MacCorkle v. City of Charleston
| Decision Date | 10 April 1928 |
| Docket Number | 6049. |
| Parties | MacCORKLE v. CITY OF CHARLESTON et al. |
| Court | West Virginia Supreme Court |
Submitted March 13, 1928.
Syllabus by the Court.
The dedication of an alley to public use cannot be inferred from the filing of a map defining the alley and the conveyance of lots with relation thereto, when the conveyance specifies that the alley is for the use of the abutting lot owners.
The mere user by the public of a private alley in common with the owners of the alley does not show a dedication thereof to public use, or vest any right in the public to the way.
A conveyance of land bounded on a way, either public or private, carries with it by inference of law the fee to the center of the way as part of the grant, unless the inference is excluded by express declaration or something equivalent thereto.
Such private alley is not forfeited to the state because not charged integrally on the land books. Assessment of and payment of taxes on the abutting lots prevents a forfeiture of the alley.
Point 3 of the syllabus of Jackson v. Railroad Co., 63 W.Va. 18, 59 S.E. 749, 129 Am. St. Rep. 955, on equity jurisdiction, applied.
Appeal from Circuit Court, Kanawha County.
Suit by William A. MacCorkle against the City of Charleston and others for an injunction. From a decree dissolving a temporary injunction and dismissing his bill, plaintiff appeals. Reversed, and injunction perpetuated.
Poffenbarger Blue & Dayton and MacCorkle, Clark & MacCorkle, all of Charleston, for appellant.
Arthur G. Stone, Philip H. Hill, and P. H. Murphy, all of Charleston, for appellees.
The plaintiff herein appeals from a decree dissolving a temporary injunction restraining the city from paving an alley abutting on his property and dismissing the bill.
By a deed dated 1884, the heirs of Wm. Goshorn, Sr., partitioned their property on the corner of State and Summers streets in the city of Charleston into seven lots, with the alley in question running from State street between the lots to the opposite property line. A map was recorded with the deed on which the alley is designated "Alley 12 ft. wide." Plaintiff is now the record owner of lots Nos. 1 and 7.
The city takes the position that the alley is public because of dedication and acceptance, prescription, and section 3, c 43, Code. It also contests the right of plaintiff to maintain this suit on the ground of nonassessment and nonpayment of taxes on the alley, and lack of equity.
In support of its position, the city introduced evidence showing that, when State street was sewered and paved, the cost of the portion abutting on the alley was not assessed against any property owner, but was paid for by the city; that a sewer put in the alley by an owner of one of the lots abutting thereon was graded by the city engineer; that the alley as such has not been entered for taxation; that lot No. 7 has been off the land books for more than 20 years that a small amount of work was done on the alley by the city about 15 years ago, such as draining and filling mud holes; and that a telephone pole stood in the alley for a number of years. Five witnesses testified that the alley has been open and used generally by the public for many years.
The plaintiff, W. F. Goshorn, and H. D. Goshorn, who were parties to the partition deed, testified that the alley is private, and that it was made for the sole use and convenience of the lot owners and their tenants, and has not since been used otherwise to their knowledge. The plaintiff introduced in evidence a letter written by him in 1922, to an adjoining proprietor giving him permission to use the alley. He further testified that, for many years following the partition, gates and bars were maintained across the alley, which finally rotted down about 8 or 10 years ago; that about 20 years ago he and a tenant utilized the alley for a time as gardens; that his property did not abut on State street and he had no notice of its paving; and that he had never seen any work done by the city on the alley. A tenant who had occupied one of plaintiff's lots for 23 years testified that gates were across the alley when she first moved there, but had disappeared sometime afterwards, since when people generally had used the alley.
