Leeper v. Charlotte Park and Recreation Commission Petition for a Writ of Certiorari

    IK  THE

©Hurt nf %  § U tn \

October Term, 1955

No.

Charles W. P eeper, I. P. F arrar, Sadler S. Gladden , R ob­
ert H . Greene, J am es H ea th , H enry  M. I sley, R ussell 
M cL au g h lin , A n th o n y  M. W alker , H arold W alker , 
E dward J. W eddington , J am es J. W eddington , W illie  
L ee W eddington, L . A. W arner , G. M. W il k in s , R oy S. 
W y n n  and R udolph  M. W yghe ,

Petitioners,

vs.

C harlotte P ark  and  R ecreation C om m ission , a Municipal 
Corporation, Osmond  L. B arringer, A bbott R ealty 
Co m pan y , a Corporation, and C ity  of C harlotte, a 
Municipal Corporation.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

R obert L. Carter,
T hurgood M arshall ,
S pottswood W. R obinson , III,
T. H. W y ch e ,

Counsel for Petitioner.
E lwood H. Ch iso lm ,
W illiam  L. T aylor,

Of counsel.

S upreme P r in t in g  Co., I nc., 114 W orth Street, N. Y. 13, BEekm an  3 - 2320



TABLE OF CONTENTS

Opinions Below ...............................................................
Jurisdiction .....................................................................

Question Presented .......................................................

Constitutional Provisions and Statutes Involved . . .

Statement of the C a se ...................................................

Reasons for Allowance of the W r it ..............................
Conclusion.........................................................................

PAGE

2
2
2
3

3
7

18

Appendix A :

Opinion of the Supreme Court of North Caro­
lina entered June 30, 1955 ...............................  19

Judgment of the Supreme Court of North Caro­
lina entered June 30, 1955 ...............................  37

Appendix B :

Petition for Rehearing D enied.............................  38

Appendix C
An Ordinance to Set Aside and Dedicate Certain 

Lands of the City of Charlotte for Park and
Recreation Purposes .........................................  39
Exhibit “ A ”  .......................................................  42

Appendix D :

An Ordinance Amending the Ordinance Entitled 
“ An Ordinance to Set Aside and Dedicate Cer­
tain Lands of the City of Charlotte for Park 
and Recreation Purposes” ............................... 47



11

Table of Cases
PAGE

Allison v. Sharpe, 209 N. C. 477, 184 S. E. 27 (1936) l ln  
American Federation of Labor v. Swing, 312 U. S.

321 ..................................................................................  13
Barrows v. Jackson, 346 U. S. 249 ..............8, 9,10,13,15,17
Bolling v. Sharpe, 347 U. S. 497 ...................................  7,17
Bridges v. California, 314 U. S. 252..........................
Brown v. Board of Education, 347 U. S. 483 .......... 7
Brown v. Independent Baptist Church of Woburn,

325 Mass. 645, 91 N. E. ed. 922 (1950) ..................12n, 17
Buchanan v. Warley, 245 U. S. 6 0 ...............................  8
Cantwell v. Connecticut, 310 U. S. 296 ...................... 13
Civil Bights Cases, 109 U. S. 3 .....................................  12
Claremont Improvement Club v. Buckingham, 89

Cal. App. 2d 32, 200 P. 2d 47 (1948) ...................... 16
Clifton v. Puente, 218 S. W. 272 (Tex. Civ. App.

1949)..............................................................................  16
Collette v. Town of Charlotte, 114 Vt. 357, 45 A. 2d

203 (1946) ................................................................... 12n
Copenhaver v. Pendleton, 155 Va. 463, 155 S. E. 802

(1930) ........................................................................... 12n
Ex Parte Laws, 31 Cal. App. 846,193 P. 2d 744 (1948) 15
First Universalist Society v. Boland, 155 Mass. 171,

29 N. E. 524 (1892 ).....................................................  12n
Guinn v. United States, 238 U. S. 347 ........................ 9n
Hall v. Turner, 110 N. C. 292,14 S. E. 791 (1892) . . .  21n
Harmon v. Tyler, 273 U. S. 668, rev’g, 160 La. 943,

107 So. 704 (1926) .....................................................  8,10
Holmes v. Atlanta, — U. S. — 100 L. ed. (Advance p.

76) ............................................................................. 7,8,9,17
Home Building & Loan Assn. v. Blaisdell, 290 U. S.

398 ..................................................................................  14
Hurd v. Hodge, 334 U. S. 2 4 .........................................  15,17



I l l

PAGE

Kern v. Newton, 151 Kan. 565, 100 P. 2d 709 (1940) 9n
Land Development Co. v. New Orleans, 17 F. 2d 1016

(CA 5th 1927), rev’g, 13 F. 2d 898 (E. D. La. 1926) 10
Lane v. Wilson, 307 U. S. 268 .....................................  8, 9n
Lawrence v. Hancock, 76 F. Supp. 1004 (S. D. W. Ya.

1948) ............................................................................. 9n
Liberty Annex Corp. v. Dallas, 289 S. W. 1067 (Tex.

Civ. App. 1927), 19 S. W. 2d 845 (Tex. Civ. App.
1929) ..................................................   15

Lide v. Mears, 231 N. C. I l l ,  56 S. E. 2d 404 (1949) lln
McLaurin v. Oklahoma State Regents, 339 U. S. 637 8
Marsh v. Alabama, 326 U. S. 5 0 1 .................................  14
Mayor & City Council of Baltimore City v. Dawson,

— U. S. —, 100 L. ed. (Advance p. 75) ..............7, 8, 9,17
Nixon v. Condon, 286 IT. S. 7 3 .......................................
Nixon v. Herndon, 273 U. S. 536 .................................  9n
Norman v. Baltimore & O. R. Co., 294 U. S. 240 ........ 14
Republic Aviation Corp. v. National Labor Rela­

tions Board, 324 U. S. 793 ........................................  14
Rice v. Elmore, 165 F. 2d 387 (CA 4th 1947), cert.

denied, 333 U. S. 875 ............................................  9n
Richmond v. Deans, 281 U. S. 704, aff’g 37 F. 2d 712

(CA 4th 1930) ........................................................... 8 ,9n
Shelley v. Kraemer, 334 U. S. 1 ..........8, 9,10,13,14,16,17
Smith v. Allwright, 321 U, S. 649, ...............................  9n
Turpin v. Jarrett, 226 N. C. 135, 37 S. E. 2d 124

(1946) ........................................................................... 12n
Twining v. New Jersey, 211 U. S. 7 8 ..........................
Tryon v. Duke Power Co., 222 N. C. 200, 22 S. E.

2d 450 (1942) ............................................................... l ln
Woytus v. Winkler, 357 Mo. 1082, 212 S. W. 2d 411 

(1948) .......................................................................... 16



IV

PAGE

Williams v. Blizzard, 176 N. C. 146, 96 S. E. 957 
(1918) ........................................................................... 12n

Other Authorities

American Jurisprudence, “ Estates,”  Sec. 2 9 .........  12n
Borchard, Declaratory Judgments 22 et seq. (2 Ed.

1941) .....................    l ln

Tiffany, Law of Real Property (3rd Ed.), Sec. 217 12n



IN  THE

Shtpmttr (Unurt af tht Intt^ B utts
October Term, 1955 

No.

---------------------- o-----------------------
Charles W. L eeper, I. P. F arrar, Sadler S. Gladden , R ob­

ert H. Greene, J am es H ea th , H en ry  M. I sley, R ussell 
M cL a u g h lin , A n t h o n y  M. W alker , H arold W alker , 
E dward J. W eddington, J am es J . W eddington , W illie 
L ee W eddington, L. A. W arner, G. M. W il k in s , R oy S. 
W y n n  and R udolph  M. W y ch e ,

Petitioners,

vs.

Charlotte P ark  and  R ecreation Comm ission , a Municipal 
Corporation, Osmond L. B arringer, A bbott R ealty 
Com pan y , a Corporation, and C ity  of C harlotte, a 
Municipal Corporation.

----------------------o----------------------

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

To the Honorable, the Chief Justice of the 
United States and the Associate Justices 
of the Supreme Court of the United States:

Petitioners respectfully pray that a writ of certiorari 
issue to review the judgment of the Supreme Court of 
North Carolina modifying, and affirming as modified, a 
final judgment of the Superior Court of Mecklenburg 
County, North Carolina, wherein originally the Charlotte 
Park and Recreation Commission was plaintiff and the re­
maining parties were defendants.



2

Opinions Below

The opinion of the Supreme Court of North Carolina is 
reported at 242 N. C. 311 and at 88 S. E. 2d 114 and appears 
as Appendix A to this petition. The opinion of the Superior 
Court of Mecklenburg County is unreported and appears at 
pages 86-94 of the record as printed for use of the Supreme 
Court of North Carolina.1

Jurisdiction

The judgment sought to be reviewed was entered by the 
Supreme Court of North Carolina on June 30, 1955 and 
appears at page 37, Appendix A to this petition. Peti­
tioners’ timely petition for rehearing was denied Novem­
ber 1, 1955. This order appears at Appendix B to this peti­
tion. The jurisdiction of this Court to review by writ of 
certiorari the judgment in question is conferred by Title 28, 
United States Code, Section 1257(3).

Question Presented

Can a state effectuate provisions contained in a deed 
conveying real property for a public park to a municipal 
recreation commission, purporting to cause a reverter of 
part of the park property upon use by Negroes of a public 
golf course therein, without denying to petitioners rights 
secured by the due process and equal protection clauses of 
the Fourteenth Amendment and by Title 42, United States 
Code, Section 1981?

1 Copies of the record as printed for use of the Supreme Court 
of North Carolina, including the accompanying “ Pertinent Provi­
sions of the Charter of the City of Charlotte As Taken from Exhibit 
X III ,” are filed herein pursuant to Rule 21(4 ). References are to 
the pages of this record.



3

Constitutional Provisions and Statutes Involved

This case involves constitutional provisions, statutes and 
ordinances as follows:

1. United States Constitution, Amendment 14, Section 1.
2. Title 42, United States Code, Section 1981.
3. Ordinance entitled “ An Ordinance to Set Aside And 

Dedicate Certain Lands of the City of Charlotte for 
Park and Recreation Purposes ’ ’ adopted by the City 
Council of the City of Charlotte, North Carolina, on 
February 21, 1929 (Appendix C).

