Foley v. County Court.
| Decision Date | 07 November 1903 |
| Court | West Virginia Supreme Court |
| Parties | Foley v. County Court. |
1. Streets and Roads Adverse Possession.
Where private property is being taken for public use without compensation, equity has jurisdiction to enjoin the act, though there be controversy as to the title or boundary of the land, and to pass on the right of the parties finally, (p. 28).
2. Streets and Roads Abandonment.
No title by adverse possession can be acquired of land owned by a county and used for a public use for the site of a courthouse and other public buildings, (p. 28).
Appeal from the Circuit Court, Doddridge County.
Action by Tabitha J. Foley against the County Court of Doddridge County. Judgement for defendant and plaintiff appeals.
Affirmed.
J. V. Blair, for appellants.
M. R. Crause, W. S. Stewart and Carter & Dupuy, for appellees.
Nathan Davis was the owner of a tract of land on which stands the town of West Union, the county seat of Doddridge County. Davis by deed datel 15th May, 1815, conveyed to the county court a lot or parcel of one acre out of this tract "for the purpose of erecting theron the necessary public buildings for the use of the said county/' Afterwards he laid out the town into streets and lots, and made a, plat or diagram of the town numbering the lots, showing the lot so conveyed to the county and the relative position of it and the streets and lots as to each other, which plat was recorded i: i the office of the county clerk. After making the deed to the county Davis conveyed to individuals four lots between the Northwestern turnpike, called Pike street, later Main street, and South street, later Court, street, said lots on said plat being numbered 3, 4, 15 and 16, forming a. block, 3 and 14, adjoining said conrt house lot or square on its west side, the conveyance of these lots called for said square in their description or boundary. These four lots by mesne conveyances came to be the property of James A. Foley, lot 3 by deed dated 6th November, 1848, and the others by deed dated 29th December, 1851. Foley died in 1871. His will devised these lots to his widow, Tabitha J. B. Foley, for her life, with power of disposal, and remainder to his children, thus giving her, at least, an estate for her life. Foley took actual possession of these lots at once upon his acquisition of them, and the county took actual possession of its lots at once upon its acquisition by the erection and maintenance of a court house upon it. A strip of ground 21 feet, 4 inches wide on Main street, and 15 feet on South street is in controversy between the county and Folcys, the county claiming that its deed includes it, the Folcys denying this, and claiming its ownership. The question is one of boundary. In 1899 the county by its contractors began the excavation upon its lot of a foundation for a new court house, and deposited a large quantity of earth upon tins disputed strip of ground, which was included in part by an old fence built by Folcys, and occupied by a coal house, trees and shrubbery placed there by them; but the strip was virtually in common from absence of fence in part, and was largely taken up with briers and weeds and wild or neglected growth. Mrs. Foley filed her bill in equity setting up her title to said lots and the acts of the county court in such invasion of said strip, and alleging that said county designed to apply said strip for public purposes without having the same condemned according to law. An injunction was awarded against the county court restraining it from further acts upon said strip of ground. The county court demurred to the bill, but its demurrer was overruled. It then filed an answer setting up its deed from Davis for said court house square, claiming that it covered the strip of land in issue, and gave title to the county, and that it had right to deposit earth upon the strip, and to take possession of it for public use, and admitted that it had taken such possession and was fitting the strip for public use by filling a drain thereon and grading the land, and denying any right in the Foleys to it. Depositions covering hundreds of pages of the printed record were taken, and upon the hearing the court made a decree of absolute dismissal of the bill and dissolution of the injunction, and from this decree Mrs. Foley appealed.
