Buntin Et Ux v. City Of Danville

• Decision Date: 11 June 1896
• Citation: 24 S.E. 830,93 Va. 200
• Parties: BUNTIN et ux. v. CITY OF DANVILLE.
• Court: Virginia Supreme Court

24 S.E. 830

93 Va. 200

BUNTIN et ux.

v.CITY OF DANVILLE.

Supreme Court of Appeals of Virginia.

June 11, 1896.

Dedication — Manner and Effect — Trial — Coercion of Jcrt—What is Not.

1. A dedication of land for a street or road need not be in writing, but may be made in any manner which clearly and unequivocally indicates the intention of the owner; and a dedication, when made and accepted, by act of the authorities or by user, is irrevocable, and the right of the public cannot be affected by a subsequent occupation of the land by the owner of the fee, or another.

2. After a jury had been out a day and a half, and reported that they had not agreed, the trial judge stated to them that he "wished them to decide the case; that this was the second trial of the case, and that they would be kept together until the end of the term unless they did; that the case was a perfectly plain one, and ought to be decided in five minutes after reading the instructions and applying them to the facts." Held, that a verdict thereafter rendered would not be disturbed.

3. The fact that the court answered a question asked by the jury during their deliberation, without informing counsel until after verdict, will not vitiate a verdict which correctly decides the case.

Error to corporation court of Danville; A. M. Aiken, Judge.

Action by W. H. Buntin and wife against the city of Danville. Judgment for defendant, and plaintiffs bring error. Affirmed.

Withers & Barksdale and Peatross & Harris, for plaintiffs in error.

Geo. C. Cabell, for defendant in error.

RIELY, J. This is a suit in ejectment to recover a very narrow strip of land. The plaintiffs claim that the legal title to it is in the female plaintiff, through a long chain of title, while the defendant insists that it is a part of its Main street, as extended, by virtue of a dedication of it as a public road leading into the town by the original owner of the land, and that such dedication was made prior to the commencement of the title of the female plaintiff and of those through whom she claims, as well as prior to the enlargement of the corporate limits of Danville, and the extension of Old (now Main) street. The evidence negatives any idea that the road was the result of condemnation by the court, but it does appear from the proceedings of the county court of Pittsylvania county, as contained in the record, that the court recognized it as a public road, and appointed a surveyor to keep it in repair, as far back as 1825. While the record shows that the road was not the result of condemnation, it does not disclose when it was first dedicated by the owner of the soil, or opened by him, to the public. Nevertheless, it clearly shows that it existed as a highway prior to the commencement of the title under which the plaintiffs claim the land in controversy. "The principle of dedication by the act of the owner of land, " said Judge Staples in Harris' Case, 20 Grat. 833, "is now almost universally recognized as a part of the common law in this country." Dedication is an appropriation of land by its owner for the public use. It may be express or implied. It may be implied from long use by the public of the land claimed to have been dedicated. Dedication is not required to be made by a deed or other writing, but may be effectually and validly done by verbal declarations. The intent is its vital principle, and the dedication may be made in every conceivable way that such intention may be manifested. It must, however, be manifested by some unequivocal act, and is not effectual and binding until accepted. When the intention of the owner to make the dedication has been unequivocally manifested, and there has been acceptance by competent authority, or such long use by the public as to render its reclamation unjust and improper, the dedication is complete. City of Richmond v. Stokes, 31 Grat. 713; Talbott v. Railroad Co., Id. 685; Harris' Case, supra; Kelly's Case, 8 Grat. 632; Hall v. McLeod, 2 Metc. (Ky.) 98; Harding v. Jasper, 14 Cal. 642; Morgan v. Railroad Co., 96 U. S. 716; Dovaston v. Payne, 2 Smith, Lead. Cas. Eq. 213, and notes thereto; State v. Trask, 27 Am. Dec. 554, and the note thereto; 2 Greenl. Ev. § 662; and Washb. Easem. 180, 184. And when it is complete it is irrevocable. No obstruction of the sub-ject of the dedication or encroachment upon it by the original owner of the soil, or by any one else, will affect the dedication, or impair the right of the public to its benefits, unless the land so dedicated has been abandoned by the public, or by the proper authority. Harris' Case, supra; Skeen v. Lynch, 1 Rob. (Va.) 186; City of Cincinnati v. Lessee of White, 6 Pet. 431; Adams v. Railroad Co., 11 Barb. 414; Cook v. Harris, 61 N. Y. 448; City of Dubuque v. Maloney, 9 Iowa, 455; Washb. Easem. 188, and cases there cited; and Elliott, Roads & S., 132.

