
    GEORGE ALMER HARRIS and HENDERSON LOAN & REAL ESTATE COMPANY v. ISABELLA CARTER and W. T. CARTER, Her Husband; EMMA CARTER and J. R. CARTER, Her Husband, and LANDIS MOTOR COMPANY.
    (Filed 18 March, 1925.)
    Judgments — Consent—Boundaries—Estoppel—Roads—Highways.
    In a suit to correct a deed for mutual mistake, a judgment was entered, by the consent of the parties, fixing one of the boundaries to the land as a certain public highway, which road was later changed by the State and county authorities so as to leave a strip of land between the old and the new road, upon which the plaintiff built a house and made certain other improvements, the value of which would be impaired by the discontinuance of the old road as an outlet to the new one: Held, the defendants are equitably estopped from obstructing the old road and denying the old road as a boundary to their lands, the doctrine applying only as to the parties and privies to the former suit.
    Appeal by defendants from Bond, J., at Fall Term, 1924, of YaNCE. On 11 February, 1889, John W. Yaugban conveyed to Robert Orozier whose only beirs are the feme defendants, a lot described as follows: “Begin at a stone, William Finch’s corner, on west side of the railroad, and run along railroad S. 27% W. 200 feet to a stone; then N. 62% W. 258 feet to a stone; then N. 27% E. 67 feet to a stone in Kittrell’s line; thence E. 290 feet to the beginning.”
    On 1 October, 1891, Robert Crozier and wife executed a deed for said lot to George H. Harris, father of the plaintiff George Aimer Harris, but in a suit instituted in the Superior Court of Yance County in 1907, by the heirs at law of George H. Harris against the heirs at law of Robert Crozier this deed was reformed and it was adjudged and decreed by consent that the incorporation in the descriptive part of the deed from Robert Crozier and wife to George A.. Harris dated 1 October, 1891, of boundaries that include any land on the west side of the said county road was the result of a mutual mistake of the parties thereto and of the draftsman thereof, and the same was reformed, corrected, and limited to a conveyance of only so much and such part of said land as lies between and is bounded by the right of way of the Raleigh and Gaston Railroad, the county road leading from Henderson to Middleburg, and the land owned in 1891 by Allgood.
    The defendants introduced a deed from John W. Yaughan to Mrs. D. Y. Cooper, dated 25 January, 1882; a deed from E. Y. Cooper and wife to W. N. Ellington dated 7 April, 1884; and a deed from Ellington to Robert Crozier, dated 13 June, 1893, each conveying another lot adjoining Crozier’s.
    There was evidence tending to show that on the lot were a dwelling and a storehouse fronting the main street toward town, and that the plaintiff had been in possession of' the lot for seventeen years. The lot at the north end fronts on the State highway, but it is necessary to use the old road or the railroad right of way to get to the new road in the other direction.
    The old road was widened on the west side in 1912, by order of the county commissioners and on 6 June, 1921, they made the following entry on their minutes: “On motion duly seconded, we accept the highway, without any changes, so far as Yance County is concerned, entering the county at Tar River Bridge, passing through Henderson to the Warren County line, as per map exhibited. Also the following notice given: N. C. Highway Commission, Raleigh, N. O., Dear Sirs: We the Board of County Commissioners of Yance County, in regular session, this the 6 June, 1921, approve the system of highway for Yance County as authorized by the map posted by you at the courthouse door here 4 May, and respectfully ask that you take over these roads at your earliest convenience.”
    
      Tbe engineer of tbe Highway Commission testified: “As far as we were concerned tbe road was closed when we opened tbe new road . . . It was stated tbat tbe old road was covered by a deed owned by tbe Carters, and Mr. Ródgers, tbe claim engineer, told tbe Carters and their attorney, Mr. Hicks, tbat tbe old road went back to tbe original property owner, as tbe State would not use it any more and tbe Carters claimed tbat they were tbe property owners. This was considered an asset going to them in reducing tbe amount they claimed. . . . We did not attempt to pass on any one’s title — we just said tbe road went back to tbe original owners. . . . There is no direct communication between tbe store and tbe new road except over tbe old road. Not all tbe front of tbe Harris property is cut off from tbe new road. Tbe front of tbe store is cut off but I am not certain about tbe dwelling.”
    There was evidence tbat tbe value of tbe plaintiff’s lot would have been reduced one-half or more if tbe road bad been closed up.
    On 18 September, 1923, tbe defendants leased tbe strip between tbe new highway and tbe plaintiffs’ land to tbe Landis Motor Company as a filling station site including a part of tbe old road; and tbe action is prosecuted to restrain tbe erection of such station.
    
      B. 8. McCoin, J. H. Bridgers and Thomas M. Pittman for plaintiffs.
    
    
      Hicks & Son and Perry & Xittrell for defendants.
    
   Adams, J.

