Deitz v. Johnson
| Decision Date | 12 December 1939 |
| Docket Number | 8957. |
| Citation | 6 S.E.2d 231,121 W.Va. 711 |
| Parties | DEITZ et al. v. JOHNSON. |
| Court | West Virginia Supreme Court |
W. G Brown, of Summersville, for appellants.
Wolverton & Callaghan, of Richwood, for appellee.
FOX President.
The appellants, who were the plaintiffs below and the owners of certain real estate situated in what is known as Richwood Heights, in the City of Richwood, complain of a decree of the circuit court of Nicholas County, entered on the 15th day of November, 1938, in which their prayer for the removal of obstructions to certain streets and alleys in Richwood Heights was denied, and their suit dismissed. The sole defendant is W. S. Johnson, the owner of a number of lots and parcels of land in Richwood Heights under a conveyance from John M. Wolverton and wife, dated the 14th day of April, 1925, and who, it is contended, in violation of the rights of the appellants, enclosed certain streets and alleys affecting their property.
On June 26, 1899, William A. Shawver conveyed to John D. Alderson Joseph A. Alderson and A. A. Hamilton a tract of 150 acres of land near Richwood, from which tract the said grantees conveyed 42 acres to Gordon L. Umbarger on June 13, 1902. On April 15, 1902, Hamilton conveyed his interest in the remaining portion of the 150 acres to Joseph A. Alderson and later, on December 26, 1906, John D. Alderson conveyed his interest therein to Joseph A. Alderson.
In the meantime in January, 1903, the then owners of the remainder of the Shawver tract subdivided a portion thereof into town lots and made up a plat thereof which was recorded on February 16, 1906. According to the recorded plat, there were 97 1/2 acres in the entire tract remaining after the conveyance to Umbarger. The plat shows the outer boundaries of the 97 1/2 acres, a tract of 5 acres therein conveyed to George W. McGraw on January 9, 1903, and the forty-three town lots, eight of which, not herein involved, were located on the west side of the county road, designated on the plat as Alderson Avenue. Fronting on the east side of said Avenue thirty-five lots were laid out, numbering one to thirty-five inclusive, and which will be hereinafter referred to as "the subdivision". It appears from this plat that between the south boundary of the subdivision and the outer boundary of the entire tract, bordering on lots 1, 2, 5 to 14, inclusive, there was an alley twenty feet wide. Extending east from Alderson Avenue through the subdivision, two parallel thirty-foot streets, Hamilton Street and George Street, were laid out. The plat does not show any alleys or streets north or east of the subdivision.
On September 25, 1904, the Aldersons conveyed to M. A. Dean a tract of 3-7/16 acres, immediately north of the subdivision the description of which, contained in the deed, shows that a strip of land, ten feet in width, between the Dean tract and the subdivision was not conveyed, and it was referred to as "an alley ten feet wide between the said town lots and this tract." By deeds dated February 25, 1905 and July 12, 1905, there were conveyed to I. R. Garrett and Letta L. Criswell, respectively, tracts of three acres and 1.3 acres situated east of the subdivision, which deeds show that the western boundary of the tracts conveyed thereby stops twenty feet short of the eastern line of the lots in the subdivision, leaving a strip of land twenty feet in width along the entire eastern boundary of the subdivision lots, which strip connected with the alley running along the southern boundary. On February 4, 1911, Joseph A. Alderson conveyed to C. E. Landacre a lot of one acre and 134 square rods, located south of the McGraw five-acre tract and north of the Criswell tract of 13 acres, and which bounded on the twenty-foot strip between the subdivision and the Criswell and Garrett tracts. Along the eastern boundary of the McGraw, Landacre, Criswell and Garrett tracts, there was, according to the evidence, a street laid out which was intended to afford an outlet from these tracts to the county road, but there is also testimony that this outlet is inadequate. The balance of the 97 1/2 acres was cut up into acreage lots, outlet therefor being provided either through the county road, which runs through the entire tract, or the street at the east of the tract, except as to one acre conveyed to one Miles, the outlet to which appears to be an alley south of the eight lots on the west side of Alderson Avenue.