The first question we meet is whether equity has jurisdiction. The defence would justify the decree by the argument that the acts of the county are nothing but mere trespass, doing no irreparable damage, and that remedy adequate could be had by action at law, on principles stated in Becker v. McGraiv, 48 W. Va. 539, and several prior cases. It does seem that the injury is of such character as to be compensated by action at law, so far as the nature of the acts of the county goes; but do the rules given in those cases answer in this cause? This not a more trespass, transient and passing, slightly affecting the freehold, because the bill alleges and the answer admits that the county was taking the strip of land for permanent public use without compensation, forever wresting the land from the plaintiff, if her property, and it is settled that where a town or county is taking property for public use, without compensation, not merely injuring it, there is no legal remedy answering the emergency, and injunction lies. Bougliner v. Clarksburg, 15 W. Va. 394; Yates v. West Grafton, 23 Id. 507; Mason City 8. & M. Co. v. Mason City, 23 Id. 211; Ward v. Ohio R. R. Co., 35 W. Va. 181; Silencer v. Railroad, 23 Id. 400. In the case of takin land for public use without compensation no averment of irreparable injury is necessary, the very "taking" being such. Hill on Injunc. 588; Western v. Owing, 15 Md. 199. Where the right of the plaintiff to the land is clear, and the power taking it has no title to it, the cases say that as the constitution imperatively demands prepayment or security of compensation the injunction will restrain until compensation he paid or secured. But in this case there is controversy as to boundary, and consequently title is in dispute. Whilst injunction lies, it is only temporary until title or boundary shall be settled by recourse to law action, or will equity having jurisdiction under the cases just cited for one purpose, go on to decide upon the question of boundary and title, and finally adjudge the right? The case of Freer v. Davis, 43 S. E. 1G4, 52 W. Va. 1, was a case where titles to land were hostile, and under one of them oil operations were going on for the taking of oil, and jurisdiction for injunction was sustained; but as the matter involved was one of title, it was held that the injunction should be temporary, only until the conflict of title should be settled by action in the law forum, and then dissolved or perpetuated, according to the decision at law. The question will be found discussed in the two opinions in that case. Where there is no question as to title or boundary, or the matter is clear, the equity court gives full decision in case of irreparable damage, as conceded in that case by all the members of the Court; but where title or boundary is fairly in issue, the majority held that under the general rule that equity will not try contested title or boundary, unless there be jurisdiction under some known head, independent of title or boundary, the injunction should be entertained only until legal adjudication, and equity could not decide title or boundary, as the constitution gives a claimant to land trial by jury. This doctrine presents the objection that the arm of equity falls limp as soon as a controversy of boundary or title crops out in the case, and further litigation in another suit is necessitated. But much authority sustains it. In that excellent equity work, Am. & Eng. Dec. in Eq., in vol. 8, p. 524, is an elaborate review of this question sustaining jurisliction for at least temporary injunction. See page 430. I expressed no final opinion in the Freer case upon this question, nor do I in this case. In that case I did not, and in this case do not, find it requisite to do so, because I contended in it, as I do in this case, that when a party chooses the equity court, and submits his whole case to it, he cannot, in case of defeat, raise the question of jurisdiction.
Mrs. Foley chose her court in this case. If a decree made without jurisdiction because the law forum is the proper one were absolutely void, it might be different; then the court, without being asked, might treat it as not binding anybody; but such decree is not void, but merely erroneous upon complaint by appeal. St Lawrence; Co. v. Holt, 51 W. Va. 352. I cite Buskirk v. King, 72 Fed, R, 22, sustaining temporary injunction during contest of title. I cite Erliarl v. Boaro, 113 IT. S. 537, for the language: "It is now a common practice in cases where irremediable mischief is threatened or being clone, going to the destruction of the substance of the estate, such as extracting of ores from a mine or the cutting of timber, or the removal of coal, to issue an injunction, though the title be in litigation." See 8 Am. & Eng. Dec. in Eq. 431. And in Haskell v. Sutton, (44 S. E. 533), 53 W. Va 20G, this Court upheld the jurisdiction for at least temporary injunction. In Camp v. Dixon, 112 Ga. 872, (38 S. E. 78), 8 Am. & Eng. Dec. in Eq. 421, the jurisdiction to fully decree on adverse titles seems to be asserted fully. Where equity once lawfully takes jurisdiction by injunction against trespass working irreparable damage, as extracting oil or taking land for public use without pay, and question of title or boundary arises, I do not say whether or not equity can decree the whole case, without recourse to law. Under Freer v. Davis it cannot do so. I do not say whether or not a party who has objected-to jurisdiction can, in case of decree against him, reverse for that cause. I only say that one who has chosen...
To continue reading
Request your trial