The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-02-06
STREETS BELONG TO THE STATE.
Text OF Attorney Generals Opinion on
Stringing Of Wires.

The opinion of Attorney General r. ID.
Gilmer in the matter OF the right of the
States Prison Board to erect poles and
string wires along the streets of Raj
eigh for the purpose of lighting the State
buildings and grounds contains some very
interesting historical matter and is prih;-
ca in full as follows:
I'm compliance with your request for
my opinion as to the power which the
State of North Carolina, or your boarI
as enc of its agencies, possesses in the
matter of placing polls and stnneirg
wires thereon along the streets of Raleigh
for the purpose of lighting public buildings
and grounds belonging to the State within
the limits of the said city, [ have the
honor to submit the following;
ION the 9Th day of April, 1892, Joel
Lane executed deed to Alexander Martin,
Governor of North Carolina, conveying
to HIM for the use of the St'te.' q tract
of land containing one thousand acres adj
joining the +ract whereon The said Joel
Lane then liECl at Wake county cour:
house. This body of land was purchased
by commissioners appointed by che Gen
eral Assembly o. North Carolina under an
oldinuIcc thcretCtore adopted IL the con-
Vention at Hillsboro, in July 1883. tor
the purpose of establishing I place Tor
holding the future meetings OF the Gen
Cral Assembly, and the place of residence
Of the chief officers of the State The
original report prepared by TIE commits
eiorers and addressed to the General As
ecmbly, is now on file in the Office Of the
Secretary of State in this city. and which
report was submitted to the General As
sembly of North Carolina at its session
begun and held at New Bern or The 18th
day of November, 1892. and was by that
Body ratified end confirmed (Pubhc Acts
of the General Assembly OF North Caro-
Ina by James Iredell, ESQ. and revised
by Francois Xavier Martin, Vol. / Acts
1892, PIP. 2S-29)
''Tn ratifying the report OF the said
commissioners, the General Assembly de-
clared tscction Of said act) that: The
plan of a city was laid off ana reported
to the General Assembly by the Commits
sioners aforesaid, shall be and the same is
hereby received confirmed and ratified,
by the name OF the City of Raleigh; and
the several streets represented in tie plan,
and the public square wherein the State
house is to be built. shall be called and
them respectively by the Commissioners
aforesaid, which plan together with the
deed for the land purchased, with a plat
thereof annexed. shall be forthwith re-
corded in the Secretary's Office
"It appears that the, Commissioners
designated upon the plan of the said city
several streets, public square for the
State-house and also four other squares,
90 Gala II.
Moore ard also laid off certain lots
abutting on the said streets which were
afterwards sold and convened 10 rur-
cnasers.
THE effect of the deed from Joel Lane
to the Governor OF North Carolina was to
pass the legal title to the tract of lani
therein described to the State. of North
Carolina. or to the Governor and his sue
cessors in office for the use Of the State.
The legal title to the said streets and
squares not having been conveyed by the
State still remains in the State of North
Carolina. The General Assembly of the
State, having adopted the plans submitted
by the said Commissioners. and having
ordered the name to be recorded, purchase
ers and owners of property abutting on
the said streets and squares as Indicated
in the said plan, have ACQUIRED an ease
ment IN the said streets and squares for
the purposes to which they were originally
dedicated. While it IS true that the dedi-
cation of land for a street or highway
confers an easement for public use as q
highway or street, it is also, a well settled
rule of law that the owner of the fee re-
tains the right to use the said highways
and streets for any lawful purposes not
incompatible with the full enjoyment of
the easement.
"While the State of North Carolina, in
my opinion, possesses the right to use the
streets of Raleigh for public purposes not
inconsistent with the enjoyment of the
easement as hereinbefore stated it would
seem that this right can only be asserted
by legislative action. I do not find that
authority to act in this matter has beer
delegated by the General Assembly to
any department of the State government.
It is a matter, therefore, resting with the
legislative and not with the executive dev
partment of the government.
Il beg to suggest that further action in
this matter be POSTPONED until the meet
ing of the General Assembly, when the
necessary power to act in the premises
can be conferred On your board. If the
Legislature should see proper. and as to
this, there can be little doubt.
Order Blue Ribbon extracts. Your gro