Harris v. Commonwealth

• Decision Date: 13 March 1871
• Citation: 61 Va. 833
• Parties: HARRIS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

61 Va. 833

HARRIS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 13, 1871

Joynes, J., absent, sick.

1. In order to constitute a dedication of property to the public there must be an intention to appropriate the land for the use and benefit of the public. The acts and declarations of the owner, indicating such an intention, must be unmistakable in their purpose, and decisive in their character, to have that effect.

2. This intent may be presumed from circumstances connected with a long and uninterrupted user by the public. And this presumption may be rebutted by circumstances showing that an appropriation of the property to the use of the public was not intended.

3. In this State there may be a valid acceptance of an easement in a town, without any distinct act of recognition by the corporate authorities of such town. The mere user, however by the public, of the locus in quo, will not of itself constitute an acceptance, without regard to the character of the use, and the circumstances and length of time under which it was claimed and enjoyed.

4. Where property in a town is set apart for public use, and is enjoyed as such, and private and public rights are acquired with reference to it and to its enjoyment, the law presumes an acceptance on the part of the public as will operate an estoppel in pais, and preclude the owner from revoking the dedication.

5. Where no public or private interests have been acquired upon the faith of the dedication, the mere user, by the public, of the supposed street or alley, although long continued, should be regarded as a mere license, revocable at the pleasure of the owner; unless there be evidence of an express dedication or unless, in connection with such long-continued user, the way has been, by the proper town authority, recognized as a street, so as to give notice that a claim to it as an easement was asserted.

6. A map of a city, though made by a former city surveyor, and found in the office of the register of the city, in a book labelled " plans and charts," not appearing to have been made by the authority of the city government, or adopted by it, is not competent evidence for the Commonwealth, in a prosecution for obstructing what is claimed to be a street of the city.

This was an indictment in the court of Hustings of Norfolk, at its February term for 1870, against Charles Harris, for obstructing Plume street, in said city. The case came on for trial in April, 1870, when the jury found the defendant guilty.

The defendant took several exceptions to rulings of the court. The first was to the admission of a lithographic map purporting to be a map of the borough of Norfolk, made by John Ridley, surveyor of the borough. This map was proved to have been found in the office of the register of the said city, in a book labelled " plans and charts," by the register incumbent when he took charge of the office; and that Ridley was surveyor of the borough in 1834 and 1835. The defendant objected to its introduction, because--1st. It was not a public document; 2d. That it did not appear on its face to be an official map; and, 3d. That its accuracy as a map of the city of Norfolk had not been established. But the court overruled the objection, and admitted the map as evidence.

After all the evidence had been introduced, the defendant moved the court to give several instructions; one of which is as follows: That if the jury believe, from the evidence, that the land upon which the alleged obstructions exist, was not used continuously and uninterruptedly, for any considerable period of time, they must find the defendant not guilty, unless they also believe, from the evidence, that the land was expressly dedicated to the public use, as a street, by some one of its owners, and accepted by competent authority as a public street, or unless it was condemned as a public street by due course of law.

The court refused to give any of the instructions asked for by the defendant, and instructed the jury that--If they believe, from the evidence, that the present owner of the land, upon which the present obstructions exist, or some one through whom he claims, or some one in whom the title in fee at the time resided, has dedicated the said land to the use of the public as a street, and that such dedication had been followed by acceptance on the part of the public, their verdict must be for the Commonwealth; and such dedication and acceptance may be presumed from facts and circumstances proved, clearly indicating an intention on the part of the proprietors to surrender, and on the part of the public to adopt, the premises as a street; and such acceptance on the part of the public need not necessarily be shewn to have been by or through the acts of the municipal authorities. To the refusal to give the instructions asked, and the giving the said instruction, the defendant excepted. This exception contained a statement of all the facts proved on the trial.

After the verdict, the defendant moved the court for a new trial, on the ground that the court erred in refusing the instructions asked, and in giving the instruction; and also because the verdict was contrary to the evidence. But the court overruled the motion; and the defendant excepted, referring to the facts stated in the previous exception.

It appeared that the title to the ground on which the obstruction was placed had been in the plaintiff and the persons under whom he claimed for many years; and that an official map of the borough of Norfolk, made in 1802, by the then surveyor of the borough, and accepted and made official by the court of the corporation, was the only official map of the borough made by the order of the corporation; and that no such street as that set out in the indictment was designated on said map. That no such street was designated on the map made by John Ridley, by order of the corporation, but not accepted by the court. But the Commonwealth proved, that for several years prior to 1831, the said land, on which the alleged obstructions exist, with other adjoining lands, was unenclosed and without any buildings thereon; that in the year 1835 the land was unenclosed, and such was the case in 1862; and that, whenever the said land was unenclosed, the persons living in the neighborhood and others, and from as far back as 1824, had made use of the said land as a passage way for persons, horses and vehicles; that a large number of citizens, including older citizens not now living, believed the said land was a street; that, in 1849, the city of Norfolk directed all its streets to be labelled with their respective names, and that, in 1849 and 1850, a person appointed to superintend the said labelling, without any special instructions as to the said land, or as to Plume street, placed upon the houses on the adjoining lots on each side of said land, labels bearing the name of Plume street; which signs or labels remained until or about the time of the erection of the alleged obstructions; that said superintendent had no guide or instruction besides general report, except the map of Ridley, referred to in the first exception; but that the work was approved and paid for by the councils; that the report of the superintendent did not indicate the streets or the points at which the labels had been affixed; and that the defendant had built houses on and had enclosed the said land in 1851 and 1852, and had enclosed the said land on the line of Addington's lane in 1870.

On the other hand, the defendant proved that the land was enclosed in the years 1831 and 1832, by the then owner; and that it was enclosed by a tenant thereof, and kept enclosed by him from 1840 to 1850; and that the defendant had kept it enclosed until the year 1862, when he left the city; and that the defendant, and the other owners of the said land, had been continuously assessed with taxes thereon, from the year 1819 till, and inclusive of, the present year, and had paid the same.

The court rendered a judgment on the verdict, that the defendant Charles Harris, do proceed forthwith, at his own proper cost, to remove the nuisance complained of in the indictment, to wit: two brick houses and divers large pieces of timber and other material put and placed, and caused to be put and placed, in and upon...