4. Ordinance entitled “ An Ordinance Amending the 
Ordinance Entitled ‘ An Ordinance to Set Aside and 
Dedicate Certain Lands of the City of Charlotte for 
Park and Recreation Purposes’ ”  adopted by the 
City Council of the City of Charlotte, North Caro­
lina, on May 7, 1929 (Appendix D).

Statement of the Case

The facts are undisputed. They are established by the 
findings of the Superior Court (R. 86-92), based upon an 
agreed statement of facts (R. 60-86), and were relied upon 
by the Supreme Court of North Carolina (242 N. C. at 312- 
315, 88 S. E. 2d at 116-118) as the basis for its conclusions.

The City of Charlotte is a municipal corporation of the 
State of North Carolina discharging governmental func­
tions (R. 61, 87, 104). The Charlotte Park and Recreation 
Commission is a public body corporate having ownership 
of, general jurisdiction and control over all recreational 
facilities in Charlotte, North Carolina (R. 60, 86-87, 
103-104).

The Commission brought this action for a judgment 
declaratory of the effect and validity of provisions in deeds



4

conveying to the Commission the real estate upon which is 
presently located Revolution Park, a municipally owned and 
operated park, in a portion of which the Commission oper­
ates the Bonnie Brae Golf Course. The provisions in ques­
tion purport to restrict the use of these public facilities to 
white persons only; and, in the event such restriction is 
violated, the land is to revert.

On or about August'31, 1927, several landowners offered 
real estate to the City “ to be used by the City of Charlotte 
through its Park and Recreation Commission for white 
people’s parks and playgrounds, parkways and municipal 
golf courses only”  (R. 2-3, 7-8, 10-12, 61, 87, 104-105). The 
offer further specified that in the event that the lands 
should not be so used, the properties would revert to each 
donor (R. 12, 61, 87, 105). On February 21, 1927, the City 
enacted an ordinance accepting the offer and designating 
the property “ as a park and recreation area for use by 
people of the white race only”  (Appendix C ; R. 3, 7-12, 
62, 88, 105). On May 7, 1929, it adopted another ordinance 
eliminating certain land from the park area and confirm­
ing the original ordinance as so amended (Appendix D; 
R. 3, 13-14, 62, 88, 105).

The park properties were conveyed to the Commission 
by four separate deeds: Osmond L. Barringer, Abbott 
Realty Company and City of Charlotte are three of the 
grantors. Each provided that the properties should be 
maintained as an integral part of a park and recreation area 
(R. 3-4, 17-18, 25, 33, 38, 62-63, 88-89, 105-106). Each deed, 
except that from the City, provided that the properties were 
“ to be kept and maintained for the use of, and to be used 
and enjoyed by, persons of the white race only”  (R. 3-4, 
17-18, 25, 33, 62-63, 88-89, 105-106); and all, except the deed 
from Abbott Realty Company, contained provisions pur­
porting to cause a termination of the Commission’s estate



5

in and a reverter of the property to the grantor thereof 
upon use by Negroes of any portion of the park properties 
(B. 3-4, 19, 27, 34, 38, 62-63, 88-89, 105-106).

The Bonnie Brae Golf Course is maintained and oper­
ated by the Commission as a part of a system of supervised 
recreation of the City (R. 64, 90, 107). It is the only course 
provided or operated by the Commission or the City that 
affords opportunities or facilities for playing the game of 
golf (E. 64, 90, 107). The Commission maintains and 
operates this course, the remainder of Revolution Park, 
and all facilities therein exclusively for the use and enjoy­
ment of white persons (R. 5, 64, 90, 107). All white persons 
who pay the fees and charges and comply with the rules 
and regulations relating to use of the course have been and 
are afforded the right and privilege of admission thereto 
and use thereof (R. 64, 90, 107). On the other hand, peti­
tioners and all other Negroes, because of race or color, are 
denied admission to and the use of the course (R. 64, 
90,107).

On or about December 20, 1951, petitioners presented to 
the Commission a petition alleging that they had been 
denied the right and privilege of admission to and the use 
of the Bonnie Brae Golf Course in violation of rights 
secured to them by the Constitution and law of the United 
States, and requesting that such discrimination cease 
(R. 5-6, 64-65, 74-86, 90-91, 107-108). Shortly thereafter, 
the Commission instituted this suit. The Commission did 
not change its policy, and a suit was filed in the Superior 
Court by petitioners seeking to enjoin the Commission from 
refusing to bar them from the golf course.

From the outset and throughout these proceedings, peti­
tioners have claimed that the operation of the reverter pro­
visions upon use by Negroes of the Bonnie Brae Golf



6

Course, in consequence of the action, authority or sanction 
of the State of North Carolina, would deny petitioners due 
process of law and the equal protection of the laws and 
would violate Title 42, United States Code, Section 1981 
(R. 44-46). They specifically requested declarations to 
that effect (R. 52-53). On the other hand, throughout this 
litigation the Commission, along with Barringer and Abbott, 
Realty Co. have asserted that the reverter provisions are 
constitutionally valid and automatically operative.

The Superior Court concluded: (a) that the deeds in 
question created valid determinable fees in the Commis­
sion with possibilities of reverter to the grantors (R. 92-93, 
109-110); (b) that in the event of the admission of Negroes 
to any part of Revolution Park, the properties conveyed by 
Barringer and Abbott Realty Company would immediately 
re-vest in them by operation of law (R. 93, 94, 110, 111) ; 
and (c) that, because the City had only one golf course, 
the use of that course by Negroes would not cause a rever­
sion to the City of that parcel conveyed to the Com­
mission by the City since this would violate the Fourteenth 
Amendment (R. 93-94, 110).

Petitioners excepted to the Superior Court’s conclu­
sions insofar as they would sustain the operation of the 
reverter provisions upon non-white use of the park prop­
erties (R. 92-95). They perfected an appeal to the Supreme 
Court of North Carolina on assignments of error (R. 95- 
102), appropriately raising the federal questions presented 
by this petition. That court modified the judgment of the 
Superior Court, holding upon a construction of the deed 
from the Abbott Realty Company that no reverter would 
result, and, as modified, affirmed the judgment of the court 
below on the ground that no state action would be involved 
in the operation of the reverter provisions. 242 N. C. at



7

322, 88 S. E. 2d at 123 (see Appendix A ). The federal 
questions were preserved by petitioners in their applica­
tion for rehearing,2 which was denied.3

Reasons for Allowance of the Writ

1. It is clear that the state cannot directly or indirectly 
burden the use and enjoyment of public parks and recrea­
tional facilities with restrictions based upon race or color.
Mayor v. Dawson, ------  U. S. ------ , 100 L. ed. (Advance
p. 75); Holmes v. City of Atlanta,------U. S .------- , 100 L. ed.
(Advance p. 76). This is exactly what the Commission has 
done. Moreover, it sought to shield its illegal conduct 
against the reach of the Fourteenth Amendment on the 
ground that the terms of 'the grants required imposition 
of the assailed restrictions and that the property must 
revert to the grantors if Negroes used the golf course. 
The opinion below sanctions and sustains this position with 
respect to the Barringer parcel and vindicates the Com­
mission’s discriminatory policy. We submit that the Com­
mission’s action and the decision below are in direct con­
flict with the decisions of this Court condemning state en­
forced racial distinctions in the use and enjoyment of public 
facilities. Mayor v. Dawson, supra, and Holmes v. City of 
Atlanta, supra. See also the School Segregation Cases 
(Brown v. Board of Education, 347 U. S. 483, Bolling v. 
Sharpe, 347 TJ. S. 497).

The City sought to implement the deed restrictions by 
ordinances barring Negroes, solely as Negroes, from use of 
Revolution Park (see Appendices C and D), and by restric­
tions in its own deed to the Commission. This whole course 
of conduct is illegal, and it is clear that these restrictions,

2 See pages 1-3 of the petition for rehearing in the record.

3 See Appendix B.



standing alone, could not be enforced or given court 
sanction.

The ordinances are obviously unconstitutional. See 
Buchanan v. Warley, 245 U. S. 60; Harmon v. Tyler, 273 
U. S. 558, rev ’g, 160 La. 943, 107 So. 704 (1926); Richmond 
v. Deans, 281 U. S. 704, alPg, 37 F. 2d 712 (CA 4th 1930). 
Equally obvious, we submit, is the unconstitutional char­
acter of the racial restrictions set out in the City’s convey­
ance. Compare Shelley v. Kraemer, 334 U. S. 1 and Bar- 
rows v. Jachson, 346 U. S. 249, with Buchanan v. Warley, 
supra-, Harmon v. Tyler, supra; and Richmond v. Deans, 
supra.

The public parks belong to the citizens of Charlotte and 
neither the City nor the Commission can impose racial con­
ditions with regard to their use. Both seek to defeat this 
constitutional proscription by imposing consequences on the 
use of the park by Negroes totally different from those 
involving use by white persons. It is clear, we submit, that 
no governmental agency can operate a public facility for 
the exclusive use of white persons, nor enforce, as to the 
park, a condition that if Negroes use it, the park can no 
longer remain in the public domain.

A state cannot impose unconstitutional conditions upon 
the exercise by a Negro of his constitutional rights. 
McLaurin v. Oklahoma State Regents, 339 U. S. 637. But 
here Negroes are told that a consequence of exercising 
their constitutional right to play golf on the Bonnie Brae 
Golf Course will be that another part of Revolution Park 
will revert to its grantor. This is as effective an enforce­
ment of racial distinctions in the use and enjoyment of 
public park facilities as those condemned by this Court in 
the Dawson and Holmes cases. The protection of the Con­
stitution extends to ‘ ‘ sophisticated as well as simple-minded 
modes of discrimination.”  Lane v. Wilson, 307 IT. S. 268,



9

275. The state here cannot be permitted by this device to 
deny these petitioners their right to equal protection ot 
the laws where it is clear that restrictions of this char­
acter directly imposed by the state could not be sustained.4 
It is respectfully submitted that this petition should be 
granted to determine whether the state action here involved 
and the decision below are violative of principles announced 
by this Court in Mayor v. Dawson, supra, and Holmes v. 
City of Atlanta, supra.

2. The decision of the court below in sanctioning and 
validating the reverter provision in the Barringer deed is 
in apparent conflict with the decisions of this Court in 
Shelley v. Kraemer, supra, and Barrows v. Jackson, supra.

