City Of Wheeling v. Petitioner

• Decision Date: 17 November 1877
• Court: West Virginia Supreme Court
• Parties: City of Wheeling v. Campbell et al.

12 W.Va. 36

City of Wheeling

v.Campbell et al.

Supreme Court of Appeals of West Virginia.

Decided November 17, 1877.

1. Where it appears from a plat, and other evidence, that a street

in a city, has for more than forty years been used and occupied as a public street, and the deeds of property holders thereon, in their descriptions of their property, call for the street by name, and the plat shows that it was sixty-six feet wide at every point, except where a property holder has a building, where it is twenty-one inches less than sixty-six feet wide, and the house on the street twenty-one inches, was built several years after the plat was made, it will be presumed the street was dedicated to public use, and that it was of the width of sixty-six feet at the place where the house was so built.

2. The maxim nullum tempus occurrit regi, applies to sovereignty alone.

3. The statute of limitations, in the absence of an express provision to the contrary, runs against a municipal corporation, the same as against a natural person.

Appeal from an order of the circuit court of Ohio county, made on the 9th day of November 1875, dissolving an injunction entered theretofore in a cause in chancery wherein the city of Wheeling was plaintiff, and William Campbell and others were defendants.

The Hon. T. Melvin, judge of the first judicial circuit, entered the order complained of.

George W. Jeffers, for appellant, referred the Court to the following authorities:

Dillon on Mun. Corp., see 252, 518, 520, 521; O'Connor v. Pitts., 18 Pa. 189; People v. Carpenter, 2 Doug. (Mich.) 273; Wood on Nuisances, see 252; 28 N. Y. 398; 23 Vt. 92; 28 Vt. 448; 36 Barb. 303; 1 How. PI. Cr. 408; Wood on Nuisance, 243, 812, 840; Cross v. Mayor, &c, 18 N. J. Eq. 311; Drygest v. Schenck, 23 Wend. 448; Jersey City v. State, 1 Vroom 527; Simmons v. Connell, 1 Rhd. 519; 58 Pa. 263; 16 S. & R. 390; 2 Watts. 23; 9 Casey 202; 3 Barr 202; 3 Phil. 368; 4 Martin (La.) 1; 1 Whart. 469; 3 Pa. (Pen and Watts.) 253; 1 Beal (N. J.) 547; 2 Gray 161; 4 Cush. 276; 52

J. E. McKennan and L. S. Jordan, for appellee.

The following statement of the case was furnished by Johnson, Judge:

On the 11th day of September 1875 the city of Wheeling presented to the judge of the circuit court of Ohio county its bill in chancery, alleging, by acts of the General Assembly of Virginia, the incorporation of the town of Wheeling, &c, and the act of the said General Assembly, incorporating the city of Wheeling in 1836, and the act of January 29, 1824, authorizing the county court of Ohio county to appoint five commissioners, any three of whom might act, whose duty it should be, "to ascertain by actual survey the true divisions, metes and bounds of all such streets, walks, alleys and lots, in the said town of Wheeling, as by an order of the mayor and commonalty they shall be directed to survey and mark, and shall make, or cause to be made a correct plat of said survey so made, and the same shall sign with their own proper hands and seals, and lodge in the clerk's office of the county court of Ohio county, there to be recorded; which return and survey, so duly made and recorded, shall in all future litigations concerning such boundaries, streets, walks, alleys and lots, be deemed, held and taken, as full evidence and conclusive between the parties, from and after the 1st day;of April 1835; "that the county court did make such order, and appointed five commissioners to make such survey; and that the mayor and commonalty of the town of Wheeling also made the order required by said act, both of which orders are exhibited with the bill; and that four of said commissioners did in every respect, as required by said act, make such survey and plat, and that such plat was recorded; that by the several sections of the act incorporating the city of Wheeling it was provided, that "all the real and personal estate, and all the funds, rights, titles, taxes, credits, and claims, and rights of action of the mayor arid commonalty of the town of Wheeling, and of the several additions to said town, enclosed within the bounds aforesaid, or which are held in trust, or have been appropriated for the use or benefit of the said mayor and commonalty, or the inhabitants of said town, or of any of the said additions, shall be and the same are hereby transferred to, and vested in the said city of Wheeling;" that in that portion of the said town of Wheeling now known as the Second ward of the city of Wheeling, there was a street laid out by the proprietors of the land, extending from the Ohio river eastwardly crossing Main, Market, Fourth and Fifth streets, to or near the top of the hill; said street was called Madison street, and by the said act of the proprietors of the land, was dedicated to the public use, and has been used as a public street, by the inhabitants of said town and city of Wheeling, from the time of its dedication; that by the survey made by said commissioners the said Madison street, now Tenth street, was ascertained to be sixty-six feet wide from the river to the top of the hill; that the said city is the owner of the land within the boundaries of the said street; that by the 45th section of the charter of the city of Wheeling, "the council shall have authority within said city to lay out and cause to be opened any streets, walks, alleys, market grounds and public squares, or to extend or widen the same, first having obtained the title to the ground necessary for that purpose, and to graduate any street, walk, alley, market ground or public square^ which is or shall be established within said city, to pave or otherwise improve the same, to cause them to be kept open and in good repair, and generally to ordain and enforce such regulations respecting the same, or any of them, as shall be proper for the health, interests, or convenience of the inhabitants of said city."

