60 S.E.2d 273 (Va. 1950), 3666, Town of Grundy v. Goff

Docket Nº:3666.
Citation:60 S.E.2d 273, 191 Va. 148
Opinion Judge:[10] Spratley
Party Name:TOWN OF GRUNDY v. TRULA GOFF.
Attorney:[7] Pobst & Coleman, for the plaintiff in error.
Case Date:June 19, 1950
Court:Supreme Court of Virginia
 
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Page 273

60 S.E.2d 273 (Va. 1950)

191 Va. 148

TOWN OF GRUNDY

v.

TRULA GOFF.

No. 3666.

Supreme Court 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.

OPINION

SPRATLEY, J.

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 [191 Va. 151] (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,

Page 274

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:

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[191 Va. 152] 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 [191 Va. 153] 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 [191 Va. 154] 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...

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