W. I. Lewis was the original owner of the land now owned by the female plaintiff, and also of much other land adjoining it. Upon the extension of the corporate limits of the town of Danville, a part thereof at least was taken into the corporation, and that now owned by the said plaintiff became lot No. 118 on the plat of the town. It was situate on the said public road, and was laid off so as to front 164 feet and 8 inches on Old or Main street. The lot was afterwards sold by Lewis in parcels to different persons. On January 10, 1823, he sold one parcel, fronting 23 feet and 6 inches on Old or Main street, to Samuel B. and Thomas Rawlins; on January 15, 1823, he sold another parcel adjoining it on the lower side, and fronting 47 feet on the said street, to John B. Roy; he next sold, on February 24, 1823, the parcel lying between that last mentioned and the road, fronting 70 feet Scinches on the said street, to James M. Williams, Sr.; and on December 30, 1823, he sold the remainder of lot No. 118, fronting 23 feet and 6 inches, to Anthony D. Haden, —which several parcels aggregate 164 feet and 8 inches, the entire front on Old or Main street of lot 118. The road referred to had been dedicated by the owner of the soil to the public, and was used by it, before he sold any of the parcels of land constituting lot 118; and in the conveyance to James M. Williams, Sr., the original grantee under whom the plaintiffs claim, of the parcel situate on the road, W. L Lewis, the grantor, expressly reserved the road from the operation of the conveyance. The road was also accepted, as we have seen, by the court of the county, as one of its highways. Its dedication was complete, effectual, and valid. The real question then in the case is narrowed down to this: Whether the disputed ground is a part of lot 118, or whether it is a part of the land dedicated to the public as a highway.

All of the parcels of land constituting lot 118, which were so sold off by Lewis, became by subsequent conveyances the property of Elsa B. Williams and her husband, James M. Williams, Jr., who, with her trustee, R. W. Lyles, sold and conveyed the same on October 4, 1864, to W. B. Millner. In describing the property it was stated in this deed that it fronted on Old or Main street 175 feet, when in fact, as has been shown, lot No. 118 had a frontage of only 164 feet and 8 inches. This glaring error is no doubt the origin of this controversy. The property so conveyed to W. B. Millner was sold by him, and, after passing through various hands, was acquired by Ann M. Keen, who, together with John K. Millner and wife, subsequently sold and conveyed it to Thomas J. Lee. He devised it to his widow, the female plaintiff, who afterwards married W. H. Buntin. In all of the conveyances made of the property after the deed from Elsa B. Williams and others to W. B. Millner, except in the conveyance to Thomas J. Lee, it was described as fronting 175 feet on Main street, and the error in the deed to W. B. Millner thereby perpetuated. But in the deed from Ann M. Keen to Lee, while it was described as fronting on Main street, the number of feet was left blank. This was probably due to a fact that will be hereafter adverted to. A wooden or frame hotel was first erected on the part of lot 118 which adjoined the road, and was sold by Lewis to James M. Williams, Sr. This burned down in 1854, and was replaced the next year by a brick structure. This was while Elsa B. Williams and her husband owned and resided upon the property. It was proved by James M. Williams, a son of Elsa B. Williams and James M. Williams, Jr., who was himself a son of James M. Williams, Sr., that he resided with his parents when the new hotel was erected in 1855, and that its walls were laid exactly upon the line of the foundation of the old hotel. This fact was also established by John C. Neal, a nephew of James M. Williams, Jr., and a witness for the plaintiff. It was further proved by Neal that he was present when the workmen commenced to lay the foundation of the new building; that the foundation of the old hotel was taken out, and the brick cleaned; that his uncle James M. Williams, Jr., pointed out to the workmen the boundary line of the property, stating that there was its limit; and that the brick wall of the new hotel was laid directly upon this line. He also testified that he knew the old hotel well, and that the street was no wider now than it had always been. The testimony of these two witnesses, who were so familiar with the property, and who had such excellent opportunities to leam its boundaries, would seem conclusive against the contention that any part of lot 118 is encroached upon by the extension of Main street, and to establish that the street merely includes the site of the old public road. This was a question for the jury, and their verdict was in accordance with this view.

It was shown in evidence that there was a porch to the old hotel, which projected several feet beyond the wall, and over the ground now in dispute, and that when the new hotel was erected it was built with three verandas, one to each...