June 2, 1980
Subject:
Streets and Highways; Closing unopened streets offered for dedication in a subdivision; Counties
Requested By:
William P. Mayo County Attorney Beaufort County
Question:
Does N.C.G.S. 153A-241 apply to closing a portion of a street in a subdivision that has been offered for dedication but never accepted by a public authority nor opened for public use?
Conclusion:
No. Subdivision streets are not open to the public as a matter of right until they have been accepted on behalf of the public in a manner recognized by law. County authorities can only proceed under N.C.G.S. 153A-241 to close a road after an offer of dedication has been accepted and public rights have attached.
N.C.G.S. 153A-241 provides a procedure by which a county can permanently close a public road or easement if a closing is in the public interest and would not deprive anyone of access to their property. The applicability of this statute depends on whether the offer of dedication has ever been accepted so that the public has acquired any rights in the road or easement.
In the situation presented by the Beaufort County Attorney, the adjoining property owners are seeking to close a one block portion of 5th Street in the Pamlico Beach – Lot Subdivision. There are only two adjoining property owners on either side of 5th Street running from Pamlico Drive to the Pamlico River. The map of the subdivision shows the property to have been surveyed in January, 1918, and the corners set and retraced in November 1930. The Beaufort County Registry did not put the date of recording on older maps, but according to the chronology of the indexing the map would have been recorded in the early 1930’s.
In Steadman v. Pinetops, 251 N.C. 509, 515 (1960), the court stated the general rule is that when lots are sold and conveyed by reference to a map showing the division of a tract of land into subdivisions of streets and lots, the streets become dedicated to public use and the purchasers of lots acquire the right to have all streets kept open. The court went on to say that the dedication "insofar as the general public is concerned . . . is but a revocable offer and is not complete until accepted, and neither burdens nor benefits with attendant duties may be imposed on the public unless in some proper way it has consented to assume them." Supra.
No public authority having jurisdiction has formally or informally accepted the offer of dedication of the one block of 5th Street in the Pamlico Beach – Lot Subdivision. The county has done nothing to open or maintain the street since it was first offered for dedication on the map. The two adjoining property owners agree that the street has never been opened. For a long time a shallow drainage ditch has blocked access to the street from Pamlico Drive. Before an offer of dedication for a street has been accepted, only private rights attach and the county would have no authority under N.C.G.S. 153A-241 to close the street. The parties would have to proceed under
N.C.G.S. 136-96 or case law.
Rufus L. Edmisten Attorney General
Evelyn M. Coman Associate Attorney