Hicks v. City Of Bluefield.

• Decision Date: 04 May 1920
• Citation: 86 W.Va. 367
• Court: West Virginia Supreme Court
• Parties: A. W. Hicks v. City of Bluefield.

86 W.Va. 367

A. W. Hicks

v.City of Bluefield.

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1920.

Decided May 4, 1920.

1. Forcible Entry and Detainer Court May Direct a Verdict for Plaintiff on the Issue of Three Years' Possession.

The issue as to whether the remedy by unlawful entry and detainer is barred by three years possession, is one for jury determination; but, as to it, the court may direct a verdict for the plaintiff if the evidence of such possession is too slight to sustain a verdict based upon it. (p. 369).

2. Same The Remedy is Open to an Owner of Realty Wrongfully Claimed by City as Street.

Unlawful entry and detainer may be invoked by an owner of real estate wrongfully claimed by a city as and for a street, and actually occupied and used by the public under the claim, authority and protection of the city. (p. 370.)

3. Dedication To Establish Implied Dedication the Facts Must Clearly Show Owner's Intent,

To make out a case of dedication of private property to public use by implication, the facts relied upon to establish it must be of such character as clearly show the owner intended such dedication and they must be clearly and fully proved, (p. 372).

4. Same Acceptance with Owner's Knowledge May Aid Weak Evidence; on Circumstantial Evidence Without Proof of Dedication? Verdict May be< Directed for Plaintiff. In such case, an acceptance of the property by the public authorities, as having been dedicated, with knowledge of the owner, aids and strengthens weak evidence of dedication; but if, in an action against a city to recover property so claimed, occupied and withheld, the evidence of dedication is circumstantial and uncertain and there is no proof of an acceptance, before revocation of the supposed dedication, the trial court may properly direct a verdict for the plaintiff, (p. 372.)

(Lynch, Judge, absent).

Error to Circuit Court, Mercer County.

Action of forcible entry and detainer by A. W. Hicks against the City of Bluefield. Judgment for plaintiff, and defendant brings error.

Affirmed.

Jno. R. Dillard and L. J. Holland, for plaintiff in error.

C. R. McNutt and Jno. R. Pendleton, for defendant in error.

PoFFENBARGEU, JuDGE:

The plaintiff in this action of forcible and unlawful entry and detainer, in whose favor a verdict was found by direction of the court, has fully proven his title in fee, to the strip of land, in which the defendant claims a public easement. This strip, only 30 feet wide and about 180 feet long, runs from one street, to another and the whole thereof is claimed by the city as a street. The issues relate solely to the remedy invoked and dedication and acceptance of the easement.

Denial of the right to invoke the remedy is predicated, not upon inappropriateness thereof in a controversy between an owner of land and a municipal corporation claiming it as a highway or street, but upon the ground that the duration of the defendant's possession of the land in controversy precludes unlawful detainer and makes ejectment the proper remedy, by virtue of sees. 1 and 3 of ch. 89, making three years possession a bar to the former action. As to the duration of the city's alleged possession of the property, the evidence is conflicting. Though practically all of the strip has been open and used to some extent by the general public, the evidence adduced by the plaintiff is to the effect that such use was merely permissive and of the kind usually made of vacant or unoccupied lots. The witnesses deny that the city ever exercised any authority over it, or claimed any right in it, so far as they know, until after the plaintiff fenced it up and excluded the public from the, use thereof. A vendor of the plaintiff says he put a hitching pole or rack on one end of it, while he conducted a mercantile business in a building on an adjoining lot and so invited his customers and others to use it. On the other hand, the city's street commissioner swears he, at one time, graded down the upper side of it and maintained a crossing at one end of it, by means of stepping stones at first, and then by boards and, still later, by the use of cinders. This crossing was maintained along the side of Mercer Street and on the line between it and the end of the strip of land in controversy. He also claims to have done a little filling on the other end of the strip, at its junction with Peck Street, about five or six years before the date on which he testified, and that the debris from the strip has been hauled away by the trash-wagons of the city. Wagons and other vehicles have not only been parked or stored upon it but have used it much as they have used other streets. Testifying in rebuttal, a former owner denies that any grading was ever done by the city on the property and says he himself put in the stepping stones along Mercer Street and that, on one occasion, a city representative came there, with the, intention of doing some grading, but left when he protested against it and denied the city's right in the property. Other witnesses so testifying, say the strip was never used as a public street and that, while vehicles did pass over it, they did it in the same way in which they frequently passed over other vacant lots. There is no proof of any permanent pavement or improvement of the strip, notwithstanding its location in an improved section of the city. The plaintiff obtained title to the property by a deed dated, January 26, 1918, and some time in May of the same year, to the best of his recollection, he built a post and wire fence at each end of the lot and the next day after this was done, the city's officers and agents tore down the fence. In this state of the evidence, it cannot be said, as matter of law, that the city's possession extended over a period of three years, nor that it had any actual possession at all, before it entered upon the land and tore down the fences. The actuality of a defendant's possession and the duration thereof are questions for jury determination, when there is conflict in the evidence. Code, ch. 9, sec. 3. But, of course, it is governed by the same rules as other issues of fact.