In Shelley v. Kraemer this Court held that enforcement 
by injunction of a racially restrictive covenant, directed 
pursuant to the state’s common law policy as formulated 
in earlier decisions, denies the equal protection of the laws 
secured by the Fourteenth Amendment. In that case, this 
Court recognized that the Amendment is not rendered in­
effective “ simply because the particular pattern of dis­
crimination, which the State has enforced, was defined 
initially by the terms of a private agreement,”  334 U. S. 
at page 20, and “ that the action of state courts in enforcing 
a substantive common-law rule formulated by those courts, 
may result in the denial of rights guaranteed by the Four­
teenth Amendment . . S ’ Id, at 17. It concluded “ that 
judicial action is not immunized from the operation of the

4 Compare Shelley v. Kraemer, supra, with Buchanan v. Warley, 
supra; Smith v. Allwright, 321 U. S. 649 and Nixon v. Condon, 
286 U. S. 73 with Nixon v. Herndon, 273 U. S. 536; Lane v. 
Wilson, 307 U. S. 268 with Guinn v. United States, 238 U. S. 347. 
See Richmond v. Deans, supra-, Rice v. Elmore, 165 F. 2d 387 (CA  
4th 1947), cert, denied, 333 U. S. 875; Lawrence v. Hancock, 
76 F. Supp. 1004 (S. D. W . Va. 1948) ; Kern v. Newton, 151 Kan. 
565, 100 F. 2d 709 (1940).



10

Fourteenth Amendment simply because it is taken pursu­
ant to the state’s common law policy.”  Id. at 20.

Similarly, in Barrows v. Jackson, this Court held that 
a state court’s award of damages for a party’s nonobserv­
ance of such a covenant would likewise infringe the Four­
teenth Amendment. There the court concluded, “ The 
action of a state court at law to sanction the validity of 
the restrictive covenant here involved would constitute state 
action as surely as it was state action to enforce such cove­
nants in equity, as in Shelley, supra.”  5 346 U. S. at 254.

Petitioners submit that the Supreme Court of North 
Carolina has misconstrued the rationale of the Shelley and 
Barrows cases. In those cases the Court held that the 
Fourteenth Amendment precludes a court from sanctioning 
a discriminatory agreement either by the enforcement of 
the agreement or by the imposition of penalties for breach 
thereof. It is precisely this kind of sanction that the North 
Carolina courts have given to the reverter provision in the 
Barringer deed. Already they have adjudged that it will 
cause a reverter of the Barringer tract upon use of the 
golf course by Negroes. If the Commission should fail to

5 And, see Harmon v. Tyler, supra, where a Louisiana statute, and 
a New Orleans ordinance as well, made it unlawful for any white 
person to establish his residence on any property located in a Negro 
community without the written consent of a majority of the Negroes 
inhabiting the same, or for any Negro to establish his residence on 
any property located in a white community without the written 
consent of a majority of the white persons inhabiting the community. 
These were held unconstitutional on authority of Buchanan v. 
Warley, supra. The refusal of a landowner, unassisted by govern­
mental authority, to sell or lease to another citizen would not of 
itself involve any Fourteenth Amendment implications. The vice 
lay in the sanctions— here criminal penalties— supplied by the State 
and the city. Cf. Land Development Co. v. New Orleans, 17 F. 2d 
1016 (C A  Sth 1927), rev’g, 13 F. 2d 898 (E. D. La. 1926).



11

obey the state court judgment by refusing to yield posses­
sion to Barringer on the occurrence of this event, ample 
judicial sanctions will be available to compel obedience, just 
as sanctions would have been available to the plaintiff in 
Shelley had the defendant refused to move, and to the plain­
tiff in Barrows, if defendant had refused to pay damages 
awarded by the state court.6

Moreover, when the basis for the holding of the Supreme 
Court of North Carolina is examined, the presence of state 
action becomes even more apparent. The State of North 
Carolina, as a part of its common law, recognizes the deter­
minable fee simple estate and the concomitant possibility 
of reverter. Its common law rules also cause an automatic 
termination of the grantee’s estate and conversion of the 
grantor’s nonpossessory possibility into a possessory estate, 
upon the happening of the stated event. These propositions 
the Supreme Court of North Carolina stated in its opinion

6 See 1A, Gen. Stats, of North Carolina, No. 1-253,259. The 
fact that declaratory judgments are not self-executing does not make 
them unique. In almost all actions, whether at equity or at law, a 
recalcitrant party can be made to comply with a judgment only by 
a new invocation of the judicial process. Borchard, Declaratory 
Judgments 22 et seq. (2 ed. 1941). Thus, this case cannot be dis­
tinguished from the Shelley and Barrows decisions on the ground 
that here a declaratory judgment was sought rather than equitable 
relief or legal damages. If the judgment here complained of was 
merely an advisory opinion, there might be some basis for a distinc­
tion, but the Supreme Court of North Carolina has expressly negated 
its power to render advisory opinions under its Declaratory Judg­
ments Act. See Lide v. Mears, 231 N. C. I l l ,  56 S. E. 2d 404 
(1949) ; Tryon v. Duke Power Co., 222 N. C. 200, 22 S. E. 450 
(1942) ; Allison v. Sharpe, 209 N. C. 477, 184 S. E. 27 (1936).



12

and applied in the instant case.7 Conformably thereto, it 
held that ownership of the disputed property would “ auto­
matically”  revest in Barringer upon the happening of a 
stated event, i. e., the admission of the petitioners to the 
golf course. Thus, under the Court’s judgment, Barringer 
will be able to exercise the incidents and benefits of owner­
ship (although not necessarily of possession) as soon as 
petitioners are admitted to the golf course, without the 
necessity of invoking further judicial sanctions to execute 
the judgment.

As was pointed out in the Civil Rights Cases, 109 U. S. 
3, 17, racial discrimination by individuals escapes the ban 
of the Fourteenth Amendment only so long as such dis­
crimination is “ unsupported by state authority in the shape 
of laws, customs or judicial or executive proceedings”  and 
that immunity is lost the moment such discrimination is 
“ sanctioned in some way by the state. . . . ”  The reverter 
provision obtains its automatic operation and title-trans­

7 In addition to reference to many decisions, the Court spe­
cifically stated at 242 N. C. at 320, 321, 88 S. E. 2d at 122, 123: 
“ In North Carolina we recognize the validity of a base, qualified 
or determinable fee. Hall v. Turner, supra [110 N. C. 292, 14 S. E. 
791 (1892)] ; Williams v. Blizzard, 176 N. C. 146, 96 S. E. 957 
(1918) ; Turpin v. Jarrett, 226 N. C. 135, 37 S. E. 2d 124 (1946).

* * * *
“ It is a distinct characteristic of a fee determinable upon limi­

tation that the estate automatically reverts at once on the occurrence 
of the event by which it is limited, by virtue of the limitation in the 
written instrument creating such fee, and the entire fee automatically 
ceases and determines by its own limitations. Collette v. Town of 
Charlotte, supra [114 Vt. 357, 45 A. 2d 203 (1 9 4 6 )]; First 
Universalist Society v. Boland, supra [155 Mass. 171, 29 N. E. 
524 (1 8 9 2 )]; Brown v. Independent Baptist Church of Woburn, 
supra [325 Mass. 645, 91 N. E. 2d 922 (1950)] ; Copenhaver v. 
Pendleton, 155 Va. 463, 155 S. E. 802 [1930] ; Tiffany: Law of 
Real Property, 3rd Eel., Section 217. No action on the part of the 
creator of the estate is required, in such event, to terminate the 
estate. 19 Am. Jur., Estates, Section 29.”



13

ferring characteristics from the significance that North 
Carolina attaches to the deed limitations. The highest 
court in that State has adjudged that, by operation of its 
common law rules, there will occur a reverter to Barringer 
if Negroes are admitted to the golf course. That such a 
judicial declaration of rights and liabilities accorded by 
common law rules is state action within the meaning of the 
Fourteenth Amendment is abundantly established by the 
decisions of this Court. See Shelley v. Kraemer, supra; 
Barrows v. Jackson, supra-, American Federation of Labor 
v. Swing, 312 U. S. 321; Cantwell v. Connecticut, 310 U. S. 
296; Bridges v. California, 314 U. S. 252.

The state action here is indistinguishable from that con­
demned by this Court in Barrows v. Jackson as violative 
of the Fourteenth Amendment. In the Barrows case, this 
Court held that a state court could not award damages for 
breach of a restrictive covenant without invading the con­
stitutionally protected rights of Negro citizens to acquire 
land, even though the granting of damages would have left 
the Negro purchaser totally undisturbed in the enjoyment 
of his land. The Court stated at page 254:

To compel respondent to respond in damages 
would be for the State to punish her for her failure 
to perform her covenant to continue to discriminate 
against non-Caucasians in the use of her property. 
The result of that sanction would be to encourage the 
use of restrictive covenants. To that extent, the 
State would act to put its sanction behind the 
covenants.

This rationale is precisely applicable to the instant case, 
for the giving of judicial sanction to the reverter provi­
sions operates to penalize the City and Commission for 
failure to obey discriminatory provisions in the deed. More­
over, the effect of the court sanction is more direct here for



14

it operates to deprive the petitioners of the right to use 
public facilities, while in the Barrows case, a damage judg­
ment would not have affected the Negro purchaser’s enjoy­
ment of his land.

Further, the Court held that failure to give force and 
effect to the reverter would violate due process. But an 
individual’s right to contract and a property owner’s 
right to exercise the incidents of his ownership are each 
subordinate to paramount constitutional considerations. 
Norman v. Baltimore ■& 0. R. Co., 294 U. S. 240; Home 
Building and Loan Association v. Blaisdell, 290 U. S. 398. 
From its inception every individually created property 
interest is subject to the infirmity that the state cannot 
sanction its operation if a violation of constitutionally- 
protected rights will follow. Marsh v. Alabama, 326 U. S. 
501; Republic Aviation Corp. v. National Labor Relations 
Board, 324 U. S. 793. The state may effectuate property 
interests and give operation to contracts so long as those 
things may be done consistently with the Constitution. But 
the state cannot avoid the prohibitions of the Fourteenth 
Amendment by seeking to protect a right that cannot con­
stitutionally obtain. The desire of the state to promote 
private or public interests must be subordinated to its obli­
gation to respect fundamental constitutionally-protected 
civil rights. In all cases, the state must square its action 
with the overriding mandate of the Fourteenth Amend­
ment, regardless of how it squares with other interests.

