Dudding v. White
| Decision Date | 17 September 1918 |
| Docket Number | 3553. |
| Citation | 96 S.E. 942,82 W.Va. 542 |
| Parties | DUDDING ET AL. v. WHITE ET AL. |
| Court | West Virginia Supreme Court |
Submitted September 10, 1918.
Syllabus by the Court.
The proprietor of land through or along the boundary of which a way for public travel is established has a special right different from that of the public in the continued maintenance of the highway, if its abandonment will injuriously affect the access to and marketability of his land.
A county road established and opened pursuant to law continues as such until vacated or discontinued in the manner prescribed by law.
Upon a party asserting the discontinuance of part of a county road by alteration thereof from its former location to a new location rests the burden of showing affirmatively, not only the actual alteration and abandonment, but by what authority that result was produced.
A change in the location of part of a county road under the provisions of section 30 (Code 1913, c. 43, § 30 [sec. 1765]) and section 35, c. 43, Code 1906, giving to the county court authority upon petition, or "without petition in any case in which the interest of the people of the county requires it," to alter any public road, thus abandoning it on the former location under the provision of section 32 c. 43, Code 1906, requires some affirmative act or order of the court authorizing or directing the change.
A change in the location of part of a county road under the provisions of section 21, c. 43, Code 1906 (Code 1913, c. 43 § 21 [sec. 1747]), giving to the county surveyor authority to "change any county road in his precinct with the consent of the owner of the land in which such change is made," requires as a condition precedent thereto the consent of the owner of the land over which the road formerly ran.
It is no defense to a suit to enjoin an obstruction of a public road that the owner may have means of ingress to and egress from his land by another route.
Appeal from Circuit Court, Cabell County.
Bill by H. M. Dudding and others against L. R. White and others. Decree for defendants, and plaintiffs appeal. Reversed, and injunction made perpetual.
Campbell Brown & Davis, of Huntington, for appellants.
Geo. J McComas, of Huntington, for appellees.
The bill was filed to procure an injunction in part commanding the defendant to remove obstructions placed by him or by his direction in a road, alleged to be a highway, located and maintained by the county court for public travel in part of the land severally owned by each of them along a small stream known as Springdale branch, which separates each tract from the other and forms the boundary line between them. Both tracts were owned by James McCallister, and by his will, probated in 1856, and by mesne conveyance, title to each parcel finally vested in the parties to the suit, and whereby Springdale branch was declared to be the line of demarcation between the respective tracts; the tract of the plaintiff being on the east and the tract of the defendant on the west side thereof.
The road so located and maintained originally crossed Indian creek, of which Springdale branch is a tributary, on a bridge near and below the confluence of the two streams, and onto the land of the plaintiffs, and thence onto the lands of the defendant, 150 to 200 feet up Springdale branch from the bridge; the distance being approximated by witnesses. The situation of the respective parcels of land in respect to each other and Springdale branch and the county road, as originally located, is not controverted by the proof, though denied in part by the answer, to which there was a general replication. The proof shows and defendant admits the obstruction of the road as charged in the bill, but seeks to justify his action in that regard by claiming to be the owner of all the land east of Springdale branch not within the fence inclosing the land of the plaintiffs. This alleged ownership rests upon these grounds: First. A survey made by Hawkins at the instance and request of the former proprietors of the land now owned by the plaintiffs, to ascertain the acreage thereof preparatory to its division among them as coheirs at law. Hawkins, to obviate the difficulty of following the meanders of Springdale branch, its course being devious and circuitous, ran a straight line along it through the entire tract, whereby there was excluded from the inclosure all the land between that line and Springdale branch. Second. The relocation of the road by the direction or act of the surveyor of the road precinct in which the Charley's Creek road is situated, so as to place it entirely on the land of the defendant. Third. Adverse possession of the land west of the Hawkins line.
These grounds do not warrant the conclusions reached, nor sustain the claim based on them. Defendant had no interest in the dispute referred to Hawkins, had no part in his selection, was not a party to the agreement, and had no right to be affected by it. It was a matter peculiar and personal to the owners of other land. Indeed, it does not appear whether defendant knew when Hawkins was employed, or the purpose of the employment, or what he was employed to do, or what he had done, until after the service was performed. Besides, the mere abandonment of one road by the establishment of another in its stead could not under any circumstances vest title to the old route in any person other than the owner of the land on which it was located. By operation of law the title would pass and vest either in the present or in the former proprietor of the land, and, if in the latter, that title passed to the plaintiff by the deed subsequently made to him by them, a copy of which is filed as an exhibit in the cause.
Nor does the proof suffice to show the elements essential to establish adverse possession of the uninclosed land lying immediately west of the Hawkins line. Defendant admits he did not cause the small area to be charged on the land books of the county in his name for taxation separate from or additional to the area of the tract he owned west of Springdale branch.
Stated in the broad language of counsel, another argument is:
"That the road claimed to have been obstructed never reached plaintiff's land, nor afforded an outlet to the same, and was never used by plaintiff's predecessors in title on the east side of Springdale branch as a mode of egress or ingress to said farm."
The first proposition is not consonant with the facts established, and is not corroborated by any fact proved, except in one particular. While it is true no access from the land east of Springdale branch to the county road in its new location is obtainable without trespassing upon land owned by defendant west of that stream, if his claim to the land along the old roadway west of the Hawkins line is valid, yet, as said, the basis of the claim is unwarranted, and White admits that, but for the claim, plaintiffs can obtain access to the public road without trespassing on land owned by him.
Whether the present or any earlier proprietor of the land lying east of Springdale branch used the old route as a public thoroughfare is not controlling. It was on their land. If necessary, they could use it as an outlet for legitimate purposes. It was available for them whenever their convenience or the profitable enjoyment of the land required such use. If necessary for the full exercise and enjoyment of the rights and privileges of ownership, the rights and privileges cannot be curtailed or destroyed, except in the manner provided by law,...
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