A more, serious question, however, is whether or not the remedy is appropriate, whether either unlawful detainer or ejectment lies between the owner of porperty and a municipal corporation claiming it as a public street or highway. Tinder our law, unlawful entry and detainer is substantially the same, with few exceptions, as common law ejectment which does not necessarily go to the question of title. Camden v. West Branch Lumber Co., 59 W. Va. 148, 158. The cases relating to the right of a corporation to maintain ejectment for possession of a street or highway against any person withholding it are collected in a note to Canton Co. v. Baltimore, 11 L. R. A. (N. S.,) 129. In Maryland, Kentucky, Georgia, Michigan, New York and Wisconsin, ejectment has been held not to be an appropriate or available remedy in such cases, unless the corporation owns the fee in the land. Canton Co. v. Baltimore, cited; Covington v. Freking, 8 Bush. 12.1; Savannah v. Steam Boat Co.. R. M. Charlt. (Ga.) 342; Grand Rapids v. Whittlesey, 33 Mich. 109; Southampton v. Beits, 163 N. Y. 454; Northern Tump. Road Co. v. Smith, 15 Barb. 355; Racine v. Crotscnberg, 61 Wis. 481. These decisions are based upon the theory that the city or corporation has only an easement in the land and the legal proposition that ejectment does not lie for recovery of an incorporeal right. On the other hand, there are other numerous cases in which, in view of the exclusiveness of the right of the city and its complete dominion over its streets or public grounds, it has been held that ejectment may be maintained against any person occupying any of them and withholding possession thereof. San Francisco v. Grote, 120 Cal. 59; Visalia v. Jacobs, 65 Cal. 434; Southern P. Co. v. Burr, 86 Cal. 483; Eureka v. Armstrong, 83 Cal. 623; Eureka v. Fay, 107 Cal. 166; Napa v. Howland, 87 Cal. 84; Chicago v. Wright, 69 ?. 318; Lee v. Harris, 206 ?. 428; Dummer v. Den, 20 N. J. L. 8(5; Hoboken etc. Co. v. Hoboken, 36 N. J. L. 540; Price v. PlainfieU, 40 N. J. L. 60«; Weger v. Delran Twp., 61 N. J. L. 224; Ocean Grove etc. Ass'n. v. Berthall, 63 N. J. L. 312; Hohokus Twp. v. Erie R. Co., 65 N. J. L. 353; Asbury Park v. Eawxhurst, 67 N. J. L. 582.

Jnappropriateness of unlawful detainer and ejectment in cases in which the owner of the fee seeks relief against the exercise of a mere easement giving the defendant nothing more than a right to use the property in common with the owner, such as a private way over land, is manifest. The owner has not been deprived of possession. He has use of the land for all purposes consistent with the enjoyment of the easement and not obstructive thereof. Such right of possession as the defendant or owner of the easement.has is not exclusive in any sense. But, in the case of a public street or highway on or across the land, the possession of the corporation under whose right or claim the general public use it, is practically exclusive. It leaves in the owner of the fee no right of individual possession or use. Therefore, the courts generally affirm the right of the fee owner to sue in ejectment for recovery of land wrongfully withheld from him by a municipal corporation, for street purposes. Le Blond v. Peshtigo, 140 Wis., 306; 25 L. R. A. N. S. 511; Lowe v. Kankanua, 70 Wis., 306; Mahon v. San Rafael Tump. Road Co.. 49 Cal. 269; Tidier v. Detroit, 97 Mich. 597; Armstrong v. St. Louis, 69 Mo. 309; McCarthy v. Clark Co., 101 Mo. 179; Strong v. Brooklyn, 68 1ST. Y. 1. Right to this remedy under such circumstances has been denied in two cases at least. Cowenhover v. Brooklyn, 38 Barb. (N. Y.) 9; Lynch v. Rutland, 66 Vt., 570. They say the public easement is not incompatible with the owner's title or possession, for, owning the fee, he is in possession subject to the public right. In other words, the public use neither disseizes...