Pence v. Bryant
| Decision Date | 28 November 1903 |
| Parties | PENCE v. BRYANT et al. |
| Court | West Virginia Supreme Court |
Submitted June 6, 1903
Syllabus by the Court.
1. Obstruction of a public street by an individual is a public nuisance and an indictable offense, and an injunction may be maintained to stop or abate it, not only by the county or municipality, but by an individual whose lot abuts on the street, and is materially injured by such obstruction.
2. One owning a lot abutting on a street may maintain an injunction against a person obstructing it by the erection of a permanent building upon it, if it injures the lot.
3. By section 28, c. 47, Code 1899, a town council may vacate a street, in whole or in part, for public welfare, but not that the ground may go to private use.
4. When land has been dedicated for a public street, and it has been accepted by long use by the general public as a street, so that retraction would be hurtful to the public, the dedication cannot be retracted, though no municipal order or action has accepted the dedication, and it is a valid street as between the dedicator and his alienees and the public. Without such corporate acceptance the town would not be chargeable with the street.
5. Can the owner of a lot upon a street, damaged in access by reason of the vacation of the street, recover damage from the town? Is such access a property right adhering to the lot, so that such vacation cannot be made without compensation?
6. The statute giving the town council power to vacate streets does not give it power to vacate a street or a part with sole intent and purpose for the benefit of a private person, or to free his land from public easement, but only for public ends and reasons. An ordinance of vacation made, not for public benefit or purpose, but only for the benefit of a private individual, is void.
7. Whether the motives of a town council in vacating a street are proper cannot be judicially inquired into, but the aim and purpose of the vacation, and the end accomplished, may be considered in passing on its validity. If the purpose effected by it is within the power of the council, its act will be valid; otherwise not.
8. An ordinance of a town council reducing the width of a street from 40 to 15 feet simply, not specifying what part of the street is to remain such, is void for uncertainty.
Appeal from Circuit Court, Mercer County; J. M. Sanders, Judge.
Bill by Jennie K. Pence against R. G. Bryant and others. Decree for defendants, and plaintiff appeals. Reversed.
R. C. & B. McClaugherty and Mr. Williams, for appellant.
A. W Reynolds, J. S Clark, and J. M. McGrath, for appellees.
Jennie K. Pence is the owner of a lot lying between Main and North River streets, in the town of Bramwell, Mercer county. It fronts on both streets. Along its side, between it and the depot lot owned by the Norfolk & Western Railroad Company, is a space of ground about 41 feet wide, and extending 125 feet between those streets. R. G. Bryant and W W. Hamilton purchased part of this parcel of land, and upon it were excavating for the erection of a building, its wall to be 15 feet distant, but leaving along her lot a street or alley 15 feet wide between Main and North River streets. Jennie Pence claims that the entire space was years ago dedicated by the Bluestone Coal Company as a public street and has been recognized by the town and used as such. The council of Bramwell, 22d January, 1902, adopted the following ordinance: "It appearing that the plat of the town of Bramwell, which is of record in the clerk's office of the county court of Mercer county, does not show the width of the street adjoining lot No. 1 in said town, and extending from Main street to North River street, and on the request of the Pocahontas Coal & Coke Company, who own the land lying between said street and the station grounds of the Norfolk & Western Railway, that council determine on the width of the street, it was, on motion, unanimously resolved, that the width of the street be fixed at fifteen feet, and hereafter to be known as Pence street, and to extend from Main street to North River street." When Bryant and Hamilton were engaged in the work of erecting their building, Jennie Pence obtained an injunction against their further work, but on hearing it was dissolved, and the court later refused to reinstate it, and she appeals.
