Clayton v. Gilmer County Court
| Decision Date | 07 November 1905 |
| Citation | 52 S.E. 103,58 W.Va. 253 |
| Parties | CLAYTON v. GILMER COUNTY COURT. |
| Court | West Virginia Supreme Court |
Submitted June 9, 1905.
Syllabus by the Court.
Injunction lies against a county court to prevent it from taking private property for a public road, without having paid, or secured payment of, compensation therefor.
A controversy as to the title of the property so taken, or sought to be taken, turning on the construction of plaintiff's deed, constitutes no obstacle to such jurisdiction, and the court may determine in such case the question of title by construing the deed.
When ambiguity in the terms of a deed renders the meaning uncertain, parol evidence of the conditions under which it was executed and the character and situation of the property may be considered, in connection with its terms in arriving at the intention of the parties, which is the test by which to determine its legal effect.
In construing a deed, words which are repugnant to and irreconcilable with other terms clearly applicable to admitted and established facts recited in the deed must be rejected, and all other words must be given some effect.
When a deed conveys a tract of land, and gives to the grantee, as an appurtenance thereof, the right to open and use a private road along one side of it, it will be presumed that the grantor did not intend to retain a very long and narrow strip of land between the tract conveyed and the road so provided for; and, when such road is described as intended to run between the tract of land conveyed and an adjacent tract belonging to a third party, it will be presumed, in the absence of anything on the face of the deed, or in the circumstances and situation and property, indicating the contrary, that the grantor did not intend to retain a strip of land between the road and the lands of such third party so narrow as to be of no practical use to him.
When a road so designed and provided for is described as an extension of an existing road, lying between a portion of the land conveyed and a lot belonging to R., so as to run between the land conveyed and a tract of land belonging to O., and at the corner of the lands of R. and O. there is a slight angle made by their lines running to the corner from nearly opposite directions, the road will follow said two lines, and have, at the corner aforesaid, a corresponding angle notwithstanding the deed, calling for one of the lines of the road as a boundary of the land conveyed, describes that boundary as a single line between two monuments, and as running with "line of alleys." In such case, the use of the word "alleys" will be deemed to refer to the old road as one alley, and to the extension thereof as another, and to signify intent to locate the road and the boundary line so as to run with the lines of the two adjacent tracts of land, and leave, between the tract conveyed and the adjacent lands, only sufficient space for the road.
A deed which calls for the line of a private road as a boundary of the tract by it conveyed, and gives to the grantee the right to open and use such road, does not pass to the grantee the title in fee to any part of the road.
When a private right of way is enlarged into a public road by the joint action of the owner of the fee and the public authorities, the easement or right of way is neither injured nor destroyed, and no right to compensation or damages on account thereof accrues to its owner.
Appeal from Circuit Court, Gilmer County.
Action by Dora A. Clayton against the county court of Gilmer county. From a decree perpetuating a preliminary injunction, defendant appeals. Modified and affirmed.
L. H. Barnett and R. F. Kidd, for appellant.
A. L. Holt and Hamilton & Morris, for appellee.
Dora A. Clayton obtained a preliminary injunction against the county court of Gilmer county, restraining it from taking and interfering with a portion of a certain piece of land belonging to her and certain rights of way appurtenant thereto, which injunction was afterwards made perpetual, and said county court has appealed from the decree by which the court refused to dissolve the injunction and perpetuated it.
