Clifton v. Town Of Weston

• Decision Date: 28 November 1903
• Citation: 46 S.E. 360,54 W.Va. 250
• Court: West Virginia Supreme Court
• Parties: CLIFTON . v. TOWN OF WESTON.

46 S.E. 360

54 W.Va. 250

CLIFTON .

v.TOWN OF WESTON.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1903.

AFFIRMATIVE ALLEGATION — BURDEN OF PROOF—LIMITATIONS — MANDATORY INJUNCTION—OBSTRUCTION OF HIGHWAY.

1. A hill alleges that certain deeds of plaintiff cover a certain strip of ground claimed by the defendant as part of a public street, which is denied by the answer. The burden of proof is on the plaintiff to establish such allegation.

2. The bill alleges title by adverse possession, which is denied by the answer. The burden of proof is on the plaintiff to show that such possession for the period of 10 years has been continuous, actual, hostile, notorious, and exclusive.

3. The syllabus in the case of Ralston v. Weston, 33 S. E. 326, 46 W. Va. 554, 76 Am. St. Rep. 834, approved.

4. In a case plainly calling for it, a mandatory injunction will be awarded to compel a nuisancer to remove obstructions from a public highway.

¶ 4. See Highways, vol. 25, Cent. Dig. §§ 430, 431.

(Syllabus by the Court.)

Appeal from Circuit Court, Lewis County; C. C. Higginbotham, Special Judge.

Bill by Ella Clifton against the town of Weston. From a decree dissolving an injunction, plaintiff appeals. Affirmed.

W. W. Brannon and H. M. Russell, for appellant.

Edward A. Brannon, for appellee.

DENT, J. Ella Clifton complains of a decree of the circuit court of Lewis county dissolving an injunction obtained by her against the town of Weston. Deducting from the bill and answer the numerous, cumbrous, and unnecessary allegations contained therein, this controversy narrows itself to the right of the public to an easement for public uses in a small strip of ground situated within or adjacent to Mulberry street in the town of Weston. Plaintiff claims this strip, first, by virtue of her title papers for certain lots abutting on Mulberry street; second, by virtue of long continuous adverse possession thereto under claim or color of title. The defendant positively denies both of these claims. This casts on the plaintiff the burden of making good such claims by her proof. As to the first, she introduces no evidence to establish it; hence we may justly regard it as abandoned. As to the second, plaintiff fails to show such hostile, actual, notorious, exclusive, continuous possession under claim of title as would destroy the public easement. The title to the land is not involved. Her deeds for her lots confer on plaintiff the title to the land to the middle of Mulberry street, subject only to the public easement, and she has the right to the possession and use of the same so long as she does not interfere with such public easement. Spencer v. Point Pleasant R. R. Co., 23 W. Va. 406; Ralston v. Weston, 4C W. Va. 544, 33 S. E. 326, 76 Am. St. Rep. 834. Her possession and inclosure thereof is not hostile to the public so long as the easement is not needed for public use. It will be presumed that such possession is in subordination to the rights of the public until there is a plain and positive disclaimer of the public rights, the assertion of adverse title, and notice to the proper legal authorities. Flynn v. Lee, 31 W. Va. 487, 7 S. E. 430; Hudson v. Putney, 14 W. Va. 561; Clarke v. McClure, 10 Grat 305; Jarvis v. Grafton, 44 W. Va. 453, 30 S. E. 178; Taylor v. Philippi, 35 W. Va. 554, 14 S. E. 130. Nor will her possession and obstruction thereof by fences and buildings be deemed a public nuisance, but rather a permissible use, until she has notice to remove such obstructions. So that her holding could not be deemed adverse until she refused to remove such obstructions and brought home notice to the proper authorities that she was claiming possession not in subordination to, but in opposition to, the public easement. While she holds the title to the land, the public easement therein is common property, in which she enjoys the right of user along with the public generally, and there is no good reason why she should not use the whole thereof, and the public easement remain in abeyance, until such time as the public necessities might require the same. The law never presumes that a citizen, whose duty is to preserve, is engaged in destroying, public rights, until the undutiful intent of such citizen is established by her own evidence. If it was her original purpose to defraud the pub lic in taking possession of the street, she should now be able to establish such intention, with notice to the proper legal authorities. Failing to do so, the presumption must be in favor of the integrity of her citizenship and the legality of her actions. Foley v. County Court (decided at this term) 46 S. E. 246; Commonwealth v. Moorehead, 118 Pa. 344, 12 Atl. 424, 4 Am. St. Rep. 599. Even allowing the statute of limitations applicable to cases of this character, under the decision of Wheeling v. Campbell, 12 W. Va. 36, plaintiff has failed to establish her right to the benefit thereof. This court, however, has emphatically and advisedly disapproved of the doctrine sought to be established in the case of Wheeling v. Campbell, and since unwittingly followed in some subsequent cases, and has finally determined that such doctrine is not now, and never was, the law of this state. Ralston v. Weston, 46 W. Va. 544, 33 S. E. 326, 76 Am. St. Rep. 834. The plaintiff insists that, if the law is adhered to, many persons in Weston will suffer the loss of valuable property they have acquired by fencing in the public highways of the town. If such be true, they ought to suffer. Persons who are so indifferent to the Golden Rule and their public obligations as to make the destruction of public easements the source of private gain deserve no commiseration at the hands of violated law. The more there are of such persons, the greater the need of those sovereign principles that prevent private aggression of public rights. The mistaken departure from these principles in the case of Wheeling v. Campbell has caused endless fictitious claims to portions of the public highways to spring up all over the state, to be bolstered up by false swearing and manufactured evidence, to the great detriment of public interests and private morality. The law as vindicated will put a stop to all such claims, restore respect for public rights, and promote the welfare and peace of all communities alike. No man can or should be permitted to acquire in any manner whatsoever the sovereign rights of the people contrary to their sovereign will. Opposition to this doctrine tends to anarchy pure and simple.

