Jarvis v. Town of Grafton.
| Decision Date | 20 March 1898 |
| Citation | 44 W.Va. 453 |
| Court | West Virginia Supreme Court |
| Parties | Jarvis v. Town of Grafton. |
1. Injunction Streets and Alleys Tenant for Life.
A tenant for life has the immediate freehold and therefore the sole right to hold, use, and enjoy, and may sue out an injunction to restrain a town from opening streets and alleys through his premises, against his consent, without first having the same lawfully taken and condemned, and compensation to such person ascertained in the manner prescribed by law.
2. Adverse Possession.
Possession, in order to be adverse, must be (1) hostile or adverse; (2) actual; (3) visible, notorious and exclusive; (4) continuous; (5) under color of title. Heavner v. Morgan, 41 W.Va. 428.
3. Dedication Acceptance-Streets and Alleys.
Recognition of a plan of an addition to a town (dedicated thereto by the owners of the land) by the authorities of such town, by an ordinance adopted and published, naming-the streets and alleys, and opening-and using a part of such streets and alleys, is an acceptance thereof.
Appeal from Circuit Court, Taylor County.
Bill by Ann M. Jarvis against the town of Grafton for an injunction. From a decree for plaintiff, defendant appeals.
Reversed.
W. R. D. Dfnt and B. F. Bailey, for appellant.
W. T. Ice and I. E. Robinson, for appellee.
By deed dated March 31, 1884, Claude S. Jarvis conveyed to his mother, Ann M. Jarvis, certain real estate, as follows: which deed contains the following provision: "And the said Ann M. Jarvis is to have and to hold the same as her own, and at her death the property described herein is to revert to the said Claude S. Jarvis (and, in case of the death of the said Claude S. Jarvis prior to the decease of his mother, the property to be hers); he to have and tohold as his own on the paym ent to each of his sisters, Anna and Lillie, the sum of $500 (five hundred dollars) each, if he outlives his mother," which deed was duly recorded in t he office of the clerk of the county court of Taylor county, April 21, 1884. Mrs. Jarvis took possession at once, and had the lots inclosed by a fence, all in one in closure, from Wilfred street to Knotts avenue. At a meeting-of the town council held August 22, 1894, the following order was made: "On motion, the mayor was instructed to notify Mrs. Ann M. Jarvis to appear before council Wednesday, September 5, 1894, and show cause, if any she can, why Alphonsus alley should not be opened for public use." And Mrs. Jarvis being accordingly notified, appeared, and filed her answer in writing, claiming that such alley could not be opened until the property was condemned therefor according to law; that no such alley across her grounds had ever been laid out and dedicated to the said town, and therefore no acceptance of such alley was ever made by the proper authorities of said town; either express or implied; that respondent had had the actual, open, notorious, continuous, and adverse possession of the ground claimed by the town for such alley, had had the same inclosed by a fence, had lived on the same, and occupied every part thereof, in good faith, for more than ten years.
On the 3d of September, 1894, Mrs. Jarvis filed her bill in the circuit court of Taylor county, setting up the purchase of the property, consisting of three lots lying contiguous to each other, and that no street or alley was shown on the plat through or across them, or either of them; that none had ever been opened across or between said lots, or either of them; that at the time of the purchase they were situated in a common adjoining said town, were not inclosed or occupied by any one, and no evidence of any street or alley having been laid off between said lots, or across the same, was shown thereon; that immediately after the purchase she took possession, graded and prepared them at large expense for the purpose of building a dwelling house, and inclosed them by building a fence around them on the outside lines, and from that time on had actual, open, notorious, continuous, and adverse possession of all the ground inclosed by said fence, and as soon as the lot of ground was graded and prepared for the purpose a large dwellinghouse was erected on it, and she had continuously resided there ever since its completion; that other valuable buildings had been erected upon said lots, such as stables, out- buildings, etc.; that at the time said lots were purchased they were very rough and steep, with a deep ravine running through them, which rendered them, at the time of the purchase, of but little value; that, since she had owned and occupied them, they had been much improved by filling the ravine, grading and cultivating, and planting fruit and ornamental trees, so that she had made it a beautiful and valuable home, and had had exclusive, ad verse possession for more than ten years, that she was informed and believed that the common council of the town of Grafton claimed that there was located between her said lots, running west from Luzader street to the school house, a certain alley, called "Alphonsus Alley," which the town's council claimed a right to open through her property, which, if successful, would ruin her valuable property, and would be of no convenience or accommodation to the general public, or to a single individual, but would be of irreparable damage to her; that notice had been given her of the town's intention to open said alley (and filed a copy of said notice); and alleged that no such alley was ever laid out and dedicated to the town by the Fettermans, or other person who was the owner of said land and had the right to dedicate the same; that no acceptance of said alley was ever made by the authorities of said town, either express or implied; and prayed that the town be inhibited and restrained from opening said alley until the same had been condemned and established according to law, and for general relief. Upon which bill the judge of the circuit court granted an injunction. On the 4th day of January, 1895, the defendant tendered its written answer, and moved the court to dissolve the injunction and dismiss the bill. Plaintiff excepted to the answer, and moved the court to reject the same, and the court took time to consider of the motion. On the 8th day of January, 1896, the the court overruled the motion to reject the answer and ordered the same filed, to which the plaintiff replied generally.
The defendant's answer admits that it was proceeding to open the alley commonly known and called "Alphonsus Alley," but now called in the ordinances of the town "Halfway Alley;" that many years ago the heirs of Sarah B. Fe4- terman made and laid out an addition to the town of Grafton, numbering the lots, and numbering-the alleys and streets; that the alley in controversy was named by said Fetterman heirs "Alphonsus Alley," and as such was dedicated to the said town; that said Fetterman heirs sold and conveyed all the lots lying along either side of said alley, and every deed, without a single exception, called for said alley either as the north or south boundary thereof, showing conclusively a dedication of the same to the defendant; that said alley was accepted by the defendant by printing the name of the same in the ordinances of said town, first by the name of "Alphonsus Alley," as defendant is informed and believes, but, the records of said town having been lost or destroyed, in renaming the said alley it was called "Halfway Alley," and is so now named and called in the printed ordinances of said town; that little or no work had been done by respondent on said alley, for the reason that it was in an unimproved portion of the town, the land lying out to the common; that some time in the year 1885 the complainant was permitted to build a temporary fence across the end of said alley, in order to save the expense of building a fence across her three said lots; that at the time of building her said fence, plaintiff made no claim to said alley; that in the last several years she had been several times notified to remove said fence, and had invariably requested that she be allowed time until her garden should mature, or some such subterfuge, never once claiming that she owned said alley, or that she was holding adversely to defendant, but at all times admitting that she was holding by permission of it, and that she would remove her fence; that some time in the early spring of 1894, she was again notified to remove, and again agreed to remove, her fence, but, not so doing, she was notified to appear before the council of said town, and show cause, if any she could, why said alley should not be opened, to which notice she made appearance, and, upon consideration of said notice and evidence, the said council ordered the alley to be opened, but plaintiff, not desiring to act fairly and honestly, and conceiving the statute of limitations had given title to said alley, has most unconscientiously appealed to a court of equity, and sued out this most unjust injunction. Res- pondent denied that plaintiff had any claim or color of title to the land upon which the alley is situated, or that she had adverse possession for the period of ten years, but, on the contrary, the occupancy of said land has been by...
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