Fugate v. Carter
| Decision Date | 20 September 1928 |
| Citation | 151 Va. 108 |
| Parties | E. D. FUGATE v. J. K. CARTER. |
| Court | Virginia Supreme Court |
1. STREETS AND HIGHWAYS — Maps and Plats — Land Laid off into Lots, Streets and Alleys and Map Recorded — Sales with Reference to Map. — When lands are laid off into lots, streets and alleys and a map or plat thereof is made and recorded, all lots sold and conveyed by reference thereto, without reservation, carry with them, as appurtenant thereto, the right to the use of the easement in such streets and alleys necessary to the enjoyment and value of the lots.
2. STREETS AND HIGHWAYS — Obstructions — Garage Built in Street — Convenience — Necessity — Public and Private Nuisance — Case at Bar. — Where defendant built a garage in a public street and offered no explanation or excuse, except that it was convenieut to build it there, of necessity, the garage is both a public and private niusance — public in that it unreasonably obstructs traffic in a public street, and private because it directly diminishes the value of complainant's lots on the opposite side of the street, in that it impedes free access to them.
3. STREETS AND HIGHWAYS — Obstructions — Garage Built in Street — Right of Landowner Abutting on Street to Bring Bill for Mandatory Injunction — Special or Peculiar Damage — Case at Bar. — The mere fact that defendant built a garage in a public street, which of itself was a public nuisance, gives to the complainant, a landowner, whose lots abutted on the street immediately opposite to the garage, no right to maintain a bill for mandatory injunction. As a prerequisite to the maintenance of complainant's suit it was necessary to show that he had suffered, or will suffer, therefrom some special or peculiar damage, as distinguished from that inflicted upon the general public.
4. STREETS AND HIGHWAYS — Obstructions — Public Nuisance — Right of Individual to Maintain Bill to Enjoin Such Nuisance — Special Damage. — The obstruction of a public highway is a public nuisance, and the trend of authority is that an individual cannot maintain a bill to enjoin such nuisance unless he can show that he has suffered, or will suffer therefrom, special and peculiar injury or damage to himself, as distinguished from injury or damage to the general public. Moreover, such special and peculiar injury or damage must be direct and not purely consequential, and must be different in kind, and not merely in degree, from that sustained by the community at large.
5. STREETS AND HIGHWAYS — Obstructions — Garage in Street — Special Damage to Landowner Abutting on Street — Case at Bar. — A garage in a public street immediately opposite complainant's lot, of necessity inflicts upon complainant special damages not suffered by the public at large, entitling complainant to maintain a bill for a mandatory injunction.
6. MAPS AND PLATS — Streets and Highways — Rights of Lot Owner Purchasing under Recorded Plat — Doctrine Grows out of Estoppel. — A lot owner who purchases under a recorded plat takes as appurtenant to his lot the right to the use of all of the streets and alleys there shown. Quoad the original owner, the recordation of the plat is a dedication of these highways which neither he nor those who claim under him can question. The rights of a lot owner are not based upon covenants, but grow out of the doctrine of estoppel, and are written by equity into each contract of sale.
7. MAPS AND PLATS — Streets and Highways — Rights of Lot Owner Purchasing under Recorded Plat — Whether Vested Interest — Private Property Cannot be Taken for Private Use. — A lot owner who purchases under a recorded plat has no vested interests in the sense in which that term is frequently used in the streets and alleys shown by the plats, for in certain circumstances they may be vacated at the instance of private parties (Code of 1919, sections 5220, 5221), and yet private property cannot be taken for private use either with or without compensation.
8. MAPS AND PLATS — Streets and Highways — Rights of Lot Owner Purchasing under Recorded Plat — Vacating Plat in its Entirety. — Section 5221 of the Code of 1919 provides that a recorded plat showing a subdivision of land into lots, streets and alleys may be vacated in its entirety by the proprietor before sale. Likewise the plat may be vacated at the instance of all of the lot owners.
9. MAPS AND PLATS — Streets and Highways — Rights of Lot Owner Purchasing under Recorded Plat — Partially Vacating Plat. — A recorded plat showing a subdivision of land into lots, streets, alleys, etc., may be partially vacated, if such vacating does not abridge or destroy any of the rights or privileges of other proprietors in said plat, by other lot owners who so desire. It thus appears that unanimous consent is not necessary, and no compensation is provided, for nothing of value is taken.
10. MAPS AND PLATS — Streets and Highways — Rights of Lot Owner Purchasing under Recorded Plat — Vacating and Closing Streets — Doctrine of Estoppel. — If vacating a street shown on a recorded plat subdividing land into streets, alleys, lots, etc., does not abridge or destroy the rights of privileges of other proprietors in said plat, then lot owners, under section 5220 of the Code of 1919, may, through the machinery of the law, or under section 5221 of the Code of 1919, in pais, vacate and close alleys and streets. All that it is necessary to show is that nobody will be hurt. When these conditions obtain, the equitable doctrine of estoppel will not be extended to protect a right that does not exist in a cause already lost.
11. MAPS AND PLATS — Streets and Highways — Rights of Lot Owner Purchasing under Recorded Plat — Rebuttal of Presumption of Interest. — Lot owners are presumed to be interested in all streets and alleys shown on the recorded plat in which their lots are located, but this is a presumption of fact and may be rebutted both under general law and particularly under Code of 1919, sections 5220, 5221. Whenever it is made to appear that a protestant has no interest, equity will stay its hand.
12. MAPS AND PLATS — Streets and Highways — Rights of Lot Owner Purchasing under Recorded Plat — Case at Bar. — Across an alley that probably could not be located on the ground stood a barn of complainant built more than eleven years before the instant suit was brought, and this in a town that had ceased to be. No one had ever claimed to be injured or inconvenienced by this barn. The alley appeared on the recorded plat of the improvement company which sold the lots, but there was no evidence to show that it was ever opened, or accepted by the defunct town. Defendant owned a lot abutting on this alley but did not claim to be injured or inconvenienced by the barn. Defendant built a garage in a public street, and in answer to complainant's suit for a mandatory injunction claimed that owing to the existence of the barn complainant did not come into court with clean hands.
Held: That there was no merit in defendant's contention and that the garage must be removed, and that complainant was not required to remove his barn.
Appeal from a decree of the Corporation Court of the city of Bristol. Decree for defendant. Complainant appeals.
The opinion states the case.
W. S. Cox, for the appellant.
S. H. Bond, for the appellee.
Clinchport is an unincorporated village in Scott county, with from 250 to 300 inhabitants. It was incorporated in 1904, and its charter was repealed in 1915. There is a plat or map of much or all of the land on which it is located, made for the Clinchport Improvement Company, and which was duly recorded under the statute. Va. Code 1919, section 5219.
On the 27th day of January, 1923, one J. N. Cross conveyed to the plaintiff, Fugate, certain lots — "situated in the town of Clinchport, Scott county, State of Virginia, as per plan of said town made by Henry Webb, Esq., and recorded in the county records of said Scott county, and more particularly bounded and described as follows, to-wit:
Three or four months before the institution of this suit, defendant, Carter, built in Fifth street immediately opposite these lots, a garage, and the prayer of the bill is that a mandatory injunction issue, directing its removal.
On this plat of the Clinchport Improvement Company...
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...private rights in the streets bounding his lots on two sides and the fee in this alley between his lots." The facts in Fugate v. Carter, 151 Va. 108, 144 S.E. 483, 484, were that both Fugate, the complainant, and Carter, the defendant, bought lots described by reference to a recorded plat. ......
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Magee v. Omansky, Record No. 3289.
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