The right of an individual to make a contract or to own 
and dispose of his property does not vest in him the privi­
lege of directly or indirectly requiring a governmental 
agency to discriminate against its citizens on racial grounds. 
Nor does it invest him with power to create a device the 
legal operation of which offends the Constitution. As in 
Shelley v. Kraemer, supra, the Court said at page 22:

The Constitution confers upon no individual the
right to demand action by the State which results in



15

. the denial of equal protection of the laws to other 
individuals. And it would appear beyond question 
that the power of the State to create and enforce 
property interests must be exercised within the 
boundaries defined by the Fourteenth Amendment.

See also Barrows v. Jackson, supra; Hurd v. Hodge, 334 
U. S. at 24, 34-35. Indeed this is the ratio decedendi of the 
Shelley and Barrows cases. Petitioners submit that review 
of this case is necessary if this Court’s decisions in Shelley 
and Barrows barring judicial sanction and enforcement of 
racially restrictive covenants are not to be sapped of their 
vitality.

3. The decision of the Supreme Court of North Carolina 
in this case conflicts with decisions of other state courts 
holding that a state may not indirectly accomplish a denial 
of civil rights by sanctioning privately-initiated property 
restrictions.

In Liberty Annex Corp. v. Dallas, 289 S. W. 1067 (Tex. 
Civ. App. 1927), 19 S. W. 2d 845 (Tex. Civ. App. 1929), it 
was held that a municipal ordinance making it a criminal 
offense to violate a pre-existing segregation agreement 
privately-made between certain whites and Negroes rela­
tive to certain property is violative of the Fourteenth 
Amendment. Voluntary adherence to the terms of the 
agreement would have occasioned no constitutional diffi­
culties, but the criminal sanctions supplied by the city made 
the difference.

Similarly, in Ex parte Laws, 31 Cal. App. 846, 193 P. 2d 
744 (1948), petitioners sought discharge by habeas corpus 
from imprisonment for contempt for refusing to obey a 
court order to vacate restricted property entered pursuant 
to a final judgment enjoining the petitioners from using 
or occupying the land in violation of privately-imposed 
racial restrictions. The court held that petitioners must be



16

discharged, since the commitments amounted to state action 
in indirect enforcement of the restrictions within the pur­
view of the decision in Shelley v. Kraemer, supra.

In Claremont Improvement Club v. Buckingham, 89 Cal. 
App. 2d 32, 200 P. 2d 47 (1948), a California court of 
appeals reversed the judgment of a lower court which had 
granted an injunction against the breach of a private 
racially restrictive covenant. The appellee contended that 
even if Shelley v. Kraemer, supra, prohibited the issuance 
of an injunction, its prayer for a declaratory judgment 
that the covenant was valid should be sustained. The 
appellate court denied this relief also, holding that if the 
covenant was unenforceable, the whole purpose of the liti­
gation failed.

Similarly, in Woytus v. Winkler, 357 Mo. 1082, 212 S. W. 
2d 411 (1948), the court affirmed the dismissal of an action 
brought to divest title to real estate and enjoin breach of 
a racial restrictive covenant between property owners which 
provided against sale of the land to or occupancy thereof by 
any Negro. In this case the Negro defendants had been 
vested with title and were in possession. The affirmance 
was on authority of Shelley v. Kraemer, supra.

And, in Clifton v. Puente, 218 S. W. 272 (Tex. Civ. App. 
1949), a deed contained a restriction against sale to persons 
of Mexican descent and a provision for reverter in that 
event. The property was sold to Puente, a naturalized 
American of Mexican descent. In a suit for cancellation 
of Puente’s deed, the court sustained his demand for title 
and possession against the claim that the restrictive and 
reverter provisions constituted a defense thereto. It said: 
“ It is as much an enforcement of the covenant to deny to 
a person a legal right to which he would be entitled except 
for the covenant as it would be to expressly command by 
judicial order that the terms of the covenant be recognized 
and carried out . . . judicial recognition or enforcement



17

of the racial covenant involved here by a state court is pre­
cluded by the ‘ equal protection of the laws’ clause of the 
Fourteenth Amendment.”

It is respectfully submitted that this petition should be 
granted to resolve this conflict in decisions of state courts.

4. The instant case raises questions of great public im­
portance which should be determined by this Court. Peti­
tioners do not know how many conveyances for public use 
with reverter provisions of this character have been made. 
One need not be a student of American race relations, how­
ever, to realize that the arrangement here involved, reflect­
ing as it does local custom, usage and attitudes, cannot be 
regarded as an isolated phenomenon. Indeed, such provi­
sions are probably attached to many public facilities in use 
throughout the United States. This decision places a cloud 
upon any public property where the grantor made enforce­
ment of racial discrimination a condition of his grant.

The immediate effect of the decision of the North Caro­
lina Supreme Court, therefore, goes beyond the narrow 
facts of the instant case. Its ramifications promise to be 
widespread indeed. For, in the light of this case, the right 
of Negroes and other minority groups to use public recrea­
tional facilities without discrimination, see Dawson and 
Holmes cases, supra, to enjoy nonsegregated public educa­
tional facilities, see Brown v. Board of Education, supra; 
Bolling v. Sharpe, supra, and to acquire housing though 
encumbered by racial covenants, see Shelley v. Kraemer, 
supra; Barrows v. Jackson, supra; Hurd v. Hodge, supra, 
all become questionable.

This device provides a method for full frustration of 
constitutional doctrines evolved in those cases. Racial 
restrictive covenants, declared unenforceable by injunction 
in Shelley and by an award of damages in Barrows, may 
now be enforced by judicial sanction of reverter provisions



18

sustained in this case. Property owners need only provide 
that in event the contract is violated, the property shall 
revert to render Shelley and Barrows completely mean­
ingless.

The decision below poses a gross danger to the strength 
and vitality of the Constitution’s proscription against gov­
ernmental enforcement of racial distinctions and differen­
tiations, and this petition should be granted to resolve this 
important public question.

CONCLUSION

Wherefore, for the reasons hereinabove stated, it is
r e s p e c t fu lly  s u b m itte d  that this petition for writ of cer­
tiorari should be granted.

R obert L. Carter,
T htjrgood M arshall ,
S pottswood W. R obinson , III,
T. H .  W y c h e ,

Counsel for Petitioner.

E lwood H. C h iso lm , 
W illiam  L. T aylor,

Of counsel.



19

APPENDIX A

Opinion of the Supreme Court of North Carolina
entered June 30, 1955

Appeal by all the defendants, except Osmond L. Bar­
ringer, Abbott Realty Company and the city of Charlotte, 
from Patton, Special Judge, Extra February Civil Term 
1955 of Mecklenburg.

Civil action to have determined questions of the con­
struction or validity of provisions in certain deeds restrain­
ing the use of the lands conveyed, and requiring that the 
lands revert to the grantors if such restrictions are not 
carried out.

All parties to the action, by written stipulation filed with 
the court, waived a jury trial, and consented that the court 
find the facts. The facts found by the Judge necessary for 
a decision of the questions presented are summarized as 
follows:

One. Charlotte is a municipal corporation of the State 
of North Carolina. General control, management and au­
thority over the parks and playgrounds of Charlotte are 
vested by law in the plaintiff, a public body corporate 
known as Charlotte Park and Recreation Commission.

Two. On 31 August 1927 W. T. Shore and T. C. Wilson, 
and the defendants Barringer and Abbott Realty Com­
pany, offered to give to the city of Charlotte through plain­
tiff for park and playground purposes certain lands free 
from encumbrance upon the following conditions:

1. “ Said lands are to be used by the city of Charlotte 
through its Park and Recreation Commission for white 
people’s parks and playgrounds, parkways and municipal 
golf courses only.”



20

2. Provisions that the lands shall be beautified and 
maintained so as to keep them suitable for parks, etc., at 
a cost of not less than $5,000.00 annually for the first 8 
years.

3. Provisions for construction of driveways.
4. Adjacent lands now owned by city of Charlotte shall 

be set aside by it as a part of this proposed park.

5. In the event the lands are not kept and maintained 
at an expenditure as aforesaid and are not used for parks 
and playgrounds only, the “ said lands shall revert in fee 
simple to the undersigned donors” ; each donor to have 
reverted back to him the land he gave.

Three. On 18 February 1929 plaintiff approved said 
offer. On 21 February 1929 the city of Charlotte accepted 
said offer, and agreed to the terms thereof by ordinance 
duly passed and adopted.

Four: On 22 May 1929 the defendant Barringer, and 
wife, by deed properly recorded, conveyed as a gift certain 
lands therein described to plaintiff for use as a park, play­
ground and recreational system of the city of Charlotte to 
be known as Revolution Park. This deed in the granting 
clause conveys the land to the plaintiff here “ upon the 
terms and conditions, and for the uses and purposes, as 
hereinafter fully set forth.”  The habendum clause is to 
have and to hold the land “ upon the following terms and 
conditions, and for the following uses and purposes, and 
none other, ’ ’ which are set forth as follows: 1. The land 
conveyed by this deed, together with other lands conveyed 
to plaintiff by W. T. Shore, and wife, T. C. Wilson, and 
wife, Abbott Realty Co. and the city of Charlotte shall be 
maintained and operated by plaintiff as an integral part 
of a park, playground and recreational area, to be known 
as Revolution Park, “ for use of, and to be used and enjoyed

Appendix A



21

by persons of the white race only.”  2. Here follows the 
other conditions of the offer. Then the deed contains this 
language:

“ In the event that the said lands comprising the 
said Revolution Park area as aforesaid, being all of 
the lands hereinbefore referred to, shall not be kept 
and maintained as a park, playground and/or rec­
reational area, at an average expenditure of five 
thousand dollars ($5,000) per year, for the eight- 
year period as aforesaid, and/or in the event that 
the said lands and all of them shall not be kept, used 
and maintained for park, playground and/or recrea­
tional purposes, for use by the white race only, and 
if such disuse or non-maintenance continue for any 
period as long as one year, and/or should the party 
of the second part, or its successors, fail to construct 
or have constructed the roadway above referred to, 
within the time specified above, then and in either 
one or more of said events, the lands hereby con­
veyed shall revert in fee simple to the said Osmond 
L. Barringer, his heirs or assigns; provided, how­
ever, that before said lands, in any such event, shall 
revert to the said Osmond L. Barringer and as a 
condition precedent to the reversion of the said 
lands in any such event, the said Osmond L. Bar­
ringer, his heirs or assigns, shall pay unto the party 
of the second part or its successors the sum of 
thirty-five hundred dollars ($3500).”

