Boughner v. The Town Of Clarksburg Et Al.

• Decision Date: 09 July 1879
• Citation: 15 W.Va. 394
• Court: West Virginia Supreme Court
• Parties: Boughner v. The Town of Clarksburg et al.

15 W.Va. 394

Boughner

v.The Town of Clarksburg et al.

Supreme Court of Appeals of West Virginia.

Decided July 9, 1879.

1.Courts of equity will restrain by injunction a town from constructing pavements on a person's land, where he has not dedicated the ground to public use, or where the ground has not been condemned according to law, for that purpose.

2. The principles asjdaid down in Plerpoint v. Tou'n of HarrisvUle, 9 W. Va. 215, as to the dedication of land to public use for a street, are equally applicable to the dedication of land to public use for sidewalks or pavements in towns.

3.Where the dedication is on condition, the terms of the dedication must be strictly complied with.

Appeal from and supersedeas to a decree of the circuit court of the county of Harrison, rendered on the 22d day of January, 1876, in a cause in said court then pending, wherein Daniel Boughner was plaintiff, and The Trustees and Commonalty of the Town ot Clarksburg and others were defendants, granted upon the petition of said Boughner.

Hon. C. S. Lewis, late judge of the second judicial circuit, rendered the judgment appealed from.

Moore, Judge, furnishes the following statement of the case:

This cause is presented upon an appeal from and su- persedeas to a decretal order, made in vacation, January

22, 1876, by Hon. C. S. Lewis, judge of the second judicial circuit, dissolving an injunction granted said Boughner of November 13, 1875, upon a bill filed by him against said defendants, to enjoin and restrain the defendants, &C, from building, erecting and constructing a certain pavement in the bill mentioned.

The bill alleges that plaintiff is the owner and seized in fee of two certain lots on Main street, in the town of Clarksburg, upon which lots he has erected storehouses in which he is now doing business as a merchant, which lots were conveyed to him, &c. that the trustees and commonalty of the town of Clarksburg, by its officers and agent, and employes, without the consent of plaintiff, and without having first condemned the ground on the said lots in the manner provided by law, are now, to-wit, on this 13th day of November, 1875, building, erecting and constructing on the south side of his said lots, and entirely on the said lots, on the north side of Main street, immediately west of one of his said storehouses, in the said town of Clarksburg, a brick pavement; that said pavement, if permitted to be constructed, will entirely prevent the plaintiff from passing into his said lots to reach his said storehouses with his horses and wagons, as he hath hitherto been accustomed to do, and will greatly !tinjure his business as a merchant. He further alleges that said trustees and commonalty of Clarksburg, refuse to make a crossing for horses and wagons across said pavement, if the same is erected, so that the plaintiff can cross and recross as he has hitherto been accustomed to do; the plaintiff therefore prays that the said trustees, &c. be enjoined and restrained from building, erecting and constructing said pavement on his said lots until they have condemned said ground upon said lots upon which they are erecting and constructing said pavement in the manner prescribed by law, and make a crossing for horses and wagons for the plaintiff over said pavement to pass into and from said lots, &c.

The defendants, the trustees and commonalty, &c, answered the bill, and admit that plaintiff owns in fee simple the lots set out in the bill, but insists that all tge ground on which the pavement is being laid, is not included in the lines of the said lots. In other words they answer, admitting they did direct the street commissioner in November, 1875, to construct the pavement on the north side of Main street, and on the south side of plaintiff's lot, from the southwest corner of said lot to the southeast corner of the lot owned by Holmes, and that said pavement was ordered to be laid and constructed without the consent of plaintiff. That the length of the proposed pavement is forty-one feet, and that plaintiff prevented them from proceeding with the work.

"Further answering, the defendants deny that the plaintiff has any right to obstruct or prevent the laying of said pavement, or that the same, if laid, will interfere with any right of the plaintiff, or take any ground, or any part of said lot, to the use of which the public are not entitled. In other words, the defendants deny that the plaintiff has any right, under any pretense of title to the same, to prevent or obstruct the building of said pavement, or to deny to the public, the town of Clarksburg, the use of the ground proposed to be taken for the same. If the plaintiff's pretensions were true even, and his denial of the right on the part of the town of Clarksburg to the use of said ground were well founded in fact, defendants insist and charge that his right to withhold such use could extend only to the ground embraced in the boundaries of his alleged title, and that outside of his pretended claim of title is a strip of ground over which it was proposed to lay and build said pavement, and the building upon which he unlawfully obstructed and prevented, that does not belong to him but to the public, and the right to control which belongs exclusively to these defendants.

