public use. There is likewise no allegation that the City has otherwise treated the Alleyway as private property by taxing the property or requiring Plaintiffs to pay the cost of any improvements or maintenance on the Alleyway. Furthermore, there is no allegation in the Complaint that the Cityâs actions in this regard are inconsistent with any prior action. Moreover, there is no allegation the City acquiesced to the Alleyway being included or conveyed as private property. Again, to the contrary, the 1997 Final Plat referenced in the deeds from the Elder Lackeys to Plaintiffs expressly identifies the Alleyway as a public right-of- way. See City of Salisbury v. Barnhardt,249 N.C. 549, 556
,107 S.E.2d 297, 302
(1959) (â âto constitute an estoppel against the public the acts relied on must be such
as to work a fraud or injustice if the public is not held to be estopped. Obviously, one
who knowingly encroaches upon a highway is not within the protection of the rule. If
the boundaries are fixed by a recorded map, subsequent purchasers of lots abutting
thereon are charged with notice thereof, and the fact that they purchase under the
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Opinion of the Court
impression that a fence encroaching on the street is on the boundary line thereof will
not affect the public rights, provided the municipality has done nothing to mislead
them.â â (quoting 25 Am. Jur. 413, Highways, § 115)).
¶ 26 Thus, the allegations in Plaintiffsâ Complaint are insufficient to establish a
claim that the City should be estopped from accepting dedication of the Alleyway
under Lee. Therefore, Plaintiffs have failed to state a claim for declaratory relief upon
which relief may be granted on their theory of equitable estoppel. Consequently, the
trial court did not err by granting the Cityâs Motion to Dismiss pursuant to Rule
12(b)(6) of the North Carolina Rules of Civil Procedure.
Conclusion
¶ 27 Accordingly, for the foregoing reasons, we affirm the trial courtâs 26 July 2021
Order granting the Cityâs Motion to Dismiss pursuant to Rule 12(b)(6) dismissing
Plaintiffsâ claims with prejudice.
AFFIRMED.
Judges COLLINS and JACKSON concur.