This suit was instituted by E. E. Deitz and the devisees under the will of Clownie L. Alvis, who are the owners of the McGraw tract of five acres and the Landacre tract of one acre and 134 square rods. Later, Cornelia Vredenberg filed her petition in the cause and was made a party, presumably as a plaintiff, on account of her ownership of Lots Nos. 11, 12, 13, 14, 16 and 17 in the said subdivision. Of these lots, 11, 12, 13 and 14 are bounded by Hamilton Street on the north, the twenty-foot strip of land to the east of the subdivision, and the twenty-foot alley at the south side thereof; Lots 16 and 17 are bounded on the south by Hamilton Street and on the north by George Street; Lot 10, owned by Deitz, adjoins Lot 11 on the west and is bounded by Hamilton Street and the south alley, and was acquired by him by deed on December 27, 1913. The lots owned by Cornelia Vredenberg were conveyed to her by Carrie Fitzwater and husband, by deed dated September 5, 1933; Mrs. Fitzwater, under the names of Susan C., Caroline and Carrie, acquired title to Lots Nos. 12, 13 and 14 on the 11th of December, 1905, Lot 17 on December 6, 1909, Lot 16 on March 5, 1912, and Lot 11 on July 12, 1919. All of the lots and parcels mentioned above, except Nos. 10 and 16, were conveyed by the original owners of the 97 1/2 acres prior to the conveyance to Laura V. Wolverton, under whom the defendant claims.
On April 15, 1910, Joseph A. Arderson conveyed to Laura V. Wolverton the following lots in said subdivision: Lots Nos. 1 to 9, inclusive, No. 19, and Lots Nos. 21 to 35, inclusive, except Lot No. 32. Later, there was acquired either by Laura V. Wolverton or by her husband, John M. Wolverton, the 3-7/16 acre lot known as the M. A. Dean tract, north of the subdivision, and also a small parcel of the McGraw five acres and two parcels lying south of the subdivision conveyed by J. W. Oakford, one a tract of 2.40 acres, and the other a tract of .78 acres. Shortly after the Wolverton purchase, the Dean tract and all of the lots purchased as aforesaid, including the Oakford property, were cleared of standing timber and fenced. This enclosure included the alley between the Dean tract and the subdivision, all of George Street, and the alley south of the subdivision. Some encroachment was made upon Hamilton Street, reducing its width for part of the distance from thirty feet to twenty feet, and gates were, at some time, placed at the east and west ends of Hamilton Street, probably by Fitzwater in the first instance. It is clear that the action of Wolverton enclosing this property was not objected to by the Fitzwaters, who occupied the only residence located on the subdivision. It is in evidence that Fitzwater, the husband of the owner of the lots, assisted Wolverton as a laborer in doing some of the work necessary to bring about this enclosure, and in planting apple trees in George Street. At the south boundary of the subdivision a fence was first erected along the line of the Oakford property which Wolverton had acquired, leaving outside of Wolverton's enclosed boundary that part of the alley in the rear of the properties now owned by Vredenberg and Deitz. At the time of this enclosure, Lot No. 15, which borders on the alley at the east of the subdivision, was owned by M. J. Hamilton and no enclosure was made by Wolverton, either of that lot or the east alley. It appears from the evidence that Wolverton consulted Fitzwater at that time and that whatever was done with respect to enclosures was permissive in character, and there is not any evidence that as to Hamilton Street or the alley to the east and south of the subdivision his enclosure was in any way hostile. At that time George Street and the alley at the north of the subdivision had never been opened, and the closing of the same seems to have been acquiesced in and is apparently of no importance, unless it be to provide rear access to Lots 16 and 17. Up to the present time, the subdivision has been used only for general farm and orchard purposes, without regard to the platted streets and alleys, except for the use of Hamilton Street and the eastern alley.
On April 14, 1925, the Wolvertons conveyed all of their property in Richwood Heights and the Oakford property to the defendant, W. S. Johnson, including in the conveyance all of the thirty-five lots in the subdivision east of Alderson Avenue, although at the time he did not have title to the lots now owned by Vredenberg and Deitz. In addition to...
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