In an unbroken line of decisions this court has held that an owner of land may dedicate it to public use by acts and declarations without an express grant. But in such case the conduct relied upon to show the animus dedicandi must be deliberate and unmistakable, active rather than passive, and "the result of intention rather than inattention." Pierpoint v. Town of Harrisville, 9 W.Va. 215; Miller v. Town of Aracoma, 30 W.Va. 606, 5 S.E. 148; Miller v. City of Bluefield, 87 W.Va. 217, 104 S.E. 547. In fact, the acts relied upon must be inconsistent with any purpose but dedication. Morlang v. City of Parkersburg, 84 W.Va. 509, 100 S.E. 394, 7 A. L. R. 717. As stated in De Grilleau v. Frawley, 48 La. Ann. 184, 19 So. 151, the proof of dedication should be so clear "as to exclude any other reasonable hypothesis." The burden of furnishing such proof is on the party who alleges the dedication. Mason City Co. v. Town of Mason, 23 W.Va. 211; 18 C.J. p. 93, § 101. The evidence relied on by the defendant does not meet these rigid requirements. The contention of dedication is based on the facts that the Goshorn heirs caused their property to be surveyed and plotted, recorded the plat, made reference to the plat in conveyances inter sese, and did not deny the public the use of the alley. The defendant relies upon Riddle v. Town of Charlestown, 43 W.Va. 796, 28 S.E. 831; Cook v. Totten, 49 W.Va. 177, 38 S.E. 491, 87 Am. St. Rep. 792; Edwards v. Land Co., 56 W.Va. 43, 48 S.E. 754; and City of Elkins v. Donohoe, 74 W.Va. 335, 81 S.E. 1130. In each of those cases the landowner caused his property to be surveyed and plotted into lots, etc., for the purpose of sale, and sold lots pursuant thereto. The situation in this case is quite different. Here the land was surveyed and plotted, not for sale, but for partition and occupancy. The defendant contends that this partition differs in no essential particular in that respect from a sale of lands. A discussion of this point is beside the mark, as its decision does not depend on inferences of intent or presumptions of law based upon the situation of the parties. The partition deed definitely settles the purpose of laying off the alley. It states:
"Each of said grantees is to have full use and enjoyment of the said alleys, so far as the same are adjacent to their respective lots, and full and free right of ingress and egress through and over said alleys to and from the public streets."
This is an express dedication to private use, and excludes the presumption of dedication to public use, which might otherwise arise from the recordation of the plat. This case parallels the cases of R. R. Co. v. City of Cleveland, 1 Ohio Dec. 1; City of Baltimore v. White and Shipley, 62 Md. 362; Bowers v. Mfg. Co., 4 Cush. (58 Mass.) 332, 339; Fischer v. Laack, 76 Wis. 313, 45 N.W. 104; Hall v. McCaughey, 51 Pa. 43; Ins. Co. v. Littlefield, 67 Ill. 368; Talbott v. R. R. Co., 31 Grat. (Va.) 685. In those cases (several of which involve partition deeds) alleys or passageways were set apart expressly for the use of abutting lot owners, and it was held that there was no dedication to public use. See, also, 9 A. & E. Ency. Law, p. 56; 18 C.J. p. 66, § 55.
Witnesses who stated that the public used the alley admitted that they did not know personally the people who they saw using it, and, with the exception of some school children, did not know but what such people were hucksters, icemen, or others having business with the owners of the lots or their tenants. It is not necessary, however, to weigh this proof carefully, as it is settled law that, when once the private character of a way is established, mere use by the community is held to be permissive and in subordination to use by the owner. "Where a way is laid out and used as a private way, the mere fact that the public also makes use of it without objection from the owner will not make it a public way." Elliott, Roads and Streets (4th Ed.) § 5. See, also, § 29, and, in addition to the many cases cited by this author, see Washburn, Easements and Servitudes (4th Ed.) p. 213, § 13; 18 C.J. p. 105, § 1201; Brinck v. Collier, 56 Mo. 160; White v. Bradley, 66 Me. 254, 258, 259; City of Chicago v. Borden, 190 Ill. 430, 444, 445, 60 N.E. 915; Banking Co. v. City of Atlanta, 118 Ga. 486, 489, 490, 45 S.E. 256; Parrott v. Stewart, 65 Or. 254, 261, 132 P. 523; Hall v. McLeod, 2 Metc. (59 Ky.) 98, 101, 102, 74 Am. Dec. 400; Davis v. Ramsey, 50 N.C. 236, 241; Speir v. Town of New Utrecht, 121 N.Y. 420, 430, 431, 24 N.E. 692; Shellhouse v. State, 110 Ind. 509, 513, 11 N.E. 484; Irwin v. Dixion, 9 How. 10, 32, 33, 13 L.Ed. 25. These cases proceed on the theory that, when a private way is open, it is open either for the convenience, or by the permission of, the owner; that the public, finding the way open, uses it without any claim of right but merely because it is open; that the owner indulges the public's use rather than be captious; that such use is in common with his own; and that he is not to be penalized for accommodating the public. Therefore, they say, the vital elements of abandonment by the owner, and adverse user by the public, respectively, upon which an implied dedication or prescription must rest, are lacking, and "no length of time, during which property is so used, can deprive an owner of his title." Irwin v. Dixion, supra, p. 33.
The contention is also made that because the public has had access to the alley and has not been...
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