Five. On 22 May 1929 W. T. Shore, and wife, T. C. 
Wilson, and wife, by deed properly recorded, conveyed as 
a gift certain lands therein described to plaintiff upon the 
terms and conditions and for the same uses and purposes 
as set forth in the defendant Barringer’s deed. The provi­
sions in this deed as to the use of the land, and the lan­

Appendix A



22

guage as to reversion to the donors, are similar to the 
Barringer deed, except there is no provision that as a 
condition precedent to a reversion the grantors shall pay 
any money to the grantee. A  number of years later a con­
troversy arose between W. T. Shore and T. 0. Wilson on 
the one side and the plaintiff here on the other over this 
land they conveyed as a gift. Action was instituted by 
W. T. Shore and T. C. Wilson against the plaintiff here, 
which action was compromised and settled by the plaintiff 
here, the defendant in that case, paying to W. T. Shore 
$3,600 for all rights of reversion, forfeiture, re-entry and 
interest which Shore had, has, or might have in the lands 
he conveyed by gift, and paying to the heirs of Wilson 
$2,400 for the same rights. As a part of the compromise 
and settlement, W. T. Shore and the heirs of Wilson, by 
separate deeds, remised, released and forever quit-claimed 
unto the plaintiff here all rights of reversion, forfeiture, 
entry, re-entry, title, interest, equity and estate, and all 
other rights of every nature, kind and character, which 
they had, now have, or might have hereafter in the said 
lands.

Six. On 22 May 1929 Abbott Realty Company, by deed 
properly recorded, conveyed as a gift certain lands there­
in described to plaintiff upon the terms and conditions and 
for the same uses and purposes, and for use of the white 
race only, as set forth in the defendant Barringer’s deed. 
This deed contains a reverter provision, but it does not 
provide that if the lands conveyed are used by members 
of a non-white race that the lands conveyed as a gift shall 
revert back to the grantor. Nor does it contain a provision 
that as a condition precedent to reversion Abbott Realty 
Company shall pay to the grantee any money.

Seven. On 22 May 1929 the city of Charlotte conveyed 
to plaintiff certain adjacent lands owned by it to form a

Appendix A



23

part of Revolution Park. This park is composed of this 
land and the lands conveyed to Barringer, Shore, Wilson 
and Abbott Realty Company. The city’s deed provides 
that should the lands conveyed by it and the lands con­
veyed by the other parties named above shall not at any 
time for 12 consecutive months be used for park, play­
ground or recreational purposes for use by persons of the 
white race only, then the land conveyed by the city shall 
cease to be a park, playground, etc., and shall revert to the 
city of Charlotte.

Eight. Plaintiff has in Revolution Park a municipal 
swimming pool, municipal tennis courts and the Bonnie 
Brae Golf Course, which it operates and maintains as a 
part of the recreational system of Charlotte. Bonnie Brae 
Golf Course is situated on the lands given to plaintiff by 
Shore and Wilson, and conveyed to plaintiff by the city of 
Charlotte. This golf course is the only one operated and 
maintained by plaintiff, and it and the other recreational 
features of Revolution Park are operated by plaintiff for 
the exclusive use of members of the white race. All Negroes 
are denied the use of this golf course because of the re­
strictions in the above deeds.

Nine. In December 1951 all the defendants, except Bar­
ringer, Abbott Realty Company and the city of Charlotte 
presented to plaintiff a petition stating1 that they are Ne­
groes, and because they are Negroes, they have been denied 
the right to use this golf course, in violation of their con­
stitutional rights, and demanding that they be permitted 
to use this golf course.

Ten. Plaintiff by operation of law is charged with the 
duty of operating and maintaining recreational facilities 
for the citizens of Charlotte, and does not desire to deprive 
any of its citizens of their legal rights, nor does plaintiff

Appendix A



24

desire to lose by reverter any of the properties entrusted 
to it for recreational purposes, nor does it desire to fail to 
comply with the terms of any gifts made to it by any of its 
citizens. Therefore, by reason of the aforesaid petition the 
plaintiff immediately instituted suit against the grantors 
of the lands composing Revolution Park to obtain a judicial 
determination of the effect of allowing Negroes to use the 
golf course in said park, because of the reverter provisions 
and the restrictions as to use in their deeds. The appel­
lants were made parties to the suit. Pending a final deci­
sion in such suit plaintiff refused petitioner’s request.

Eleven. The defendant Barringer is ready, able and 
willing to pay the sum of $3,500 as a condition precedent 
to the reversion of the land to him as provided in his deed 
of gift to the plaintiff.

Upon these facts found the judge made following con­
clusions of law and entered judgment accordingly:

1. The court has jurisdiction of the property and the 
parties, and is empowered to enter judgment under the 
Declaratory Judgment Act. G. S. N. C. 1-253 et seq.

2. The deeds from Osmond L. Barringer, and wife, 
and from Abbott Realty Company vested in plaintiff a 
valid determinable fee with the possibility of reverter in 
and to the lands described in the deeds.

3. In the event any of the reverter provisions in the 
Barringer deed or the Abbott Realty Company deed be 
violated, then and in such event title to the lands conveyed 
in said deeds will by operation of law immediately revert 
title in the grantors: and the admission of Negroes on the 
Bonnie Brae Golf Course to play golf will cause the re­
verter provisions in said deeds immediately to become 
operative, and title to revert.

Appendix A



25

4. The deed from the city of Charlotte vested in plain­
tiff a valid determinable fee with the possibility of reverter. 
That the use of Bonnie Brae Golf Course by negroes as 
players would not cause a reversion of the property con­
veyed by the city of Charlotte to plaintiff, for that the 
reversionary clause in the city’s deed is, under such cir­
cumstances, void as being in violation of the 14th Amend­
ment to the U. S. Constitution.

5. The plaintiff is the owner in fee, free of any condi­
tions, reservations or reverter provisions of the lands con­
veyed to it by Shore and Wilson.

6. Revolution Park was created as an integral area of 
land, and to permit negroes to play golf on any part of said 
land will cause the reverter provisions in the Barringer 
and Abbott Realty Company deeds immediately to become 
effective and result in the title of plaintiff terminating and 
the lands reverting to Barringer and Abbott Realty Com­
pany.

From the judgment entered the defendants, except Os­
mond L. Barringer, Abbott Realty Company and the city 
of Charlotte, appealed, assigning error.

T. H. Wyche and Spottswood W. Robinson, III, for 
Charles W. Beeper, I. P. Farrar, Sadler S. Gladden, Robert 
H. Greene, James Heath, Henry M. Isley, Russell Mc­
Laughlin, Anthony M. Walker, Harold Walker, Edward 
J. Weddington, James J. Weddington, Willie Lee Wedding- 
ton, L. A. Warner, G. M. Wilkins, Roy S. Wynn, and 
Rudolph M. Wyche, Defendants, Appellants.

Cochran, MeCleneghan & Miller and F. A. MeCleneghan 
and Lelia M. Alexander for Osmond L. Barringer, Defend­
ant, Appellee.

John D. Shaw for Charlotte Park and Recreation Com­
mission, Plaintiff, Appellee.

Appendix A



26

Appendix A

P arker , J.
The decision of the Trial Judge that he had jurisdiction 

of the property and the parties, and was empowered to 
enter judgment under the Declaratory Judgment Act is 
correct. G. S. 1-253 et seq., Lide v. Mears, 231 N. C. I l l ,  
56 8. E. 2d 404.

There are no exceptions to the Judge’s findings of fact.
We shall discuss first the Barringer Deed, which by 

reference, as well as all the other deeds mentioned in the 
statement of facts, is incorporated in the findings of fact, 
and made a part thereof. The first question presented is: 
Does the Barringer Deed create a fee determinable on 
special limitations, as decided by the Trial Judge!

This Court said in Hall v. Turner, 110 N. C. 292, 14 S. E. 
791: “ Whenever a fee is so qualified as to be made to 
determine, or liable to be defeated, upon the happening of 
some contingent event or act, the fee is said to be base, 
qualified or determinable.”

“ An estate in fee simple determinable, sometimes re­
ferred to as a base or a qualified fee, is created by any 
limitation which, in an otherwise effective conveyance of 
land, creates an estate in fee simple and provides that the 
estate shall automatically expire upon the occurrence of a 
stated event. . . .  No set formula is necessary for the crea­
tion of the limitation, any words expressive of the grantor’s 
intent that the estate shall terminate on the occurrence of 
the event being sufficient. . . . So, when land is granted for 
certain purposes, as for a schoolhouse, a church, a public 
building, or the like, and it is evidently the grantor’s inten­
tion that it shall be used for such purposes only, and that, 
on the cessation of such use, the estate shall end, without 
any re-entry by the grantor, an estate of the kind now under 
consideration is created. It is necessary, it has been said, 
that the event named as terminating the estate be such that 
it may by possibility never happen at all, since it is an



27

essential characteristic of a fee that it may possibly endure 
forever.”  Tiffany: Law of Eeal Property, 3rd Ed., Sec. 
220.

In Connecticut Junior Republic Association v. Litch­
field, 119 Conn. 106, 174 A. 304, 95 A. L. R. 56, the real 
estate was devised by Mary T. Buell to the George Junior 
Republic Association of New York with a precatory provi­
sion that it be used as a home for children. The New York 
association by deed conveyed this land to plaintiff, “ its 
successors and assigns, in trust, as long as it may obey the 
purposes expressed in . . . the will . . . and as long as the 
(grantee) shall continue its existence for the uses and 
purposes as outlined in the preamble of the constitution of 
the National Association of Junior Republics, but if at 
any time it shall fail to so use said property for said pur­
poses . . . then the property hereby conveyed shall revert 
to this grantor, or its successors.”  The Supreme Court of 
Connecticut said: “ The effect of the deed was to vest in 
the plaintiff a determinable fee. Here, as in First Univer- 
salist Society v. Boland, 155 Mass. 171, 174, 29 N. E. 524, 
15 L. R. A. 231, the terms of the deed ‘ do not grant an 
absolute fee, nor an estate or condition, but an estate which 
is to continue till the happening of a certain event, and 
then to cease. That event may happen at any time, or it 
may never happen. Because the estate may last forever, 
it is a fee. Because it may end on the happening of the 
event it is what is usually called a determinable or qualified 
fee.’ See, also, City National Bank v. Bridgeport, 109 
Conn. 529, 540, 147 A. 181; Battistone v. Banulski, 110 
Conn. 267, 147 A. 820.”

