
107 S.E.2d 297 (1959)
249 N.C. 549
CITY OF SALISBURY
v.
M. C. BARNHARDT, M. C. Barnhardt, Jr.; T. P. Shinn and Salisbury Marble & Granite Company, Inc.
No. 523.
Supreme Court of North Carolina.
February 25, 1959.
J. W. Ellis and John C. Kesler, Salisbury, for plaintiff.
Walser & Brinkley, Lexington, Craige & Craige, Salisbury, for defendants.
DENNY, Justice.
In the hearing below no exceptions were taken to the admission of evidence or to the facts as found by the court. Hence, such findings are presumed to be supported by competent evidence and are binding on appeal. City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486, and cited cases. The exception to the signing of the judgment, however, presents these questions: (1) Do the facts found support the judgment; and (2) does any error of law appear upon the face of the record? City of Goldsboro v. Atlantic Coast Line R. Co., supra; Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Dellinger v. Bollinger, 242 N.C. 696, 89 S.E. 2d 592; Gibson v. Mfrs' Mut. Insurance Co., 232 N.C. 712, 62 S.E.2d 320.
*300 The defendants' property, conveyed to them as lots 4 and 5, as laid out on the Harrison map hereinabove described, abuts on South Main Street for a distance of 120 feet. The new street opened in 1916 from South Main Street at its intersection with Vance Street through property owned by the plaintiff City to Fulton Street, left an unimproved area of the street in front of lots 4 and 5 two feet wide at the intersection with Vance Street and 14 feet wide at the southwestern corner of lot 5, this area being wholly within the boundaries of South Main Street as laid out on the aforesaid map. When the new street was opened and designated South Main Street in 1916, the street shown on the Harrison map, south of Vance Street, became known as Old South Main Street. It has never been closed or abandoned but has been used continuously as a public street. However, traffic has been diverted from Old South Main Street into the new portion of South Main Street around the area or triangle in controversy. If Old South Main Street is improved and paved as contemplated, the City must utilize the area in controversy, otherwise this triangle will jut out into the street at the intersection with Old South Main Street with the new portion of South Main Street as constructed in 1916.
The defendants stipulated that no deed conveying lots 4 and 5 from the original subdivider or any mesne conveyances in their chain of title, including the last one dated 2 February 1957, included the strip of land in controversy or any portion thereof. Consequently, the defendants claim no paper title to the area involved in this action.
It was further stipulated and found as a fact in the hearing below that no part of the street shown on the aforesaid map has ever been withdrawn by the dedicator, nor by any one claiming under him, pursuant to G.S. § 136-96, nor has said street or any portion thereof been closed pursuant to G.S. § 153-9(17).
Moreover, G.S. § 1-45 provides as follows: "No person or corporation shall ever acquire any exclusive right to any part of a public road, street, lane, alley, square or public way of any kind by reason of any occupancy thereof or by encroaching upon or obstructing the same in any way, and in all actions, whether civil or criminal, against any person or corporation on account of an encroachment upon or obstruction or occupancy of any public way it shall not be competent for a court to hold that such action is barred by any statute of limitations."
Exceptions to this statute have been recognized in at least two situations: (1) where a street has been dedicated and the municipality never accepted the dedication; and (2) where the dedicated street or streets, if accepted, had been abandoned. Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664, and cases cited therein.
In our opinion, on the facts found below, there is no evidence on this record to support the view that in opening the new street in 1916, which is now known as South Main Street, constituted a relocation of the street shown on the map referred to herein, or that it constituted an abandonment of any portion thereof. The cases of Moore v. Meroney, 154 N.C. 158, 69 S.E. 838 and Cahoon v. Roughton, 215 N.C. 116, 1 S.E.2d 362, cited by the appellants, are not controlling on the facts in this case.
When a street has been dedicated and a municipality has opened it, and it has been used continuously for many years, although the use may not have extended to the full width of the street, the unused portion has not by reason of nonuser lost the character of a street for which it was originally dedicated. Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Spicer v. City of Goldsboro, 226 N.C. 557, 39 S.E.2d 526.
*301 In 25 Am.Jur., Highways, section 112, page 410, et seq., it is said: "Abandonment will not ordinarily be implied from mere nonuser when the public need has not required the use. Statutes in some states provide that roads not worked or used for a specified number of years cease to be highways, or that the entire abandonment of a highway for a specified number of years shall work a discontinuance thereof, but the mere diversion of travel from a small portion of the way which the public authorities have failed to make passable will not work a discontinuance thereof under such a provision, even though continued for the statutory period. Some courts hold that a marginal portion of a street or highway may be lost by nonuser. Others, however, take the position that mere nonuser of a portion of the width of the way will not work an abandonment of the public rights therein; that if the way is originally laid out as of a certain width, the public is entitled to a way of that width, notwithstanding the worked part and the part actually used by travelers may have been less than that; and that the traveled path may also from time to time be widened or otherwise improved, as the growing necessities of the public may require, within the limits of the way as originally laid out."