Robert Crozier, father of tbe defendants, acquired title to tbe lot in question on 11 January, 1880. Tbe county road, represented on tbe plat as tbe “old road,” extended through this lot; and it appears from tbe decree reforming tbe deed executed by Crozier to George H. Harris tbat tbe lot conveyed to Ha-rris lies between and is bounded by tbe railroad’s right of way, tbe county road, and tbe land owned by Allgood. It will be noted tbat tbe county road — “tbe old road”- — is thus made one of tbe boundary lines of tbe plaintiff’s lot. It does not definitely appear when this road was established, but tbe public acquired an easement in it and in tbe absence of evidence to tbe contrary we assume tbat tbe title in fee remained as it was before tbe road was opened and rests finally in tbe defendants. Tbe general rule is tbat when tbe owner of land lying on both sides of a public road conveys tbe land on one side tbe boundary is tbe line extending along tbe middle of tbe road, but tbe rule must be applied in tbe light of tbe intention of tbe parties. It is not necessary to determine tbe question of intention in this instance. If tbe defendants are concluded by a legal appropriation of tbe land covered by tbe old road they have no right to interfere with tbe plaintiff’s reasonable use of bis property.

The old road extended over land conveyed by Vaughan to Crozier in 1880 and was used as a public road from that time until the date of the change made by the Highway Commission in 1922. The method by which the easement was originally acquired- — whether by dedication or the exercise of the power of eminent domain — is not clearly disclosed by the record. In any event the defendants contend that the old road has been abandoned and that the defendants as the owners of the fee may appropriate the road to their own use.

Summarized, the argument of the defendants is this: the alteration of the public road by the construction of a part of it in a different place where it will serve the same purpose was to this extent a discontinuance of the old road; that the road was taken over by the Highway Commission and altered; and that this was an implied vacation or discontinuance of the old road.

¥e fail to find in the record any express order vacating the old road. Certainly the conversation of the engineer with the defendants cannot be construed as an order of the commission for whom he was at work. It was at most a mere expression of his opinion, for he stated that he did not attempt to determine the question of title. And the minutes of the county commissioners, offered in evidence, were simply an approval of the highway system for Vance County, entered of record before the roads were actually taken over.

The defendants cite 37 Cyc., 174; 15 A. & E., 404; Bradberry v. Walton, 94 Ky., 167, as authority for the position that the alteration of an existing road operates as a discontinuance of such portions of the old road as are not embraced within the limits fixed for the new one. An examination of the authorities has failed to disclose any decision to this effect under facts similar to those in the record before us. Neither secs. 3846 and 3846j nor Honeycutt v. Comrs., 182 N. C., 321, is decisive as to this position.

We deem it unnecessary, however, definitely to pass upon this point, for there is another principle by which the controversy may be determined. Dedication may be established against the owner of the soil by showing that he has sold lots describing them as bounded by a street or road. The authorities to this effect are numerous. 1 Elliott on Roads and Streets, 3 ed., sec. 128, and cases cited; Herold v. Investment Co., 14 L. R. A. (N. S.), 1067; Douglass v. Land Co., 37 L. R. A. (N. S.), 953, and note; Green v. Miller, 161 N. C., 25; Haggard v. Mitchell, 180 N. C., 255.

True, such dedication may be found most frequently in case of streets, parks, and other open spaces within municipal corporations; but the underlying principle is that of common law dedication operating by way of estoppel in pais rather than by grant. 1 Elliott, supra, sec. 125. Tbe lot in suit is outside tbe corporate limits but adjacent thereto and tbe old road is a continuation of tbe main street of tbe city. Tbe principle upon wbicb we base our decision is that of equitable estoppel.

Tbe deed from Robert Crozier to George H. Harris conveyed through mistake tbe entire lot described in tbe deed from Yaugban to Orozier. In 1907, tbe mistake was corrected by a decree of tbe Superior Court, in wbicb by consent of parties it was adjudged and decreed that tbe defendant Isabella Carter was tbe owner of,so much of said land as was situated on tbe west side of tbe old road and that tbe conveyance to Harris should be limited to such part of tbe lot as was bounded by tbe railroad right of way, tbe old county road, and tbe land owned by Allgood. We do not say that tbe conveyance of tbe lot to Harris, in wbicb it is described as bounded by tbe road necessarily constitutes a common law dedication; but we are of opinion that by virtue of tbe consent decree, tbe boundary of tbe defendants’ lot and of tbe lot conveyed to George H. Harris, and tbe buildings erected and tbe business conducted there, tbe defendants are equitably estopped from obstructing tbe old road and thereby seriously impairing tbe value of tbe plaintiff’s lot and interfering with tbe business conducted thereon.

It is important to remember that tbe controversy is confined to tbe parties plaintiff and defendant. Apparently tbe public is not interested. Neither tbe Highway Commission nor tbe board of county commissioners is a party. We conclude only tbe parties and those in privity with them.

We find

No error.  