In First Universalist Society v. Boland, 155 Mass. 171, 
29 N. E. 524,15 L. R. A. 231, “ the grant of the plaintiff was 
to have and to hold, etc., ‘ so long as said real estate shall 
by said society or its assigns be devoted to the uses, inter­
ests and support of those doctrines of the Christian re-

Appendix A



28

ligion’ as specified; ‘ and when said real estate shall by said 
society or its assigns be diverted from the uses, interests, 
and support aforesaid to any other interests, uses, or pur­
poses than as aforesaid, then the title of said society or its 
assigns in the same shall forever cease, and be forever 
vested in the following named persons, etc.’ ”  The Su­
preme Court of Connecticut in Connecticut Junior Republic 
Association v. Litchfield, supra, has quoted the language 
of this case holding that the grant creates ‘ ‘ a determinable 
or qualified fee.”  Immediately after the quoted words, the 
Massachusetts Court used this language: “ The grant was 
not upon a condition subsequent, and no re-entry would be 
necessary; but by the terms of the grant the estate was to 
continue so long as the real estate should be devoted to the 
specified uses, and when it should no longer be so devoted 
then the estate would cease and determine by its own limi­
tation. ’ ’

In Brown v. Independent Baptist Church of Woburn, 
325 Mass. 645, 91 N. E. 2d 922, the will of Sarah Converse 
devised land “ to the Independent Baptist Church of W o­
burn, to be holden and enjoyed by them so long as they 
shall maintain and promulgate their present religious belief 
and faith and shall continue a church; and if the said 
church shall be dissolved, or if its religious sentiments 
shall be changed or abandoned, then my will is that this 
real estate shall go to my legatees hereinafter named.”  
The Court said: “ The parties apparently are in agree­
ment, and the single justice ruled, that the estate of the 
church in the land was a determinable fee. We concur. 
(Citing authorities.) The estate was a fee, since it might 
last forever, but it was not an absolute fee, since it might 
(and did) ‘ automatically expire upon the occurrence of a 
stated event.’ ”

In Smith v. School Dist. No. 6 of Jefferson County 
(Missouri), 250 S. W. 2d 795, the deed contained this pro-

Appendix A



29

vision: “ The said land being hereby conveyed to said
school district for the sole and express use and purpose of 
and for a schoolhouse site and it is hereby expressly under­
stood that whenever said land shall cease to be used and 
occupied as a site for a schoolhouse and for public school 
purposes that then this conveyance shall be deemed and 
considered as forfeited and the said land shall revert to 
said party of the first part, his heirs and assigns.”  The 
Court held that the estate conveyed was a fee simple 
determinable.

In Collette v. Town of Charlotte, 114 Vt. 357, 45 A. 2d 
203, the deed provided that the land “ was to be used by said 
town for school purposes, but when said town fails to use 
it for said school purposes it shall revert to said Schofield”  
(the grantor), “ his heirs and assigns, but the town shall 
have the right to remove all buildings located thereon. The 
town shall not have the right to use the premises for other 
than school purposes.”  The Supreme Court of Vermont in a 
well reasoned opinion supported by ample citation of au­
thority said: “ It was held in Fall Creek School Twp. v. Shu­
man, 55 Ind. App. 232, 236,103 N. E. 677, 678, that a convey­
ance of land ‘ to be used for school purposes’ without further 
qualification, created a condition subsequent. The same 
words were used in Scofield’s deed to the Town of Char­
lotte, but they were followed by the provision that ‘when 
said Town fails to use it for said school purposes it shall 
revert to said Scofield, his heirs or assigns,’ clearly indi­
cating the intent of the parties to create a determinable 
fee, which was, we think, the effect of the deed. North v. 
Graham, 235 111. 178, 85 N. E. 267, 18 L. R. A., N. S., 624, 
626, 126 Am. St. Rep. 189.”

In Mountain City Missionary Baptist Church v. Wag­
ner, 193 Tenn. 625, 249 S. W. 2d 875, the deed is an ordi­
nary deed conveying certain real estate. After the haben­
dum clause there appears the following language: “ But

Appendix A



30

it is distinctly understood that if said property shall cease 
to be used by the said Missionary Baptist Church (for any 
reasonable period of time) as a place of worship, that said 
property shall revert back to the said M. M. Wagner and 
his heirs free from any encumbrances whatsoever and this 
conveyance become null and void. ’ ’ The g’rantor was M. M. 
Wagner. The Court said: “ When we thus read the deed, 
as a whole, we find that the unmistakable and clear inten­
tion of the grantor was to give this property to the church 
so long as it was used for church purposes and then when 
not so used the property was to revert to the grantor or 
his heirs. The estate thus created in this deed is a deter­
minable fee.”

In Magness v. Kerr, 121 Ore. 373, 254 Pac. 1012, 51 
A. L. R. 1466, the deed contained the following provision, 
to-wit: “ Provided and this deed is made upon this condi­
tion, that should said premises at any time cease to be used 
for cooperative purposes, they shall, upon the refunding 
of the purchase price and reasonable and equitable ar­
rangement as to the disposition of the improvements, re­
vert to said grantors.”  The Court held that this was a 
grant upon express limitation, and the estate will cease 
upon breach of the condition without any act of the grantor.

For other cases of a determinable fee created under 
substantially similar language see: Doff'elt v. Decatur 
School District No. 17, 212 Ark. 743, 208 S. W. 2d 1; Regular 
Predestinarian Baptist Church of Pleasant Grove v. Park­
er, 373 111. 607, 27 N. E. 2d 522, 137 A. L. R. 635; Board of 
Education for Jefferson County v. Littrell, 173 Ky. 78, 190 
S. W. 465; Pennsylvania Horticultural Society v. Craig, 
240 Pa. 137, 87 A. 678.

We have held in Ange v. Ange, 235 N. C. 506, 71 S. E. 
2d 19, that the words “ for church purposes only”  appear­
ing at the conclusion of the habendum clause, where there

Appendix A



31

is no language in the deed providing for a reversion or for­
feiture in event the land ceases to be used as church prop­
erty, does not limit the estate granted. To the same effect: 
Shaw University v. Ins. Co., 230 N. C. 526, 53 S. E. 2d 656.

In Abel v. Girard Trust Co., 365 Pa. 34, 73 A. 2d 682, 
there was in the habendum clause of the deed a provision 
for exclusive use as a public park for the use and benefit 
of the inhabitants of the Borough of Bangor. The Supreme 
Court of Pennsylvania said: “ An examination of the deed 
discloses that there is no express provision for a reversion 
or forfeiture. The mere expression of purpose will not 
debase a fee.”  To the same effect see: Miller v. Village 
of Brookville, 152 Ohio St. 217, 89 N. E. 2d 85, 15 A. L. R. 
2d 967; Ashuelot Nat. Bank v. Keene, 74 N. H. 148, 65 A. 
826, 9 L. R. A. (NS) 758.

In North Carolina we recognize the validity of a base, 
qualified or determinable fee. Hall v. Turner, supra; 
Williams v. Blizzard, 176 N. C. 146, 96 S. E. 957; Turpin 
v. Jarrett, 226 N. C. 135, 37 S. E. 2d 124. See also: 
19 N. C. L. R. pp. 334-344: in this article a helpful form is 
suggested to create a fee determinable upon special limi­
tation.

When limitations are relied on to debase a fee they 
must be created by deed, will, or by some instrument in 
writing in express terms. Abel v. Girard Trust Co., supra; 
19 Am. Jur., Estates, Section 32.

In the Barringer Deed in the granting clause the land is 
conveyed to plaintiff “ upon the terms and conditions, and 
for the uses and purposes, as hereinafter fully set forth.”  
The habendum clause reads, “ to have and to hold the 
aforesaid tract or parcel of land . . . upon the following 
terms and conditions, and for the following uses and pur­
poses, and none other, to-wit. . . . The lands hereby con­
veyed, together with the other tracts of land above referred 
to (the Shore, Wilson and City of Charlotte lands) “ as

Appendix A



32

forming Revolution Park, shall be held, used and main­
tained by the party of the second part”  (the plaintiff 
here, “  . . .  as an integral part of a park, playground and 
recreational area, to be known as Revolution Park and 
to be composed of the land hereby conveyed and of the 
other tracts of land referred to above, said park and/or 
recreational area to be kept and maintained for the use 
of, and to be used and enjoyed by persons of the white race 
only.”  The other terms and conditions as to the use and 
maintenance, etc., of the land conveyed are omitted as not 
material. The pertinent part of the reverter provision of 
the deed reads: “ In the event that the said lands com­
prising the said Revolution Park area as aforesaid, being 
all of the lands hereinbefore referred to . . . and/or in 
the event that the said lands and all of them shall not be 
kept, used and maintained for park, playground and/or 
recreational purposes, for use by the white race only . . . 
then, and in either one or more of said events, the lands 
hereby conveyed shall revert in fee simple to the said 
Osmond L. Barringer, his heirs and assigns,”  provided, 
however, that before said lands shall revert to Barringer, 
and as a condition precedent to the reversion, Barringer, 
his heirs or assigns, shall pay unto plaintiff or its suc­
cessors $3,500.00.

Barringer by clear and express words in his deed lim­
ited in the granting clause and in the habendum clause the 
estate granted, and in express language provided for a 
reverter of the estate granted by him, to him or his heirs, 
in the event of a breach of the expressed limitations. It 
seems plain that his intention, as expressed in his deed, 
was that plaintiff should have the land as long as it was 
not used in breach of the limitations of the grant, and, if 
such limitations, or any of them, were broken, the estate 
should automatically revert to the grantor by virtue of

Appendix A



33

the limitations of the deed. In our opinion, Barringer 
conveyed to plaintiff a fee determinable upon special limi­
tations.

It is a distinct characteristic of a fee determinable upon 
limitation that the estate automatically reverts at once 
on the occurrence of the event by which it is limited, by 
virtue of the limitation in the written instrument creating 
such fee, and the entire fee automatically ceases and de­
termines by its own limitations. Collette v. Town of Char­
lotte, supra; First Universalist Society v. Boland, supra; 
Brown v. Independent Baptist Church of Woburn, supra ; 
Copenhaver v. Pendleton, 155 Va. 463, 155 S. E. 802, 77 
A. L. R. 324; Tiffany: Law of Real Property, 3rd Ed., Sec­
tion 217. No action on the part of the creator of the 
estate is required, in such event, to terminate the estate. 
19 Am. Jur., Estates, Section 29.

According to the deed of gift “ Osmond L. Barringer, 
his heirs and assigns”  have a possibility of reverter in the 
determinable fee he conveyed to plaintiff. It has been 
held that such possibility of reverter is not void for re­
moteness, and does not violate the rule against perpetuities. 
19 Am. Jur., Estates, Section 31; Tiffany: Law of Real 
Property, 3rd Ed., Section 314.