The bill charges, that one William S. Campbell trustee for Theodosia McGinnis, and said Theodosia McGinnis, claim the right to erect a wall upon and extending into the south side of said Madison (now Tenth) street, at or near the intersection of said street with Market street, a distance over the true line of about twenty-one inches, and extending along, and on the said street, over the line about twenty-one inches for forty feet, and so claiming have contracted with John A. Armstrong, Alexander Coen and J. B. Armstong, partners as Armstrong, Coen & Co., for the erection of a building or wall for a building, forty feet long, and on Madison, (now Tenth) street, and upon and over the south line thereof twenty-one inches for their own private use; that said parties or some other persons unknown to plaintiff, employed by defendants, have commenced digging, and have dug into the said street and have laid a foundation wall for the said building, which wall extends over the true south line of said Madison (now Tenth) street twenty-one inches for forty feet along said street, against the consent and protest of the city of Wheeling; that said erection will cause an obstruction in said street and will prevent the inhabitants of said city from using that portion of said street occupied by said wall, or building, and will constitute a public nuisance, and will cause a very great loss arid injury to the said city of Wheeling and its inhabitants, and will defeat the purpose of the the proprietors, who dedicated the said land to the inhabitants of said town of Wheeling for a street; and that the injury so done will be irreparable. The prayer of the bill is, that said parties named as causing said obstruction be enjoined and restrained from erecting, or causing to be erected, the wall or building before mentioned, on or upon said Madison (now Tenth) street, until the further order of the court; and that upon the final hearing of the cause the injunction be made perpetual; and for general relief. The bill is duly sworn to.

The injunction was by the judge of said court granted on said 11th September 1875 as prayed for; and process duly issued with the injunction endorsed thereon was served on all the defendants.

The following is the plat referred to in the report of commissioners who made the survey, and which was recorded on the 20th September 1870:

The defendants, William S. Campbell, and Theodosia McGinnis, at November rules 1875 filed their answer to the bill; the substance of which is as follows: they admit that commissioners were appointed by the county court, as alleged in the bill, and that they made the survey and plat, as in said bill set forth, and that said plat is recorded in the office of the clerk of the county court; but they aver that said plat was not recorded in said clerk's office until 1870, and that it is of no legal force or effect, as evidence of the boundaries, of the streets within the city of Wheeling, because it was not recorded in said office before the year 1835; and they deny that the paper filed by the complainant as "Exhibit 3" is a true copy of any part of said plat; they admit that in the Second ward of said city" there is a street formely called Madison street, and now called Tenth street, extending from the Ohio river eastwardly, crossing Main and Market streets, which has been for a long time used as a public street by the inhabitants of the town and city of Wheeling, but they do not know whether the ground, over which said street passes, was ever dedicated by the owners to the town or city of Wheeling, and they do not admit that it was so dedicated, but ask that the complainant be required to prove such dedication; but they allege that no part of the ground, upon which they are building, as hereinafter stated, was ever so dedicated, or was ever used by the inhabitants of said town or city as a public street; these defendants deny that said street was ascertained by said commissioners to be sixty-sixty feet in width, and they allege that the width of said street was never legally ascertained and established;" ...