'But the defendants, further answering, aver and charge that whatever rights the plaintiff might have had in said premises, so far as the exclusive right to use the same is concerned, have been surrendered by his own acts and conduct by a dedication of said ground to the The Town of public; that several years ago, perhaps in the year 1872, and prior to the erection of the brick storehouse now occupied by plaintiff and located on said lot, the plaintiff, in contemplation of the building of the same, and recognizing the power and authority vested by law in the defendants in respect to the erection of buildings within said town, and the regulation of streets, pavements, sidewalks and alleys, made a written application to the then trustees and commonalty of the town of Clarksburg, to establish officially the grade for sidewalks on both Main and Third streets, and also for an establishment of street lines, and for the usual permit and privilege to build on said streets; upon which application, the said trustees, &c, proceeded to establish the grades and lines of streets as aforesaid, and said plaintiff, in the erection of his said storehouse, conformed to the lines and grades on said street as thus established, as these defendants are informed and believe. A copy of said application in writing is here filed marked "A." "Further answering, defendants aver and charge that on the day ot 187, the said plaintiff asked and obtained permission to build and lay a pavement on the south side of his said storehouse, on Main street, on the north side of said street, from the southeast corner of said storehouse to the northwest corner of the same, and that he was allowed for building said pavement a credit on his taxes levied and collected by said town; and that from the time of the building of said pavement until recently, when said plaintiff unlawfully and in defiance and contempt of the authority and power of defendants erected a fence or rack on the south side of the same, the public have used and enjoyed the same. Defendants charge that'by the repeated acts of plaintiff, the said ground has been dedicated to the public, and that he has no right to obstruct' them in the use and enjoyment of the same, or to prevent these defendants, or their employes, from laying a pavement thereon for the use and convenience of the public. "Further answering, defendants deny that the building of said pavement will in anywise prevent or hinder the plaintiff from passing into his said lot to reach his storehouse in a propei manner with vehicles, horses, &c. Plaintiff has been passing in said lot over said pavement so far as laid, and with an impunity of boldness that defies authority.

"Further answering, defendants say that it has not been usual for them to lay and build crossings on pavements for the benefit of private individuals, and that they did not refuse to put in a crossing for said plaintiff as he alleges, as he never gave them the opportunity to either refuse or grant such privilege by making application for the same."

To the said answer plaintiff replied generally.. Exhibits were filed with the bill and answer, and depositions were taken by both parties, which are sufficiently stated in the opinion, and therefore need not be set out: in this statement.

E. Maxwell, for appellant, cited the following authorities:

2 Tucker 469; 4 Johns. 55; Williams on Injunctions p. 360, §6; Id. p. 567, §26; Kerr on Injunctions 296; 20 Gratt. 833; 8 Gratt, 636; 2 Waterman on Trespass 67; 2 Dillon on Corporations 598, ch. 17, §495.

Thomas W. Harrison, for appellee, cited the following authorities:

2 Rob. (Old) Pr. 165, 166, 231, 233; Dillon Mun. Corp. 677; 4 W. Va. 599; 1 Hild. Torts 550; 9 W. Va. 215, 12 W. Va. 36.

Moore, Judge, delivered the opinion of the Court: The first question presented in this case is: Had the court jurisdiction to restrain the Town of Clarksburg by injunction from constructing the pavement? The appellees insist that injunction was not the proper remedy but that the plaintiff should seek redress by action at law. The doctrine has been settled in this State, by the case of Pierpoint v. The Town of Harrisville, 9 W. Va. 215, that " an injunction will lie to restrain a town, from opening streets through a person's land, without first condemning it according to law, when there has been no dedication of such streets to public use." because the redress at law is utterly inadequate. Upon the same principles, courts of equity will restrain by injunction a town from constructing pavements on a person's land where he has not dedicated the ground to public use, or where the ground has not been condemned according to law, for that purpose.

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