The court has already said so much on the subject of public easements heretofore that a continuance thereof has become nothing more than a vain repetition and a waste of words. Foley v. County Court, and Ralston v. Weston, cited; McClellan v. Weston, 49 W. Va. 669, 39 S. E. 670, 55 L. R. A. 898; Weston v. Ralston, 48 W. Va. 170, 36 S. E. 446. The circuit court dismissed the plaintiff's bill, and wholly ignored the defendant's prayer for affirmative relief. The dismissal of the bill thus carried the answer with it, and was equivalent to a refusal of the relief prayed. By the dismissal of the bill the matter in controversy was determined against the plaintiff, and became res adjudicata, and, having the parties before it, the court should have gone on, and given the defendant complete re-lief, so as to end the litigation between the parties over the subject-matter of the suit. The dismissal of the bill carries with it the general replication, and leaves the answer, in so far as it seeks affirmative relief, without replication. Under section 35, c. 125, Code 1899, its affirmative allegation on which is founded its prayer for affirmative relief must be taken to be true. The only real question of controversy presented by both bill and answer was as to whether the survey and plat made by Peter Flesher of Mulberry street were correct. The plaintiff alleged they were not, but failed to sustain such allegation by proof, and her bill was dismissed. This was an adjudication of the issue in favor of the defendant. From the proof and the pleadings it is apparent that the plaintiff abandoned claim to the controverted strip of ground under her title papers, and relied wholly on her possession under the statute of limitations to destroy the public easement. This being determined against her, she was without a case, and presented no defense to the affirmative allegations and prayer of the answer. Such being the state of the pleadings, the court should have entered a decree forever settling the controversy between the parties in accordance with the prayer of the answer, and thus put an end to further litigation.

The decree is amended so as to award a mandatory injunction requiring the plaintiff to remove all obstructions placed by her on Mulberry street as shown by the survey and plat of Peter Flesher, and, as so amended, is affirmed, and the cause is remanded to the circuit court, with directions to enforce the performance of such mandatory injunction.

On Petition for Rehearing.

Plaintiff insists that the affirmative of the issue in this case was on the defendant. The only issue presented by the bill and answer and general replication was as to whether the plaintiff's deeds covered the strip of land in controversy. Plaintiff alleged that they did, and further alleged that the survey made by Peter Flesher was incorrect, in that it showed that plaintiff's deeds did not cover the strip of land in controversy. If plaintiff's deeds did cover the strip of land in controversy, then the Peter Flesher survey would be incorrect, but, if the plaintiff's deeds did not cover the strip of land in controversy, then the Peter Flesher survey is correct. The whole issue, therefore, depended on whether the plaintiff's deeds covered the strip of land in controversy. Plaintiff, to sustain her equity, alleged that they did. This defendant denied. Hence the issue. Without such affirmative allegation, the plaintiff's bill was without equity. When such...