The object of the injunction was to prevent the establishment and maintenance of a public road on the land in question, on the ground that the plaintiff, having title thereto, could not be deprived of it until compensation therefor had been paid or secured to her, and on the further ground that the order establishing said road was invalid, because made at a special term, the notice of which did not specify the establishment of said road as one of the purposes for which said term was called. The county court, in its defense, asserted that the road was not located upon any portion of the plaintiff's land, but upon a strip of land, described as an alley, belonging to S. H. Whiting, adjacent to complainant's land, and over which she had a private road or way, by virtue of an express grant thereof in her deed from Whiting, from whom she had purchased the land to which this private way was appurtenant. On the 24th day of May, 1902, two deeds were made by which this alley seems to have been created or provided for. One was made between S. H. Whiting and wife, parties of the first part, W. D. Whiting and wife, parties of the second part, and D. U. O'Brien and wife, parties of the third part, effectuating two or three exchanges of land among the parties. Either by these, or some other one, Mellie O'Brien, wife of D. U. O'Brien, obtained title to a tract of land lying adjacent to a certain other tract owned by S. H. Whiting, and this deed gave to S. H. Whiting the use, for himself and his vendees, of
a 16-foot road, formerly provided for and possibly opened, which came up to the corner of the two adjacent tracts of S. H. Whiting and Mellie O'Brien. The other deed was from S. H. Whiting to Dora A. Clayton, and conveyed to her the Whiting land lying adjacent to that of Mellie O'Brien, and on the south side thereof, except the said alley, which was left beween them. The quantity thus conveyed was estimated to be four acres, and the deed conferred upon the grantee, Dora A. Clayton, "the right to open, make, maintain, and use for herself and vendees the 16-foot road described in deed between the grantors herein and W. D. Whiting, bearing date herewith, and the right to extend the said road with like privileges between Mellie O'Brien's lot and the lot hereby conveyed, and the said road to run between the said two lots the full length of the lot herein conveyed." The extension so contemplated is mentioned in the description of the land conveyed as a 16-foot alley. The description reads as follows: "Beginning at a stake, corner to 14-foot alley, and running thence N. 28 1/4° E., 275.8 feet, to a stake; N. 22 1/4° E., 104.5 feet, to a stake; N. 54 1/2° W., 400 feet, to a stake above the old sheep shed; S. 28 3/4° W., 485.6 feet, to a stake at 16-foot alley; thence, with line of alleys, 70 3/4° >> E., 406.6 feet, to the beginning, containing 4 acres, by surface measure."
The beginning corner, "corner to 14-foot alley," is well established by the evidence. If there is any evidence against that location as the begining corner, it is so slight in quantity and light in character as to be not worthy of notice. Commencing there, and following the calls of the deed, the closing line intersects the first line at a point within the beginning corner several feet. This is due to an error in the course of that line as described in the deed, which should have been, if a straight line to the beginning corner was intended, "S. 68 1/2° E.," instead of "S. 70 3/4° E." The surveyor accounts for this discrepancy by saying he did not ascertain the course, but took it for granted that it was the same as the line of Mellie O'Brien, and that the course of her line was S. 70 3/4° E. Mellie O'Brien's land, or the part of it fronting on the alley, was then under fence, so that the location of her line was apparent and its course easy of ascertainment. If the intention was to leave the 16-foot alley or road, and nothing more, between the two tracts of land, the road could not run from the beginning corner clear through without an angle at a point some distance west of the beginning. The 16-foot road already provided for, the extension of which was contemplated, ran past the beginning corner of the Dora Clayton land, probably 100 feet or more--how far is immaterial--up to the corner of the O'Brien land, following the line of a lot known as the "Riddle Lot." At that corner, the division line between the O'Brien land and the Whiting land purchased by Mrs. Clayton took a course slightly different from the line between the Riddle lot and the Clayton land, so that an angle at that point in the road became necessary, if the intention was to leave a strip no more than 16 feet wide between the Clayton lot and the O'Brien lot, and the last line of the Clayton lot could not be a straight line. It was necessary to make an angle in it to correspond with the angle at the corner of the Riddle and O'Brien lots, so that her line would run S. 68 1/2° E. to that point, and thence S. 74 1/2° E. to the place of beginning.
Assuming that, upon a proper construction of the Clayton deed, her line would be straight from the stake at the 16-foot alley to the beginning point, the county court opened its road along that line on the south side thereof. If that be a proper construction of the deed, and the deed does not confer title to any part of the alley, then no part of her land has been taken; but if, under a proper construction of that deed, the alley is not straight, but runs with the Riddle line to the O'Brien corner, and then with the O'Brien line, the road is...
To continue reading
Request your trial