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Whichard v. Oliver

Filed: March 2, 1982.

JOHN A. WHICHARD AND WIFE, CHRISTINE A. WHICHARD; JACK L. WALLACE AND WIFE, JUNE B. WALLACE; RAY T. TUTEN AND WIFE, REBECCA A. TUTEN; LEON H. WINGATE AND WIFE, ALICE A. WINGATE; MAXEY T. BUNCH AND WIFE, NANCY B. BUNCH; EDWARD J. MULLEN AND WIFE, JACQUELINE B. MULLEN; RODNEY T. BOWEN AND WIFE, JEAN E. BOWEN; CONNELL E. PURVIS AND WIFE, JUANITA E. PURVIS; ALTON N. WOOLARD AND WIFE, DARLENE O. WOOLARD; AND CLARENCE M. CARTWRIGHT AND WIFE, BARBARA CARTWRIGHT
v.
RONALD G. OLIVER AND WIFE, BETTY ORMOND OLIVER



Appeal by defendants from Brown, Judge. Judgment entered 28 December 1980 in Superior Court, Beaufort County. Heard in the Court of Appeals 2 February 1982.

Wells, Judge. Judges Martin (r. M.) and Webb concur.

Wells

Defendants first contend that the trial court erred in denying their motion to dismiss the claims of those plaintiffs who did not testify. Defendants argue that since plaintiffs did not bring this action as a Rule 23 class action, there was insufficient evidence to support the claims of the non-testifying plaintiffs.

Plaintiffs were entitled to sue collectively, without being certified as a class for the purposes of a G.S. 1A-1, Rule 23 class action,

under the provisions of G.S. 1A-1, Rule 20(a) Permissive Joinder. --

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all parties will arise in the action. . . . Judgment may be given for one or more of the plaintiffs according to their respective rights to relief. . . .

Plaintiffs asserted their rights severally, as individual lot owners, each with the privilege of using land dedicated to owners within Bayview. Their claims arose out of the same occurrences, i.e. defendants' attempted purchase of an interest in and their cordoning-off of the lots, and raised the same factual and legal issue: the existence of a valid easement by dedication versus defendants' right to sole possession and use of the property. The recorded deeds and plats introduced by the testifying plaintiffs are competent, substantive evidence of the ownership and intended use of the disputed land, which support all plaintiffs' claims. See G.S. 8-6; G.S. 8-18; 1 Stansbury's N.C. Evidence § 77 (Brandis Rev. 1973); Webster, Real Estate Law in North Carolina, § 284(b). Similarly, the testimony of plaintiffs Jack Wallace and John Whichard and adverse witness Betty Oliver, plus the interrogatories and requests for admissions, provided sufficient evidence as to all the plaintiffs' claims to withstand defendants' motion to dismiss. This assignment is overruled.

Defendants' next two exceptions relate to the sufficiency of plaintiffs' evidence in proving the existence of an implied easement by dedication on the land to which defendants assert title. The stipulated evidence shows that this development bordering on the Pamlico River was established between 1922 and 1925 under the name of "Bayside". In 1925, the land was conveyed to The Bayview Company, and its name was changed to "Bayview". In 1926, a map entitled "Bayview on the Pamlico" was recorded, from which lots were conveyed by reference. This plat describes a park-like area along the riverfront, with captions designating a bandstand, pavilion, garden, and hotel. The "park" area on the 1926 map includes the disputed lots. The Bayview Company was placed in receivership in 1932, and then sold to Bayview Incorporated.

In approximately 1940, Bayview, Inc. recorded a similar map of the development and sold lots with reference to it. This second map contains markings for a "beech" (sic) at approximately the same location as the "park" on the first map. For a 1976 quitclaim deed to the lot, which includes approximately 50 feet of waterfront on the Pamlico River, defendants paid $100. Defendants' deed contains a specific reference to the 1940 recorded Bayview, Inc. map. Each of plaintiffs' deeds specifically refers to one of the two recorded maps.

Defendants contend that certain facts tend to negate the property's dedication. Private cottages have been built on areas designated on the plat for the hotel and garden. A boat ramp was built on the disputed lots some years ago, and small fees have been charged for its use. A neighbor's commercial fishing equipment has been stored on the lot from time to time. Defendants assert that when they bought these lots, the boat ramp was in a ...


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