Town of Grundy v. Goff, 3666

• Decision Date: 19 June 1950
• Docket Number: No. 3666,3666
• Citation: 60 S.E.2d 273,191 Va. 148
• Parties: TOWN OF GRUNDY v. TRULA GOFF. Record
• Court: Virginia Supreme Court

Page 273

60 S.E.2d 273

191 Va. 148

TOWN OF GRUNDY v. TRULA GOFF.

Record No. 3666.

Supreme Court of Appeals of Virginia

June 19, 1950.

Pobst & Coleman, for the plaintiff in error.

S.H. & Geo. C. Sutherland and W. A. Daugherty, for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This is an action of unlawful entry and detainer instituted by Mrs. Trula Goff against the Town of Grundy to recover from the defendant the possession of a small strip of land on the eastern side of Main street within the corporate limits of the said town. Virginia Code, 1942 (Michie), section 5445, Code of 1950, Title 8, section 789-791. Mrs. Goff claimed that while in the actual, peaceful and exclusive possession of the land, she was forcibly ousted by the town within three years prior to the institution of this suit. The Town of Grundy contended that it owned the land as a part of what is known as 'Back Street' or 'Back Alley' of the town, and that it had been used by the public as a street or highway for more than fifty years. The case was tried before a jury, which after hearing the evidence, the instructions of the court and viewing the premises, returned a verdict for the plaintiff, Mrs. Goff. The motion of the defendant to set aside the verdict as contrary to the law and the evidence and without evidence to support it, and for error in the granting and refusing of instructions, was overruled by the court. Judgment was entered in accordance with the verdict.

The assignments of error before us relate solely to the sufficiency of the evidence to sustain the verdict. No questions are raised as to the instructions to the jury. There is no dispute as to the law involved, but rather as to the application of the law to the evidence.

Faced by a verdict in favor of the plaintiff, approved by the trial court, the plaintiff is entitled to have the evidence stated in the light most favorable to her. She is entitled to all just inferences deducible therefrom.

A plat and a brief history of the land involved and adjacent lands may be helpful in consideration of the evidence. The following plat made by C. B. Belcher, a mining and surveying engineer, was filed as an exhibit:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the plat the land in controversy is a strip about 5 feet wide fronting on Main street and running back therefrom 52.8 feet, lying adjacent to the north line of the lot shown as 'Taxi Stand.' The question involved is the correct location of the southern line of the alley, that is, the line between the alley and the 'Taxi Stand' lot.

No survey or map of the town showing the public streets and alleys therein was filed, nor was there evidence that such a plat had been made and approved by the council of the town. Code of 1950, section 15-765, formerly Code of Virginia, 1942 (Michie), section 2977.

No record of the board of supervisors of the county of Buchanan, in which Grundy is located, showing the dedication and acceptance of the disputed land as a public highway, was produced. The first recorded reference to the alley appears in a deed dated August 10, 1905, from R. E. Williams and wife conveying to W. L. Dennis a lot in the Town of Grundy fronting 87.5 feet on the east side of Main street and running back therefrom between parallel lines 52.8 feet. This lot was bounded on the north by Slate Creek, its northeastern and northwestern corners being marked by stakes in said creek. This deed contained the following language: 'There is, however, excepted from the operation of this deed and not hereby conveyed the public alley running parallel with and near Slate Creek.'

By deed dated May 24, 1924, W. L. Dennis and wife conveyed the same lot, with the same exception as to alley, to M. L. Goff. At the time of this deed a wooden store building stood upon the southern portion of the land conveyed, that is, south of the alley.

The wooden building and the land upon which it stood was rented by W. L. Dennis to V. C. Smith in 1916. About a year later, Smith, after obtaining the consent of Dennis, built a small addition about 6 or 8 feet wide on the northern side of the building for use as a soda fountain shop. Smith continued to use the building, with the addition thereon, until it was destroyed by fire in April, 1940.

In 1936, M. L. Goff erected a brick store building, called the 'Wigwam' on the plat, on the northern portion of the lot obtained from Dennis, leaving a space of 18 feet between that building and his wooden building on the southern portion of the lot. The space between the two buildings had been and was, at that time, used for travel as a passway or alley running nearly parallel with Slate Creek a distance of about 300 feet easterly from Main street. At the time of these proceedings, the eastern portion of the alley had been closed for many years.

