Chambers v. Roanoke Indus. & Agricultural Ass&n

• Decision Date: 15 September 1910
• Citation: 111 Va. 254,68 S.E. 980
• Court: Virginia Supreme Court
• Parties: CHAMBERS v. ROANOKE INDUSTRIAL & AGRICULTURAL ASS'N et al.

68 S.E. 980

111 Va. 254

CHAMBERS

v.ROANOKE INDUSTRIAL & AGRICULTURAL ASS'N et al.

Supreme Court of Appeals of Virginia.

Sept. 15, 1910.

1. Municipal Corporations (§ 661^*)—Streets —Closing—Municipal Authority.

In the absence of authority from the General Assembly, a city cannot authorize an agricultural association to fence in part of a public street and erect barns, etc., thereon.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 661.*]

2. Municipal Corporations (§ 661*)—Highways (§ 165*)—Ownership.

Streets and highways belong not partially, but entirely, to the public at large, and the supreme control over them is in the Legislature.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1432-1437; Dec. Dig. § 661;* Highways, Dec. Dig. § 165, *]

3. Highways (§ 153*)—Obstruction as Nuisance.

Any unauthorized obstruction which unnecessarily impedes or incommodes the lawful use of a highway is a public nuisance at common law.

[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 299, 417, 419; Dec. Dig. § 153.*]

4. Boundaries (§ 13*)—Land on Navigable River.

The line of land bounded by the Roanoke river is the low-water mark.

[Ed. Note.—For other cases, see Boundaries, Dec. Dig. § 13.*]

5. Dedication (§ 63*) — Streets — Abandonment.

A dedication by recording a map of land as streets in an addition to a city was inchoate as to unopened streets, and was abrogated as to an unopened street 75 feet wide, where it was fenced 65 feet wide for several years, and has been so maintained by the public and those interested.

[Ed. Note.—For other cases, see Dedication, Cent. Dig. §§ 103-106; Dec. Dig. § 63.*]

Appeal from Circuit Court of City of Roanoke.

Bill by one Chambers against the Roanoke Industrial & Agricultural Association and another. From decrees for respondents, complainant appeals. Reversed.

Smith & Wingfield, for appellant.

Hall, Woods & Jackson, for appellees.

HARRISON, J. On January 16, 1906, the appellant entered into a contract in writing •with the appellee, by which he agreed to sell and convey to it 10 acres of land in the city of Roanoke, the eastern line to be the line of Truenian and Plunkett, the northern line to be Pleasant avenue, the southern line to be Roanoke river, and the western line to run through the lands of appellant at such point as 10 acres surveyed will locate it. Subsequently appellant had the land surveyed, and in conformity with such survey executed and delivered a deed to appellee which both parties supposed contained 10 acres.

The bill in this case was filed in July, 1906, by the appellant, alleging that, shortly after the deed was executed and delivered to the appellee by him, he discovered that the tract of land thereby conveyed contained more than 10 acres as the result of a mistake in the survey which he had followed in making the deed, and that the survey by which the deed was made did not conform to the boundaries prescribed by the contract. The bill further alleged that the appellee association, claiming to act 'Under the authority of a resolution of the city council of Roanoke, was fencing up a strip of Pleasant avenue 35 feet wide, extending the full length of the land conveyed, and that which remained in the ownership and possession of appellant, and was engaged in erecting upon that part of Pleasant avenue so fenced up sheds, stables, and other buildings to be used for fairground purposes. Appellant further alleged that the effect of this action of appellee was to deprive him of his frontage on Pleasant avenue; that said avenue was his only outlet and right of way, except with great inconvenience in distance and travel; that he occupied the property as a home; and that the sheds, stables, and other buildings being placed in the avenue for the purpose intended would amount to a nuisance, and be a menace to the health of his family, and greatly depreciate and damage the value of his property.

The bill makes the appellee association and the city of Roanoke parties defendant, and prays that each be enjoined and restrained from obstructing Pleasant avenue in the manner alleged in the bill, or in any way interfering with the right of appellant to the unlimited enjoyment of the use of the entire street or highway. The prayer of the bill, further, is that the alleged mistake in the deed executed and delivered by the appellant to the appellee association be corrected, and the deed made to conform to the intention of the parties.

The city of Roanoke answered the bill, asserting its power to authorize the fencing up of part of Pleasant avenue to be used for fairground purposes, and denying that the appellant was injured thereby. The answer of the appellee association asserts the same propositions contended for by the city of Roanoke, and claims that the tract of land conveyed to it by the appellee contained.13 of an acre less than 10 acres, and asks that the purchase price be abated accordingly.

The circuit court granted an injunction in accordance with the prayer of the bill, and subsequently, on August 6, 1906, dissolved the same. On September 21, 1908, the cause was heard on the right of appellant to have the deed reformed as prayed for, and a decree was rendered holding that according to the terms of the contract, in pursuance of which the deed was made, the south line of the land sold was the low-water mark of the Roanoke river; and further holding that Pleasant avenue, the northern line of the land sold, was 75 feet wide, and appointing a surveyor to survey the land in accordance with the decree. From these two decrees this appeal was allowed.

We are of opinion that the court erred in...