Huddleston v. Deans
| Decision Date | 11 April 1942 |
| Docket Number | 9208. |
| Parties | HUDDLESTON et al. v. DEANS et al. |
| Court | West Virginia Supreme Court |
C. R. Summerfield, of Fayetteville, for appellants.
Mahan Bacon & White, of Fayetteville, for appellees.
A. L and Sallie Huddleston instituted this suit in the Circuit Court of Fayette County as property owners in Block No. 10 in the City of Montgomery against other property owners in the same block, to require defendants to remove certain designated obstructions from an alleged alley, and to perpetually enjoin the further obstruction thereof. This appeal is prosecuted to an order of the Circuit Court denying the relief prayed for and dismissing plaintiff's bill after submission of the cause on bill, answer and depositions.
The land here involved, as well as a greater part of the land upon which the City of Montgomery is now situated, was owned prior to 1879 by James Montgomery. In that year, at the instance of James Montgomery or his heirs, the same was laid out in about fifty blocks and several hundred lots by I. J Settle, a civil engineer, and called Coal Valley City. On the Settle map, streets and alleys were provided so that each lot fronted on a street, with a twelve-foot alley extending through the block and in the rear of each lot. The Settle map was revised in the year 1919 by H. A. Gentry, and a copy of the revision recorded in the office of the County Clerk of Fayette County in the year 1922. The community did not expand to any great extent until about 1912, but since that time the growth thereof has been such that the original Montgomery land is now practically occupied by residences and business buildings, the population of the municipality being now about three thousand.
Block No. 10 was designated as such in the Settle and Gentry maps and is bounded, as originally, by Fourth Avenue on the North, Adams Street on the East, Third Avenue on the South, and Madison Street on the West. A map of Bloc k No. 10 was prepared in 1937 by E. B. Roeser, showing the same as originally laid out and the extent of the present encroachments on that portion of the block designated as the alley. A copy of the Roeser map is filed herewith, from which it will be seen that the alley runs from Madison Street to Adams Street through the center of the block, a distance of some four hundred feet. This alley at the present time is open only at the Adams Street end, for a distance of about one hundred feet by E. P. Champe for his own purposes. The remainder thereof has never been opened or used as an alley, and photographic exhibits show the alley to be entirely closed on the Madison Street end.
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TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE Referring again to the Roeser map, Lot 4 was acquired by Sallie Huddleston in 1919 and Lot 2 by A. L. Huddleston in 1932; defendants own Lots Nos. 1, 11 and 12, and 13 and 14. Beginning with the Deans' Lot No. 1, it will be observed that the alley is obstructed by the following: three or four feet of porch on a residence constructed about 1895 by J. W. Montgomery and a stone wall built by Deans about 1917; in the rear of Lots Nos. 11 and 12, part of a building constructed about 1912 and a garage and concrete driveway placed there about ten years prior to the institution of the suit; a fruit tree, gardens, vines and shrubbery back of Lots Nos. 2, 3 and 4, the fruit tree being from twenty-five to thirty years old; a summer kitchen, hedge, lawn and shrubbery placed at the rear of the Claypool Lots Nos. 5 and 6 about 1911; and the servants' quarters and part of the residence of Annie F. Champe so contructed in 1882. The relief herein sought, if granted, would open the alley from the eastern property line of Lots Nos. 4 and 14 through to Madison Street.
The deed by which defendant Dalporto and wife acquired title to Lots Nos. 11 and 12 in 1932, refers to the lot numbers and block "as laid down on a map of the City of Montgomery *** as prepared by the late I. J. Settle, of record in the office of the Clerk of the County Court of Fayette County", and the metes and bounds therein run to and along an alley. The deed to Deans' predecessor in title conveyed "lot number 1, in Block 10, as per Settle's map of the town of Montgomery", and the metes and bounds in the deed also run to "an alley". Defendant Sarah Dent's deed to Lots 13 and 14 and part of Lot 12, refers to Third Avenue and Madison Street and the lot numbers, with metes and bounds running to and with an alley, although there is no reference to the Settle map, W. L. Montgomery's title to Lot 3, Block 10 came to him by inheritance from his grandfather, J. W. Montgomery. There is no assertion that defendants have any record title to the portion of Block No. 10 laid off as the alley. However, reference is here made to the deeds by which defendants or their predecessors acquired title to indicate the recognition therein of the existence of the original map and the streets and alleys as laid out thereby.