On August 25, 1938, M. L. Goff and wife conveyed to Mrs. I. S. Ratliff, for a stated consideration of $8,500, a parcel of land described as fronting 26 feet on Main street, being the southerly portion of his 87.5 foot lot fronting on that street, described as being bounded on its north by a division line between it and an alley, the line being marked at its easterly and westerly ends by stakes placed on the edge of the alley.

On February 13, 1943, Mrs. I. S. Ratliff and husband reconveyed to M. L. Goff, for one dollar and other considerations, the above lot under the same description.

M. L. Goff died May 17, 1944, leaving a will in which he devised and bequeathed unto his wife, Trula Goff, 'during her natural life, or so long as she remains my widow, for the benefit of herself and our children, all the rents, royalties and profits from all of my real estate wheresoever situated or located, with all the rights and remedies for the collection of same.'

A. M. Ratliff, the husband of Mrs. I. S. Ratliff, testified that no money passed in the exchange of deeds between M. L. Goff and Mrs. Ratliff. The wooden building and its addition made by Smith then covered the strip of land in controversy. Ratliff said that Goff couldn't talk; that Goff having heard the town was considering the condemnation of a part of his lot, made the deed because he thought that Ratliff could defend its condemnation better than he could, and, therefore, he set a price for the property as something to go by in the event of such a proceeding. During the period the title was in his wife, Ratliff collected the rents, paid the taxes, remitted the balance to Goff, and made no charge for his services. When the Ratliffs moved from the vicinity, the lot was reconveyed to Goff.

After the wooden building was destroyed by fire in 1940, the land was leased, with the consent of Goff, to L. E. Mann for a taxi stand. The debris caused by the fire was removed and the lessee entered in possession of the premises and continued there until 1945.

After Mann's tenancy terminated, Mrs. Goff leased the same premises November 7, 1945, to Bill Goodman. Goodman put up a building ten by fourteen feet on the lot for use as an office and a waiting room for customers in his taxi-cab business. He had fourteen cars and parked nine of them on the lot. Goodman said he asked Mrs. Goff to put up fence posts so he could stay inside of the lines of the leased property, and that he used all of the property that was beyond 18 feet from the 'Wigwam' building.

Mrs. Goff testified that she twice had the land in question surveyed and on each occasion stakes had been placed along the northern boundary of the 'Taxi Stand' lot. After the surveyor's stakes, placed on the boundary line in the second survey, had been removed or destroyed, she caused to be placed on the same line two locust poles about 3 inches in diameter and about 3 or 4 feet high. She said these stakes correctly marked the division lines between her property and the alley, and that she and her tenants had used all of the lot south of the alley continuously, peacefully, and exclusively until July, 1946.

C. B. Belcher, the surveyor, identified the plat made by him. He surveyed the disputed land twice, about six months apart, the last survey being about six months after the bus terminal began operations. He said that in each instance he placed small stakes in the ground on a line 18 feet from the 'Wigwam' building designating the southern boundary line of the alley; that six months after his last survey, he could not find these stakes and he then placed other stakes along the same line by erecting locust poles in holes dug 3 feet in the ground. In his survey there was uncovered a wall 'laid up out of rock' running parallel with the alley 20.6 feet from the northern line of the bus terminal lot. He did not know why this wall had been placed there.

It appears that a concrete sidewalk had been constructed many years ago in front of the wooden building on the eastern side of Main street. This sidewalk ended at a point on the line which the plaintiff claimed was the southern boundary of the alley. It was in front of the land claimed by the town.

After M. L. Goff constructed the brick building to the north of the alley, some one put in a boardwalk 4 feet in width next to that building. This reduced the width of the alley for vehicular travel between the brick building and the land upon which the wooden store building formerly stood from 18 to 14 feet. The wood sidewalk was connected with a concrete sidewalk, 4 feet wide and 2 or 3 feet higher than the alley, which continued easterly along the alley.

There was evidence that the width of the alley had been informally discussed at meetings of the town council about 1939, and thereafter. The city attorney had been consulted, and apparently had advised that the town was entitled to the strip of land in question.

In July, 1946, Hassell Goff, son of Mrs. Goff, visited the premises. He found that one of the locust posts placed by his mother had been partly broken...