Gaines v. Merryman

• Decision Date: 17 March 1898
• Citation: 29 S.E. 738,95 Va. 660
• Parties: GAINES . v. MERRYMAN.
• Court: Virginia Supreme Court

29 S.E. 738

95 Va. 660

GAINES .

v.MERRYMAN.

Supreme Court of Appeals of Virginia.

March 17, 1898.

Effect of Appeal—Assignment of Cross Errors —Highways—What Constitutes— Dedication—Uses.

1. Code, § 3467, authorizing a supersedeas on appeal to stay proceedings either in whole or in part, does not prevent appellee from assigning cross errors, though appellant assigns error to only one part of a decree, as an appeal when allowed brings the entire record before the court.

2. The action of the county court in dividing a county into road districts does not of itself constitute the roads designated a public road; and, even if the court had in express terms declared a road to be public, this would not makeit so unless the owner of the soil permitted it to be used by the public as such, with knowledge of the claim, and without objection on his part.

3. Act Oct. 31, 1751, and the act passed in the fourth year of the reign of Queen Anne, providing for the laying out of public roads "where the same is not already done, " and "that the highways already laid out * * * shall be cleaned, * * * and at least thirty foot broad, " does not establish as public highways all roads that are shown to have been in use at the date of the passage of the respective statutes.

4. The destruction or loss of public records does not permit the presumption that lands used as a highway for many years had been dedicated to and accepted by the town.

5. The enjoyment of a right of way for many years over the lands of another, with his consent, but not adversely to his rights, does not constitute an easement.

Appeal from circuit court, Henrico county.

Bill by William P. Gaines against W. N. Merrymah and others for an injunction to restrain defendants from using land as a highway, and to decide complainant's rights in the property. From a decree for complainant, but adjudging that defendant Merryman had an easement in the property, complainant appeals. Reversed.

A. R. Courtney and L. L. Lewis, for appellant.

Geo. P. Haw, for appellee.

KEITH, P. William F. Gaines filed his bill in the circuit court of Henrico county, in which he states that he is the owner of a farm in said county about five miles from the city of Richmond, bounded on the north by the Chicahominy swamp. Along the southern front of his farm and those of Elam, Merryman, and Bossieux there is a neighborhood road, which has for years been used, and is now used, by occupants of said land in going to and from the Mechanicsville turnpike, on the east, to Austin avenue, on the west, in order to reach the city of Richmond. In 1891 a road was opened from Bossieux's farm, which is on the extreme west of the lands before mentioned, to the Mechanicsville turnpike, which is shown on the plats tiled with the record as Austin avenue. After Austin avenue was made a public road, certain citizens of Hanover and Henrico counties petitioned the county court of Henrico county to open a road along the dividing line between Gaines and Merryman and the land of Garter on the south, and thence along the line of the farms before mentioned, to the point of intersection with Austin avenue; but this petition of the county court of Henrico rejected, and thereupon Merryman and others announced their purpose to use the roadway as a public road, denying that Gaines had authority to interrupt its use as a public highway. Gaines, in his bill, denies that the roadway across the land had ever been designated or recognized as a public road, or that any person has a right to pass over it without his consent. He avers that at certain seasons of the year the proposed road will be used by great numbers of people in going to and from the city of Rich mond, and that the value of his land will be greatly depreciated and Irremediable injury done him in consequence thereof. He therefore prays that an injunction be awarded restraining W. N. Merryman and others named, and all other persons, from passing across his land, and using the said roadway without his consent, and that his rights in the premises may be ascertained and determined.

This bill was answered by Merryman, and, the other defendants having adopted his answer as their own, evidence was taken, and the circuit court decided by its decree of March 25', 1896, that the road in controversy was not a public highway, and perpetuated the injunction which had been theretofore awarded in that respect, but being of opinion that Merryman, as the owner of the tract adjoining the plaintiff, had a right of way across the plaintiff's land at his will and pleasure, and without the consent of the plaintiff, dissolved the injunction, and dismissed the plaintiff's bill as to Merryman. From this decree, or so much of it as declares that Merryman had right of way over his land, Gaines applied for and obtained an appeal to this court.

Upon the hearing, appellees claimed that, under rule 9, they have a right to bring to its attention, and have this court pass, by way of cross appeal, upon that portion of the decree of the circuit court which decided that the road across the southern boundary of Gaines' land is not a public highway.

The appellant, on the other hand, contends that he only appealed from so much of the decree of the circuit court as declared that the appellee Merryman had a right of way across his land; that the decree dealt with two...