Before discussing the merits of this litigation, we refer to certain procedural defects as to parties, abatement and revival and service of process. Summons commencing the suit was issued for D. C. Deans, Arnelio Dalporto, Letizia Dalporto, Sarah Dent and William Montgomery, the three defendants first named therein being personally served, as shown by the return. Sarah Dent died before the institution of this suit, but her heirs were not made parties thereto and the summons was served on her daughter.
William L. Montgomery was not personally served with process, the return stating, "he being out of the State of West Virginia, but summons left at his place of residence." Arnelio Dalporto became insane during its pendency, and it is attempted by stipulation to waive scire facias and revival. There is an assertion in brief of appellees that D. C. Deans died some time during the pendency thereof. This condition of the record prevents us from passing on the rights of persons who were not properly before the trial court at the time of the entry of the final decree. We find no defective procedure in the trial court as to Letizia Dalporto and therefore hold that this is sufficient for the purpose of determining a general principle which will also apply to other persons when they or their rights are properly before the trial court, in accordance with the statutes of this State dealing with service of process, abatement and revival, and descent of title to land.
It appears that the City of Montgomery is a growing municipality and that the land within its territorial limits was laid out by the owner thereof into lots, streets and alleys. From the exhibits appearing in this record, we observe that Block No. 10 is occupied by residences and other structures. All the defendants, except William L. Montgomery, by their joint answer assert that the alley has been abandoned; that they have title to the portions thereof occupied by them by adverse possession, and that laches of plaintiffs and their predecessors in title estops the plaintiffs from showing their right.
The plaintiffs rely on the making of the Settle map; a long continued use of said map in describing parcels of land in Block 10 and the reference to the map and alley appearing in various deeds of conveyance.
There is a clear showing of an offer to dedicate the streets and alleys depicted on the Settle map. This offer, as well as the long continued acquiescence by the grantees of the dedicator, gives rise to an estoppel in favor of the lot owners, which prevents a revocation of that offer and the right to use the streets and alleys shown on the plat can not be withheld from them by other land owners who derive their title from the dedicator. Deitz v. Johnson, 121 W.Va. 711, 6 S.E.2d 231. The municipality has not formally accepted the dedication of the streets and alleys. This case does not involve the responsibility of the city to open and keep the alley in repair, the controversy being between the alienees of the dedicator.
The Settle map was made at the instance of the owner or owners of the land; on it lots, streets, and alleys are delineated, and although the map was not recorded until the year 1922, lots in Block 10 were sold with reference thereto and without reservation. Under such circumstances the purchasers of lots in Block 10 are entitled to the immediate use of all the streets and alleys shown thereon which are necessary for the complete enjoyment of their property. Cook v. Totten, 49 W.Va. 177, 38 S.E. 491, 87 Am.St.Rep. 792; Edwards v. Moundsville Land Co., 56 W.Va. 43, 48 S.E. 754; Griffin v. Richardson, 83 W.Va. 442, 98 S.E. 523; Rudolph v. Glendale Improvement Co., 103 W.Va. 81, 137 S.E. 349; Deitz v. Johnson, supra. The rights thus acquired by the lot owners are in a measure limited by necessity. Mason v. Wall, 96 W.Va. 461, 123 S.E. 457. The City of Montgomery is a populous municipality; many residences and other structures having been erected therein. In other words, it is an actual town. The rule invoked in the case of Mason v. Wall, supra, is, therefore, inapplicable.
Have the plaintiffs lost their right to the use of the alley by abandonment, by adverse possession of defendants, or by laches and estoppel?
The acts of the plaintiffs or their predecessors in title, even if showing abandonment, would not extinguish that right as to other lot owners. However, the acts of the abutting lot owners seem to show a permissive use of the alley rather than any intent to abandon. The alley seems to have been occupied by persons who owned land on each side thereof, in which condition it remained until the institution of this suit. Even if the plaintiffs have the right and power to abandon the alley, which we believe th...
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