For the defense it is claimed that equity has no jurisdiction, as title is in controversy, and the right in contest must be first adjudicated at law before an injunction can be allowed, and Watson v. Ferrell, 34 W.Va. 406, 12 S.E. 724, and Becker v. McGraw, 48 W.Va. 539, 37 S.E. 532, are cited to support this position. These cases have no application. This is no controversy as to title to land. The plaintiff claims no ownership in the ground. She claims that a public highway affording access to her property is being permanently taken from the public, and passage over it forever obstructed, to the special and lasting detriment of her property. If this is true, a public nuisance is being maintained; for from the earliest period the common law has branded the closing or obstruction of a highway as a public nuisance indictable as a public offense, and our Code 1899, c. 43, § 45, makes it an indictable offense. 4 Bl. Com. 167. That injunction lies in the first instance, without first having recourse to a law tribunal, to prevent a public nuisance in the start, to prevent its maintenance, and to abate it, is shown by abundant authority, and this includes obstruction of a highway. Moundsville v. Ohio R. Co., 37 W.Va. 92, 16 S.E. 514, 20 L.R.A. 161. Authorities collated in Town of Weston v. Ralston, 48 W.Va. 194, 36 S.E. 456. See Columbian Club v. State, in volume 2, p. 340, of that late valuable work, Amer. & Eng. Dec. in Eq. 340, and note, page 352; Huron Bank (S. D.) 66 N.W. 815, 59 Am.St.Rep. 769.
But though there is jurisdiction, there is a question, not of jurisdiction exactly, but whether the plaintiff has such interest as will enable her to invoke that jurisdiction. The nuisance is a public one. Beyond question the town could invoke such jurisdiction, but can she as an individual? The general rule is that an individual cannot enjoin a public nuisance, but, if it peculiarly affect him by material and substantial damage to the use and value of his estate, he can have the benefit of an injunction. Talbott v. King, 32 W.Va. 6, 9 S.E. 48; 2 Amer. & Eng. Dec. in Equity, 355. I conceive that I need not elaborate to show that when one is unlawfully building a house in a public street which gives access to a hotel, though it be not the only access, narrowing it from a street 41 feet wide to an alley of 15 feet running along the length of the hotel, an entrance being on that street, peculiarly affects the hotel in use and value as a great damage to it. As an abutter he has a peculiar interest; he is an adjoining owner, and has peculiar interest in the street. 2 Smith, Munic. Corp. § 1214; Elliott on Streets, § § 709, 876; 1 Am. & Eng. Ency. L. 224.
Counsel have discussed the question whether the space of 41 feet was dedicated to public use and accepted as a dedication, and whether its use as a street made it such. Then we meet with the town ordinance above given. It fixed the width of the street, if it never had been fixed; and, if it had been a street 41 feet wide, that ordinance operated as a vacation in part, if valid. Our statute gives a town council wide power to "vacate, close, open, alter," etc., ""roads, streets, alleys." Code 1899, c. 47, § 28. This subject is treated in that latest and elaborate work on Municipal Corporations by Smith (volume 2,§ 1283). It says: "Where the power to vacate a street is vested in the municipality, the exercise of that power is discretionary." "A part vacation, leaving access to the property one way the same as before, does not entitle the owner to damages." Elliott on Streets, § 879, states the same law. In section 451 we read: "Power to regulate and improve streets and sidewalks includes the power to determine their width." Our act gives all these powers. "A statute authorizing the vacation of a highway will, it seems, authorize the vacation of a part thereof." 15 Am. & Eng. Ency. L. 397.
The appellee says that the street claimed by Jennie Pence to be a street is not a street, because never dedicated or recognized by the corporate authority of Bramwell by council action since there is no evidence of acceptance of the dedication, and before acceptance it may be withdrawn, as may be said to have been done by the sale of a part of the street to the defendants. I think the lawbooks will sustain the position that for some purposes such municipal acceptance is necessary, for others not. If it is sought to charge the town with neglect to repair, it is necessary; but when the contest is, as in this case, between dedicator or his alienees and a private individual or the public, it is not indispensable. Hast v. Railroad Co., 52 W.Va. 396, 44 S.E. 155. "While acceptance by formal adoption by public authorities or by public user is necessary to impose on the public the duty to keep in repair a dedicated highway or street, still that is not necessary to the consummation of the dedication so as to cut off the owner from the power of retraction, or to subject the dedication to the public use wherever, in the estimation of such...
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