It is also said in 26 C.J.S. Dedication § 63 b, p. 556: "The fact that a municipality improves or directs improvement of part only of the property dedicated does not constitute an abandonment of the balance; and it has similarly been held that the public use of only a part of land dedicated for a public highway does not constitute an abandonment of the unused portion. Even nonuser of a portion of a street, fenced in with abutting property, has been held not to constitute an abandonment of the street by the public."
Likewise, in 39 C.J.S. Highways § 131 b, p. 1068, we find the following statement: "If a highway is legally laid out and established, the mere fact that the public does not use it to its entire width will not of itself constitute an abandonment of any portion thereof. The rule is the same whether or not the road is fenced by the adjoining landowners. Encroachments on a highway continually used cannot be legalized by mere lapse of time; the limited use will not lessen the right of the public to use the entire width of the road whenever the increased travel and exigencies of the public render this desirable."
In Sipe v. Alley, 117 Va. 819, 86 S.E. 122, 123, the defendant had enclosed part of a public street with a fence and this condition had existed for a long period of time. In holding that this was not an abandonment of the street or of the enclosed portion thereof, the Supreme Court of Appeals of Virginia said: "Delay in opening a street is not an abandonment thereof, except so far as statutory or charter provisions fix a rule to the contrary. Nor is a mere nonuser of a portion of a street fenced in with abutting property an abandonment of the street by the public. Some private use of the public way is not infrequently accorded abutting owners until the public use requires its surrender. Town of Basic City v. Bell, 114 Val. 157, 76 S.E. 336."
In the case of Kelroy v. City of Clear Lake, 232 Iowa 161, 5 N.W.2d 12, 20, the Court said: "It has been held many times that the fencing in of a street or the planting of trees, shrubs, flowers and grass are not such permanent improvements as work an estoppel, even though the city does not complain. Kuehl v. Town of Bettendorf, 179 Iowa 1, 8, 9, and citations, 161 N. W. 28; Christopherson v. Incorporated Town of Forest City, 178 Iowa 893, 898, 901, 160 N.W. 691."
The facts as found in the hearing below do not disclose any affirmative acts on the part of the plaintiff that in our opinion misled these defendants or that would justify the conclusion that the plaintiff had abandoned the area of land in controversy, and we so hold.
*302 We further hold that the facts in this case are not of the character that would justify holding that the defendants are entitled to prevail under the doctrine of equitable estoppel. The fact that the defendants saw fit to construct an attractive, ornamental wall instead of an ordinary, or an ornamental, fence enclosing the area in controversy will not be construed to be such an improvement that its removal will constitute an injustice to these defendants. They knew for many years prior to the time they constructed the wall exactly where their lines were with respect to the street and that they were constructing the wall within the boundaries of the street as laid out on the Harrison map. McQuillen, Municipal Corporations, Vol. 11, section 30.181, page 98, et seq. The facts in this case are clearly distinguishable from those in Lee v. Walker, supra.
25 Am.Jur., Highways, section 115, page 413, et seq., states: "* * * to constitute an estoppel against the public the acts relied on must be such as to work a fraud or injustice if the public is not held to be estopped. Obviously, one who knowingly encroaches upon a highway is not within the protection of the rule. If the boundaries are fixed by a recorded map, subsequent purchasers of lots abutting thereon are charged with notice thereof, and the fact that they purchase under the impression that a fence encroaching on the street is on the boundary line thereof will not affect the public rights, provided the municipality has done nothing to mislead them."
Moreover, the fact that lots 4 and 5 were assessed for the improvements made in 1916 does not constitute an estoppel, it rather confirms the fact that the City claimed the land now in controversy as property dedicated for street purposes. Anderson v. Town of Albemarle, 182 N.C. 434, 109 S.E. 262, 264.
In the last cited case, this Court, speaking through Clark, C. J., said: "Land need not necessarily abut directly on the part of the street that has been improved to subject it to liability for its share of the cost of improvement. Indeed, premises separated from a street by a small stream, but having access to the street by means of bridges, are premises abutting on the street, though the owner of the premises is not the owner of the bed of the stream, and he is liable to assessment provided he has the right of ingress and egress over the intervening land to the improvement." Cf. City of Winston-Salem v. Smith, 216 N.C. 1, 3 S.E.2d 328 and In re Resolutions Passed by the City Council of the City of Durham (In re Assessments), 243 N.C. 494, 91 S.E. 2d 171.
The judgment of the court below is
Affirmed.