The land was Barringer’s, and no rights of creditors 
being involved, and the gift not being induced by fraud or 
undue influence, he had the right to give it away if  he chose, 
and to convey to plaintiff by deed a fee determinable upon 
valid limitations, and by such limitations provide that his 
bounty shall be enjoyed only by those whom he intended to 
enjoy it. 24 Am. Jur., (lifts, p. 731; Devlin: The Law of 
Real Property and Deeds, 3rd Ed., Section 838; 38 C. J. S., 
Gifts, p. 816. In Grossman v. Greenstein, 161 Md. 71, 155 
A. 190, the Court said: “ A donor may limit a gift to a 
particular purpose, and render it so conditioned and de­
pendent upon an expected state of facts that, failing that

Appendix A



Appendix A

state of facts, the gift should fail with it.”  The 15th head- 
note in Brahmey v. Rollins, (N. H.) 179 A. 186, reads: 
“ Right to alienate is an inherent element of ownership of 
property which donor may withhold in gift of property.”  
We know of no law that prohibits a white man from con­
veying a fee determinable upon the limitation that it shall 
not be used by members of any race except his own, nor of 
any law that prohibits a negro from conveying* a fee deter­
minable upon the limitation that it shall not be used by 
members of any race, except his own.

If negroes use the Bonnie Brae Golf Course, the deter­
minable fee conveyed to plaintiff by Barringer, and his 
wife, automatically will cease and terminate by its own 
limitation expressed in the deed, and the estate granted 
automatically will revert to Barringer, by virtue of the 
limitation in the deed, provided he complies with the con­
dition precedent by paying to plaintiff $3,500.00, as pro­
vided in the deed. The operation of this reversion provi­
sion is not by any judicial enforcement by the State Courts 
of North Carolina, and Shelley v. Kraemer, 334 U. S. 1, 92 
L. Ed. 1161, has no application. We do not see how any 
rights of appellants under the 14th Amendment to the 
U. S. Constitution, Section 1, or any rights secured to them 
by Title 42 U. S. Code, Sections 1981 and 1983, are violated.

If negroes use Bonnie Brae Golf Course, to hold that 
the fee does not revert back to Barringer by virtue of the 
limitation in the deed would be to deprive him of his prop­
erty without adequate compensation and due process in 
violation of the rights guaranteed to him by the 5th Amend­
ment to the U. S. Constitution and by Art. 1, Sec. 17 of 
the N. C. Constitution, and to rewrite his deed by judicial 
fiat.

The appellants’ assignment of error No. 1 to the 
conclusion of law of the court that the Barringer deed 
vested a valid determinable fee in plaintiff with the pos­



35

sibility of a reverter, and assignments of error No. 3 and 
No. 4 to the conclusion of the court that in the event any of 
the limitations in the Barringer deed are violated, title to 
the land will immediately revert to Barringer and that the 
use of Bonnie Brae Golf Course by negroes will cause a 
reverter of the Barringer deed, are overruled.

The case of Bernard v. Bowen, 214 N. C. 121, 198 S. E. 
584, is distinguishable. For instance, there is no limita­
tion of the estate conveyed in the granting clause.

Now as to the Abbott Realty Company deed. This deed 
conveyed as a gift certain lands to plaintiff upon the same 
terms and conditions, and for the same uses and purposes, 
and for the white race only, as set forth in the Barringer 
deed. This deed contains a reverter provision, if there is 
a violation of certain limitations of the estate conveyed, but 
the reverter provision does not provide that, if the lands 
of Revolution Park are used by members of a non-white 
race, the lands conveyed by Abbott Realty Company to 
plaintiff shall revert to the grantor. In our opinion, the 
estate conveyed by Abbott Realty Company to plaintiff is 
a fee determinable upon certain expressed limitations set 
forth in the deed, with a possibility of reverter to Abbott 
Realty Company if the limitations expressed in the deed 
are violated and the reverter provision states that such 
violations will cause a reverter. That was the conclusion 
of law of the Trial Judge, and the appellants’ assignment 
of error No. 2 thereto is overruled. However, the reverter 
provision does not require a reverter to Abbott Realty 
Company, if the lands of Revolution Park are used by 
negroes. Therefore, if negroes use Bonnie Brae Golf 
Course, title to the lands conveyed by Abbott Realty Com­
pany to plaintiff will not revert to the grantor. See: 
Tucker v. Smith, 199 N. C. 502, 154 S. E. 826.

The Trial Judge concluded as a matter of law that if 
any of the reverter provisions in the Abbott Realty Com­

Appendix A



3 6

pany deed were violated, title would revert to Abbott 
Realty Company, and that if negroes use Bonnie Brae Golf 
Course, title to the land granted by Abbott Realty Com­
pany will revert to it. The appellants’ assignments of 
error Nos. 5 and 6 are to this conclusion of law. These 
assignments of error are sustained to this part of the con­
clusion, that if negroes use Bonnie Brae Golf Course, title 
to the land will revert to Abbott Realty Company: and 
as to the other part of the conclusion the assignments of 
error are overruled.

The appellants’ assignment of error No. 7 is to this 
conclusion of law of the Trial Judge, that the deed from 
the city of Charlotte to plaintiff created a valid determin­
able fee with the possibility of a reverter, and that as the 
city of Charlotte has only one municipal golf course, the 
use of Bonnie Brae Golf Course by negroes will not cause 
a reversion of title to the property conveyed by the city 
of Charlotte to plaintiff, for that said reversionary clause in 
said deed is, under such circumstances void as being in 
violation of the 14th Amendment to the U. S. Constitution.

From this conclusion of law the city of Charlotte and 
the plaintiff did not appeal. We do not see in what way 
appellants have been aggrieved by this conclusion of law, 
and their assignment of error thereto is overruled.

The appellants also include as part of their assignments 
of error Nos. 3, 4, 5 and 6 these conclusions of law of the 
Trial Judge numbered 7 and 8. No. 7, that the plaintiff 
is the owner in fee simple, free of any conditions, reserva­
tions or reverter provisions of the property which was 
conveyed to it by W. T. Shore and T. C. Wilson. The city 
of Charlotte has not appealed from this conclusion of law, 
and we are unable to see how appellants have been harmed, 
so their assignments of error thereto are overruled. No. 8, 
that Revolution Park, in which is located Bonnie Brae

Appendix A



3 7

Golf Course, was created as an integral area of land, com­
prising the various contiguous tracts conveyed to plaintiff 
by Barringer, Abbott Realty Company, city of Charlotte, 
Shore and Wilson, and to permit negroes to use for golf 
any part of said land will cause the reverter provisions in 
the Barringer and Abbott Realty Company deeds imme­
diately to become effective, and result in title of the plain­
tiff terminating, and the property reverting to Barringer 
and Abbott Realty Company. As to this conclusion of 
law the assignments of error are sustained as to that part 
which states that, if negroes use Bonnie Brae Golf Course, 
the reverter provision in the Abbott Realty Company deed 
will become effective and title will revert to Abbott Realty 
Company: as to the other parts the assignments of error 
are overruled.

Judgment will be entered below in accordance with this 
opinion.

Modified and affirmed.

Appendix A

Judgment of the Supreme Court of North Carolina 
entered June 30, 1955

This cause came on to be argued upon the transcript of 
the record from the Superior Court, Mecklenburg County. 
Upon consideration whereof,

It is adjudged by the Court here that the opinion of the 
Court, as delivered by the Honorable R. Hunt Parker, Jus­
tice, be certified to the said Superior Court, to the intent 
that the judgment be and the same is hereby modified and 
affirmed as indicated in said opinion.

And it is considered and adjudged further, that the de­
fendant, except Osmond L. Barringer and City of Char­
lotte, and sureties to the appeal bond, Dr. J. D. Martin and 
A. E. Spears do pay the cost of the appeal in this Court 
incurred, to wit, the sum of sixty-seven and 9 0 ..............dol­
lars ($67.90), and execution issue therefor.



38

APPENDIX B

Petition for Rehearing Denied

On the back of Petition to Rehear is written the fol­
lowing :

“ Petition to Rehear Denied 
This 1 November 1955.

R . H u n t  P arker 
Carlisle W . H iggins 

Associate Justices Supreme Court 
of North Carolina.”

The above was tiled in the Office of the Clerk of the 
Supreme Court on November 1, 1955.



39

APPENDIX C

An Ordinance to Set Aside and Dedicate 
Certain Lands of the City of Charlotte for 

Park and Recreation Purposes.

W hereas, By the terms of an offer dated August 31, 
1927, Abbott Realty Company, Osmond L. Barringer, W. T. 
Shore, T. C. Wilson, Male L. Toomey and husband, T. C. 
Toomey, have offered and agreed in writing to convey to 
the Charlotte Park and Recreation Commission, of the City 
of Charlotte, N. C., and its successors, certain lands lying in 
and near the southwestern section of the City of Charlotte 
and along Irwin Creek, containing 90 acres, more or less, 
as described in said written offer, a copy of which is hereto 
attached marked “ Exhibit A ”  and made a part hereof, said 
lands being offered for use by the City of Charlotte, through 
its Park and Recreation Commission, for parks, play­
grounds, park-ways and municipal golf courses for use by 
persons of the white race only and upon the conditions as 
fully set forth in said writing hereto attached marked 
‘ ‘ Exhibit A  ’ ’, and upon the further condition that the whole 
and every part of the tract of land now owned by the City 
of Charlotte, lying to the south of and adjoining the said 
lands so offered as aforesaid, be set aside and dedicated 
by the City of Charlotte as part and parcel of the said park 
and play-ground to be used under the supervision of the 
Charlotte Park and Recreation Commission for a park, 
play-ground, municipal golf courses and other recreational 
activities;

A nd w hereas , The said o ffe r  has been approved by the 
Charlotte Park and Recreation Commission and said Com­
mission has recommended its immediate acceptance by the 
City of Charlotte:



4 0

Now, THEREFORE, THE BOARD OF COMMISSIONERS OF THE 
C ity  of C harlotte do ordain :

1. That the tract of land belonging to the City of Char­
lotte, lying along Irwin's Creek, adjoining the lands of 
Toomey, Shore and Wilson et al., be, and the same hereby 
is, set aside, dedicated and designated as a park and recre­
ation area for use by people of the white race only as a 
park, play-ground, municipal golf courses and any other 
recreational activities under the general supervision and 
control of the Charlotte Park and Recreation Commission, 
and its successors in office, the said land being more particu­
larly described by metes and bounds as follows:

Situate, lying and being in Charlotte Township, 
Mecklenburg County, State of North Carolina— 
B eginning  at the point of intersection of the center 
line of Irwin Creek and the southerly margin of West 
Tremont Avenue, and running thence with the said 
margin of Tremont Avenue three lines as follows:
(1) S. 60 deg. 48' E. 139.4 feet; (2) S. 38 deg. 44' E. 
59.9 feet; (3) S. 22 deg. 42' E. 259.2 feet to a stake in 
Toomey’s line; thence with three of Toomey’s lines: 
(1) S. 43 deg. 14' W. 643 feet to a stake; (2) S. 30 
deg. 31' E. 830 feet to a stake; (3) S. 46 deg. 55' E. 
373.5 feet to a stone; thence S. 50 deg. 15' W. 151 
feet to a stake; thence S. 41 deg. 25' W. 680 feet to a 
stake; thence S. 31 deg. 17' W. 523 feet to a stake; 
thence S. 41 deg. 30' W. 1386 feet to a stake; thence 
N. 1 deg. 15' E. 130 ft. to a stake; thence N. 6 deg. 
14' W. 814 ft. to a stake; thence N. 25 deg. 30' W. 
1160 ft. to the center of Irwin Creek; thence up and 
with the center or Irwin Creek to the point or place 
of B eg in n in g .

