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NO. COA00-221 NORTH CAROLINA COURT OF APPEALS Filed: 19 June 2001

THE TOWN OF HIGHLANDS, a North Carolina Municipal Corporation, on behalf of its citizens and individually as an owner of property in the Town of Highlands; and DENNIS F. WILSON, Plaintiffs, v. GROVER WILLIAM EDWARDS, HELEN LOUISE MEISEL, and VIRGINIA MAE FLEMING; HOWARD WAYNE BROWN and wife, JANIE CRESWELL BROWN; EARL MONROE JONES, TRUSTEE OF THE EARL MONROE JONES TRUST; ARTHUR A. LEWIS and wife, JANE A. LEWIS; JAMES LUTHER RAMEY and wife, MAXINE BROWN RAMEY; LOUIS W. REESE, MARTHA R. LAMB, JOSEPH RONALD REESE and DANIEL Q. REESE; RANDOLPH T. SHAFFNER and wife, MARGARET RHODES SHAFFNER; ANN KELSEY STEWART; PETER KELSEY STEWART; PETER KELSEY; HARLAN P. KELSEY, III; SETH LOW KELSEY, JR.; JOSEPH RIDGEWAY KELSEY; CHARLES SAWYER; KATHERINE HART ZIMMERMAN; SALLY HART WHITING; JOHN HART, JR.; THE UNKNOWN HEIRS OF SAMUEL T. AND KATHERINE E. KELSEY and THE CHARLESTON LIBRARY SOCIETY, Defendants Appeal by defendants from judgment entered 19 July 1999 by Judge Raymond A. Warren in Macon County Superior Court. the Court of Appeals 12 January 2001. Coward, Hicks & Siler, plaintiffs-appellees. P.A., by William H. Coward, for Heard in

Jones, Key, Melvin & Patton, P.A., by Richard Melvin, for defendants-appellants. CAMPBELL, Judge. The Town of Highlands ("Town") and an individual citizen owning property in the Town (jointly, "plaintiffs") brought a declaratory judgment action seeking a determination as to the rights, duties, and liabilities of the parties concerning portions of certain streets which had never been opened by the Town.

-2Defendants are residents of the Town who owned property which would be affected by the opening of these streets. At the close of all

the evidence, the trial court directed a verdict in favor of plaintiffs and entered a judgment in which the court answered three crucial "issues of fact," on which plaintiffs bore the burden of proof, in favor of plaintiffs.1
1

The trial court ruled that there

These three issues and the trial court's answers were as follows: 1. Did S. T. and Katherine Kelsey, during their lifetimes, offer for public use the rights of way as shown on the survey by W. Edward Hall dated March 19, 1998 including the third revision dated October 10, 1998, for 5th Street, 4 1/2 Street and Poplar Street, including the unimproved portions of said rights of way? The burden of proof on this issue is on the plaintiffs. On this issue the Court finds that the evidence is almost wholly documentary in nature, that no human party survives from the time of the alleged dedication, that the evidence is credible and that only one permissible legal inference can be drawn from the evidence presented and that evidence proves as a matter of law that the Plaintiffs are entitled to an affirmative answer to this issue. 2. Did the town of Highlands accept the proposed dedication? The burden of proof on this issue is on the Plaintiffs. On this issue the Court finds that the evidence is almost wholly documentary in nature, that no human party survives from the time of the alleged original dedication or the early years of the town, that the evidence is credible and that only one permissible legal inference can be drawn from the evidence presented and that evidence proves as a matter of law that the Plaintiffs are entitled to an affirmative answer to this issue. 3. At what point in time did the town accept the proposed dedication of 5th Street, 4 1/2 Street and Poplar street, including the unimproved portions of said rights of way? On this issue the burden of proof is on the Plaintiffs to show some definite acceptance. The court finds that the evidence is almost wholly documentary in nature, that no human party survives from the time of the alleged original dedication or the early years of the town, that the evidence of early acceptance is credible and that only one permissible legal inference can be drawn from the evidence presented and that evidence proves as a matter of law that the unopened portions of all three

-3was "only one permissible legal inference" to be drawn from the evidence as to each of these three issues and thus plaintiffs were entitled to an affirmative answer to each as a matter of law. The

court then concluded that the unopened portions of the streets in question had been dedicated to the Town and could be opened by the Town without the need for condemnation of rights-of-way. The trial court entered judgment accordingly. Defendants appealed from this judgment contending that at the very least there were issues of fact which required a jury

determination, and that as a result, the trial court erred in directing a verdict for plaintiffs. We agree.

A motion for directed verdict, requires that the trial court consider the evidence in the light most favorable to the nonmovant, and determine whether the evidence is sufficient as a matter of law to be submitted to the jury. Delta Env. Consultants

of N.C. v. Wysong & Miles Co., 132 N.C. App. 160, 169, 510 S.E.2d 690, 696 (1999). the burden of "A directed verdict in favor of the party with proof is proper only when the proponent has

established a clear and uncontradicted prima facie case and the credibility of his evidence is manifest as a matter of law." Homeland, Inc. v. Backer, 78 N.C. App. 477, 481, 337 S.E.2d 114, 116 (1985). case at hand. With this guiding principle in mind, we turn to the

streets were accepted as part of the structure of the town and for public use before 1900 and long before the purported resolution of acceptance in 1984.

-4The Town was established in the late 1800's. Its origin dates back to 1875 when Samuel T. Kelsey ("Kelsey") purchased

approximately 800 acres of mountain land and began to sell lots and parcels out of this purchase. In 1883 the Town was chartered and

eventually assumed the maintenance of those streets which had been opened for use by the public. The streets at issue here, portions

of 5th, 4 1/2, and Poplar Streets, were not open then and have never been opened. At the heart of the controversy is the so-called "Kelsey Map." This map purports to be a map of the original Kelsey property as subdivided into lots and streets. On this map, the disputed

portions of 5th, 4 1/2, and Poplar Streets are depicted as part of the streets laid out on the map. The "Kelsey Map" was filed and

recorded in the Macon County Register of Deeds in 1944. There is nothing in the record to show who recorded the "Kelsey Map," and nothing to indicate the source of the map which was recorded. The map contains no surveyor's certification and it

appears to be no more than a skeletal layout of the streets and lots as opposed to a metes and bounds plat of these streets and lots. Very few of these lots contain metes and bounds

descriptions, and some are not even numbered, but instead contain only a person's name as identification of the lot. Despite the lack of information authenticating the "Kelsey Map," the Town, in 1984, passed a resolution "accepting" the "offer of dedication of streets, alleys, and rights-of-way" contained in the map and resolving to open the unimproved portions of these

-5streets as required, given the needs of the Town. Defendants

objected to this course of action and some of them attempted to file notices of withdrawal of the disputed, unopened streets pursuant to N.C. Gen. Stat.

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