Motor Vehicles; Streets and Highways; Subdivision Streets; Public Streets

Subject:

Motor Vehicles; Streets and Highways; Subdivision Streets; Public Streets

Requested By:

Edward H. McCormick County Attorney Johnston County

Question:

Are the motor vehicle laws relating to speeding, drunken driving and reckless driving applicable to subdivision streets open to vehicular traffic and located outside of municipalities but which are not on the State Highway System?

Conclusion:

No. The motor vehicle laws listed are applicable only to "streets or highways" open to the public as a matter of right and to "public vehicular areas" as defined in Chapter 20. The 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, nor do they come within the statutory definition of "public vehicular area".

The county attorney for the County of Johnston inquires as to the status of the subdivision streets outside of municipalities in Johnston County which are not on the State Highway System. He advises there is no subdivision ordinance in effect as it relates to the streets nor has there been an acceptance of the offer of dedication of the streets by a public authority. He raises the question of the applicability of drunken driving, reckless driving and speeding laws to these streets.

Chapter 20 of the General Statutes makes each of the foregoing offenses applicable to "highways" and "public vehicular areas". G.S. 20-138; G.S. 20-140; G.S. 20-141. Chapter 20 contains the following pertinent definitions for the purpose of the Chapter.

G.S.

20-4.01(13) – "Highway or Street – The entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purpose of vehicular traffic. The terms "highway" or "street" or a combination of the two terms shall be used synonymously."

G.S.

20-4.01(30) – "Private Drive or Driveway – Every road or driveway not open to the use of the public as a matter of right for the purpose of vehicular traffic."

G.S.

20-4.01(32) – "Public Vehicular Area – Any drive, driveway, road, roadway, street, or alley upon the grounds and premises of any public or private hospital, college, university, school, orphanage, church, or any of the institutions maintained and supported by the State of North Carolina, or any of its subdivisions or upon the grounds and premises of any service station, drive-in theater, supermarket, store, restaurant or office building, or any other business,

residential, or municipal establishment providing parking space for customers, patrons, or the public."

The question is presented as to whether or not these streets are "open to the public as a matter of right" and thus making the listed motor vehicle laws applicable to them. Our court on several occasions has dealt with the question of the right of the public in subdivision streets which have not been accepted by public authorities in a recognized manner. In the case of Chesson v. Jordan, 224 N.C. 289, 291, our court stated that:

"According to the current of decisions in this Court there can be in this State no public road or highway unless it be one either established by the public authorities in a proceeding regularly instituted before the proper tribunal; or one generally used by the public and over which the proper authorities have asserted control for the period of twenty years or more; or one dedicated to the public by the owner of the soil with the sanction of the authorities and for the maintenance and operation of which they are responsible." (Emphasis added)

In the case of Owens v. Elliot, 258 N.C. 314, 317, the Supreme Court stated as follows:

"Where lots are sold and conveyed by reference to a map which represents a division of a trace of land into subdivisions of streets and lots, such streets become dedicated to the public use, and a purchaser of a lot located in the subdivision acquires the right to have all and each of the streets kept open and it makes no difference whether the streets be in fact open or accepted by the appropriate public authority. However, the dedication referred to in the preceding sentence, insofar as the general public is concerned, without reference to any claim or equity of the purchasers of lots in the subdivision, 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." (Emphasis added)

The case of Owens v. Elliot, supra involved the right of a person who purchased a lot outside of the boundaries of the subdivision, with respect to the right in the streets within the subdivision. The court held as follows:

"Even if the Street has been opened and is in use for the purposes of the persons owning lots in the subdivision, if the offer of dedication has not been accepted by the proper public authorities or in a manner recognized by law, the owner of the lot outside the subdivision has no right to use the street by reason of any purported dedication . . . Where streets have been laid out and opened in a duly established subdivision and the proffered dedication of the streets has not been accepted on behalf of the general public in a manner recognized in law, if a member of the general public, not a resident of or owner of land in the subdivision, uses the streets for his own purposes and convenience, such use is at best permissive and not of right." (Emphasis added)

The Supreme Court, in 1965 in line with the prior cases, stated that:

"The streets of a subdivision are not dedicated to the public merely by reason of the subdivision of the land and the recordation of a map thereof. This is only an offer to dedicate; dedication to the public is complete only when the offer is accepted by the responsible public authority, and neither the burdens nor benefits with attendant duties may be imposed on the public unless in some proper way it has consented to accept and assume them." Wofford v. Highway Commission, 263 N.C. 677 683. See also Oliver v. Ernul, 277 N.C. 591, 598. For a further discussion see 41

N.C.L. 875 and 42 N.C.L. 706.

In view of the holding by the Supreme Court that the use by the public of these subdivision streets prior to acceptance by a public authority is a permissive use and is not as a matter of right, the streets inquired about do not come within the definition of the words "streets or highway" contained in Chapter 20. Neither are the streets included in the statutory definition of "public vehicular area". A "private drive" is defined as one not opened to public as a matter of right. Therefore, it is the opinion of this Office that for the purpose of motor vehicular laws the streets are "private drives" and the provisions of the reckless driving, the drunken driving and speeding statutes (G.S. 20-141, G.S. 20-140 and G.S. 20-138) are not applicable to the subdivision streets which have not been accepted on behalf of the general public in a manner recognized by law.

This Office suggests that the legislature clarify the application of the motor vehicle laws to these streets. This opinion modifies an earlier opinion appearing in 44 NCAG 314.

Rufus L. Edmisten Attorney General

Eugene A. Smith Special Deputy Attorney General