Carson v. Land
| Decision Date | 18 April 1922 |
| Citation | 90 W.Va. 781 |
| Court | West Virginia Supreme Court |
| Parties | George R. Carson v. Jackson Land and Mining Company et als. |
Where the owner of a tract of land lays the same off into lots, streets and alleys, and constructs a bridge connecting one of the streets so laid off with a street of an incorporated city lying on the opposite side of a practically impassable obstruction, and makes a plat upon which the lots, streets, alleys and bridge are shown, and records said plat in the office of the clerk of the county court, and sells the lots indicated thereon with reference thereto, the purchasers of such lots, as an incident to their purchases, acquire an easement in such streets and alleys, and the bridge shown upon said plat, whether the same are ever formally accepted by any public authority or not. (p. 783).
The duty to maintain an easement in such condition that it may be enjoyed is upon those entitled to its use, in the absence of some contractual or prescriptive obligation upon the owner of the servient estate to so maintain it. (p. 784).
Where the owners of a tract of land lay the same off into lots, streets and alleys, and connect one of the streets thus laid off with an incorporated city lying across a practically impassable hindrance or obstacle, and make and record in the office of the clerk of the county court a plat showing such streets and alleys, and the bridge thus constructed, and make sale of the lots thuslaid off, there is no duty upon the parties so laying off said lots and selling the same to maintain said bridge in a reasonably safe condition for the use of the purchasers of the lots. (p. 784).
Error to Circuit Court, Harrison County.
Action by George R. Carson against the Jackson Land & Mining Company and others. Demurrer to declaration sustained, and plaintiff, not desiring to amend, judgment of nil capiat was rendered, and plaintiff brings error.
Affirmed.
G. H. Duthie and Law & McCue, for plaintiff in error. Millard F. Snider and Steptoe &Johnson, for defendants in error.
This suit was instituted for the purpose of recovering damages for the death of plaintiff's intestate from a fall through a bridge, which it is claimed the defendants were under the duty to keep in good order and repair. The court below sustained a demurrer to the declaration as amended, and the plaintiff, not desiring to further amend, a judgment of nil capiat was rendered, to review which this writ of error is prosecuted.
The declaration as amended alleges that in the year 1911 the defendants were the owners of a tract or parcel of land situate near the city of Clarksburg, and on the north side of the Baltimore and Ohio Railroad Company's tracks ana right-of-way; that at or about that time they caused the same to be laid off into town lots, streets and alleys, and made a plat thereof designating the same as the JacksonSnider and Maxwell Addition to Clarksburg, and caused said plat to be recorded in the office of the county clerk of Harrison county designated as "Montpelier Plat No. 1"; that since said time the defendants have offered for sale, and have sold to persons desiring to purchase the same, many of the lots or parcels of land shown upon said plat; that about the same time the defendants built a bridge designated on the said plat as Montpelier Bridge, constructed of iron, stone, etc., over and across the tracks of the Baltimore & Ohio Railroad Company, and about 25 feet above the level of said tracks; that said bridge was constructed for the accommodation of vehicles, as well as pedestrians desiring to use the same, and extends from the lots platted and laid off as aforesaid across the said railroad, and connects the same with Pike Street in the city of Clarksburg; that the said bridge was constructed by the defendants as a means of approach from the said city of Clarksburg to the said Montpelier Addition, and for the purpose of making access to said lots more convenient, and for the purpose of making said lots more attractive to prospective purchasers, and was open to and ever since has been used by all persons owning a lot or lots in said addition, or any persons transacting any business in said addition, and that the same is the only convenient and accessible way to said lots from the city of Clarksburg; that the said bridge was open to general use by the public, and that the public used the same by the invitation and consent of the defendants; that in September, 1917, the plaintiff purchased from the defendant land company a certain lot situate in said addition with the buildings thereon and appurtenances thereunto belonging, upon which lot he lived with his family at the time of the injury complained of, and that he. together with all members of his family, with the knowledge, invitation and consent of the defendants, used the said bridge across the said railroad tracks in going to and from the city of Clarksburg and other places; that at the time of the happening of the accident to the plaintiff's decedent the said bridge had not been accepted by the county court of Harrison county, or by the common council of the city of Clarksburg as and for a public bridge; that it became and was the duty of the defendant under the circumstances to keep the said bridge in reasonably good and safe condition for travel thereon and thereover by the plaintiff and members of his family; that the defendants did not perform their obligation in this regard, but allowed the said bridge to become out of repair and in an unsafe condition for travel, by means whereof, in June, 1920, the plaintiff's intestate, a boy four years of age, accompanied by his sister, when walking across said bridge in the exercise of due care, fell with great force and violence through the floor thereof to the tracks of the railway company underneath, and sustained injuries from which he died.
The defendants insist that the declaration does not state
a cause of action against them for two reasons: First, because the laying off of the tract of land into lots, streets and alleys, and making a plat thereof, together with the bridge in question, and selling lots in relation thereto, constituted an irrevocable dedication by the defendants of the streets, alleys and bridge shown upon said plat to the purpose thereon indicated, whether the same had ever been accepted formally by any public...
To continue reading
Request your trial
-
Freeman v. Sorchych
...responsibility of the residential users and not the homeowners' association that held title to the roads); Carson v. Jackson Land & Mining Co., 90 W.Va. 781, 111 S.E. 846, 848 (1922) (holding that the duty to maintain an easement was upon those entitled to its use rather than upon the servi......
-
Moran v. Edman, 21690
...contractual or prescriptive obligation upon the owner of the servient estate to so maintain it." Syllabus point 2, Carson v. Jackson Land and Mining Company, 90 W.Va. 781, 111 S.E. 846 (1922). Ross Maruka, Fairmont, for Michael F. Niggemyer, Charleston, for appellant. PER CURIAM: The appell......
-
Nielson v. Sandberg
... ... In short, all ... plaintiff proposed to do was to make a nonconsumptive use of ... the waters, which were flowing across defendant's land in ... the ditch of the factory and mill. In 1940, plaintiff ... commenced this action in the District Court to enjoin ... defendant from letting ... tenement * * * is not bound to maintain such easement or keep ... same in repair." ... Carson v. Jackson Land & Min. Co. , 90 W.Va ... 781, 111 S.E. 846, 847, is suit for damages resulting from a ... fall through a bridge built by ... ...
- Carson v. Jackson Land & Min. Co.