Appendix C



41

Said land being so designated, set aside and dedicated 
for the uses set forth above upon the following terms and 
conditions, to wit:

1. Said land shall be used as an integral part of a park 
area to be composed of the land above described and 
of the lands which the several land owners referred to 
above have agreed to convey for park purposes; and, in 
the event that the lands so agreed to be conveyed by the 
above named land owners for park purposes shall not at 
any time for the period of twelve consecutive months be 
used, kept and maintained for park, play-ground and recre­
ational purposes, then the lands so dedicated and set aside 
by the City of Charlotte as aforesaid shall cease to be park, 
play-ground or recreation land and shall revert to the City 
of Charlotte.

2. The City of Charlotte reserves and shall have the 
right to keep, maintain, extend, repair, replace and/or en­
large and tap on to the present sewer line or outfall now 
located across the lands dedicated by the City of Charlotte 
as aforesaid, together with the right to enter upon the said 
land at any and all reasonable times for the purpose of 
enjoying and exercising the rights so reserved.

3. The City of Charlotte shall have and hereby reserves 
the right to continue to use as a dumping ground that part 
of the said lands so dedicated which is now being used for 
such purpose until completion of the incinerator plant by 
the City of Charlotte, such use, however, not to extend for 
longer than August 1, 1929.

4. That the offer of the parties above named, copy of 
which is hereto attached marked “ Exhibit A ”  be, and the 
same hereby is, approved and accepted; provided, however, 
that the City of Charlotte does not hereby obligate itself 
and shall not be taken, held or construed as obligating itself

Appendix C



4 2

to carry out any of the terms and conditions of said offer 
other than the dedication by it of the land referred to above 
upon the terms hereinbefore set forth.

Approved as to form, Feb. 21, 1929:

/ s /  J no . A. M cR ae

City Attorney

Appendix C

Exhibit “ A”

COPY

Charlotte, N. C.
August 31st, 1927.

To th e  P ark  and R ecreation C ommission  
oe th e  C ity  oe C harlotte :

We are pleased to offer to the City of Charlotte through 
you, for Park and Play Ground purposes, our lands de­
scribed as follows, free from encumbrance :

Beginning at the point of intersection of a vertical 
line drawn through the center of the arch of the 
Southern Railway culvert on the southeastern side 
of the culvert where it intersects the thread of the 
stream of Irwin Creek, running south and extending 
100 yards, more or less, on both sides of the thread 
of said stream, and with that width, of 100 yards 
more or less, following the thread of the stream in 
its meanderings, southerly to the lands of the City



4 3

of Charlotte. Subject, however, to such variations 
in the width of the land on either or both sides of 
said stream as are necessitated by the contour of 
said land and streets as shown on Wilmoore map, 
and according to the sketch made thereof by the City 
of Charlotte Engineer at the direction of Dr. Parker 
of the National Park and Play Ground Association, 
which sketch is hereto attached and marked “ Ex­
hibit A ” , except the said lands on 0. L. Barringer’s 
side of the said stream shall take only part of the 
hill between Bissel Mill and Wilmont Bridges; also 
the whole of Lots 9 to 16, Block 46, of Wilmoore if 
said lots are improved for children’s playground.

We offer these lands to the City of Charlotte upon the 
following conditions:

(1) Said lands are to be used by the City of Charlotte 
through its Park and Recreation Commission for white 
people’s parks and play grounds, parkways and municipal 
golf courses only.

(2) Said lands shall be taken over by the said Park 
and Recreation Commission of the City of Charlotte within 
24 months from the date of this offer and shall be beauti­
fied, maintained, kept up and improved by the City of 
Charlotte acting through its Park and Playground Com­
mission at a cost and expenditure of an average of not less 
than $5000.00 per year for the period of 8 years, beginning 
from the time when the said lands are taken over by the 
said Commission, and after said period, said lands shall be 
maintained as such parks and play grounds, so as to keep 
them in suitable condition for aforesaid purposes.

Appendix C



44

(3) Said park lands within two years shall have con­
structed along either one side or the other of said stream 
a 20' top soil driveway, according to specifications of Meek. 
Co. Highway Com., from Wilmount Bridge to the old water 
or grist mill, which was used by Cornwallis in the Battle 
of Charlotte during the Revolutionary War, and said drive­
way shall lead into the seventy-three and nine-tenths (73.9) 
to 100 acre tract of land adjoining and lying south of the 
Bissel Road and which tract is now owned by the City of 
Charlotte.

(4) Said land now owned by the City of Charlotte shall 
likewise be set aside by the said City as part and parcel 
of this Park and Play Ground, under the supervision of the 
said Parks and Play Grounds Commission of the City of 
Charlotte for a Park, Play Ground and Municipal Golf 
Course as aforesaid.

(5) In the event all of our said lands and that of the 
City are not kept and maintained at an expenditure of at 
least an average of $5000.00 annually for 8 yrs. as afore­
said by the said City of Charlotte, acting through the said 
Parks and Recreation Commission, and in the event said 
lands are not used and maintained for Parks and Play 
Ground purposes only as aforesaid, or are allowed to fall 
into disuse for as long as one year, then, in either event, 
our said land shall revert in fee simple to the undersigned 
donors, each donor to have so reverted back to him, or it, 
such identical land hereby offered by him, or it, as is ac­
cepted by the said City of Charlotte.

Appendix C



4 5

I n  w itness w h ereof , we the aforesaid undersigned land 
owners have hereunto set our hands and affixed our seals, 
this the 31st day of August, 1927.

A bbott R ealty C ompany  
By F, C. A bbott, Pres.

Appendix C

Osmond  L. B arringer. ( seal) 
W . T . S hore ( seal.)
T . C. W ilson ( seal)
M aie L. T oomey ( seal)
T . C. T oomey ( seal)

A ttest :

T . M. A bbott

Secretary

N orth  Carolina 
M ecklenburg  C ounty  
C it y  of C harlotte

We approve the above offer and recommend its imme­
diate acceptance by the City of Charlotte.

This the 18th day of Feb. 1929.

J ohn  H il l  T ucker  
M rs. J . A . Y arbrough 
J. L. W ilk in so n  
Carol I). T aliaferro 
M rs. W . T. S hore

Charlotte Park & Recreation Commission 
of the City of Charlotte



Appendix C

N orth  Carolina 
M ecklenburg  C ounty

We, the undersigned Mayor and Commissioners, consti­
tuting the Board of Commissioners of the City of Charlotte, 
upon the approval of the Park & Play Ground Commission 
of said City and recommendation thereof, hereby accept the 
above offer of the land owners aforesaid, and agree to the 
terms thereof, and according to said terms we hereby agree 
to set aside for the use of the said Park and Playground 
Commission, the lands of the City of Charlotte referred to 
in said offer.



47

APPENDIX D

An Ordinance Amending the Ordinance Entitled
“An Ordinance to Set Aside and Dedicate Certain 

Lands of the City of Charlotte for Park and 
Recreation Purposes.”

W hebeas, On the 21st day of February, A. D., 1929, the 
Board of Commissioners of the City of Charlotte duly 
adopted an ordinance entitled “ An Ordinance to set aside 
and dedicate certain lands of the City of Charlotte for 
Park and Recreation purposes” ; and whereas, by the terms 
of the said ordinance, the dedication of the lands therein 
described was conditioned upon the gift to Charlotte Park 
and Recreation Commission of certain lands by Male L. 
Toomey and husband, T. C. Toomey, and others; and 
whereas the said Charlotte Park and Recreation Commis­
sion has decided that it does not need the small area of land 
heretofore proposed to be given by Maie L. Toomey and 
husband, as set forth in said ordinance, in the development 
of the said park area and does not desire to take same; 
and whereas the other donors of land constituting the park 
and recreation area referred to in the said ordinance have 
agreed to the elimination of the said Toomey lands from 
the park area:

Now, thebefobe, The Board of Commissioners of the 
City of Charlotte do ordain:

1. That the small area of land heretofore proposed to 
be given by Maie L. Toomey and husband, T. C. Toomey, to 
form part of the Park and Recreation area referred to in 
the ordinance mentioned above may be eliminated from the 
said park or recreation area.

2. That the said ordinance entitled “ An Ordinance to 
Set Aside and Dedicate Certain Lands of the City of Char­



48

lotte for Park and Recreation Purposes,”  adopted by the 
Board of Commissioners of the City of Charlotte on the 
21st day of February, 1929, be, and the same hereby is 
changed and amended by striking out therefrom all refer­
ences to Maie L. Toomey and husband, T. C. Toomey, and 
by striking out therefrom all references to any land given 
or offered to be given by the said Maie L. Toomey and 
husband, T. C. Toomey, as a part of the said park and rec­
reation area.

3. That the ordinance referred to above and heretofore 
adopted by the Board of Commissioners of the City of 
Charlotte on February 21, 1929, as changed amended by 
the foregoing sections, be, and the same hereby is in all 
respects fully ratified and confirmed.

The foregoing ordinance was put on three readings and 
duly passed and adopted on each and declared to be an 
ordinance.

Appendix D