Mason City S. v. Town Of Mason.

• Decision Date: 15 December 1883
• Citation: 23 W.Va. 211
• Court: West Virginia Supreme Court
• Parties: Mason City S. & M. Co. v. Town of Mason.

23 W.Va. 211

Mason City S. & M. Co.

v.Town of Mason.

Supreme Court of Appeals of West Virginia.

Submitted June 29, 1888

Decided December 15, 1883.

An injunction will lie to restrain a town from opening streets and alleys through a person's land against his consent, without first having the same lawfully taken and condemned and compensation to such person ascertained in the manner prescribed by law. (p. 220.)

2. If an incorporated town attempt to open streets and alleys

through the land of any person against his consent, claiming that the land sought to be taken for that purpose has been dedicated to the use of said town, the burden of alleging and proving such dedication is upon such town. (p. 218.)

3. If a proper bill be filed to restrain and enjoin a town from opening

streets and alleys through the land of any person against his consent, and a preliminary injunction be awarded therein against the said town, and the plaintiff in his bill states a ease wherein he is clearly entitled to the relief prayed for, if the allegations of his bill should be sustained by sufficient proof, such injunction will not be dissolved upon the filing of the defendant's answer, unless such answer substantially denies all the material allegations of the said bill. (p. 220.)

Woods, Judge, furnishes the following' statement of the case:

This is a hill tiled by the Mason City Salt and Mining Company, a corporation existing and organized by and under the laws of this State, against the town of Mason, an incorporated town in this State, to enjoin and restrain the said town from opening certain streets and alleys through the plaintiff's lands without having first condemned the same to the public use. The material allegations of the plaintiff's bill are, that it is the owner in fee simple of a certain tract of hind in the county of Mason in this State lying adjacent to the corporate limits of the town of Mason, containing about two hundred and seventy-three acres; that it, and those under whom it claims title to said land have been in the open, notorious and continuous possession of said land ever since, and before the 15th of September, 1856, claiming the said land and exercising acts of ownership over it as the property of the said plaintiff and those under whom it claims; that the defendant wrongfully claims that certain portions of said land which it designates and describes as"Wide alley, from Brown street to Anderson street, and alley D, from First street to Front street" that said "Wide" alley is twenty feet wide, and alley "D." is sixteen feet wide; that the said defendant pretends that said "alleys," many years ago, were, and that thev had been dedicated to it by the then owner of said land for the public use of said town; that neither the said defendant nor any other person, officer or corporation at any time whatever in any manner whatever accepted said pretended dedication of said pretended alleys, nor did the said defendant either by its officers, agents or servants, do or cause to be done any work on said pretended alleys, nor did any person or public authority do any work on said pretended alleys within the boundaries claimed by the defendant, and the said defendant refused to accept said pretended dedication of said "Wide" alley and alley "D;" that the plaintiff owns and is seized in fee simple of the lands abutting to said "alleys;" the defendant has no interest or right, title or estate of any sort whatever in the real estate designated by said streets and alleys; that the real estate over which said pretended streets and said " Wide" alley and alley "D." has been enclosed by a good and substantial fence built by those under whom the plaintiff claims its title to said land for a period of more than ten years past, and that two dwelling houses were built by those under whom the plaintiff claims title, on that portion of said land which is designated "Wide" alley; that said parties under whom it claims title to said land, built another large house between said pretended streets; that these buildings are worth one thousand five hundred dollars and are now used and occupied by the plaintiff; that the plaintiff is the owner of a large salt furnace and bromine works next to and adjoining said pretended streets and alleys, and is manufacturing large quantities of salt and bromine at that place; that to carry on said works successfully, it is necessary for him to use said pretended "Wide" alley and alley "D;" that the defendant, through its officers, agents and attorneys, is threatening to tear down said fences enclosing said lands, and to tear down said buildings and remove the same, and in execution of said threat, the defendant through its town council, street commissioner and town sergeant, has commenced and destroyed a portion ol said fence enclosing said land; that the defendant, through its council and officers, is threatening and attempting to take said "Wide" alley, alley "D" and a portion of a pretended street called Front street and convert and appropriate the same to the public use of said town without any legal condemnation of the same and without compensating or in any way paying plaintiff therefor; that said defendant through its town council and duly authorized agents is persisting in its threats to tear down all said fences, remove said buildings and take said pretended streets and alleys and convert the same to the use of the town of Mason for streets and alleys against the consent of the plaintiff, to his irreparable injury, and thereupon prays that said defendant "the town of Mason," its council, street superintendents, sergeants, officers, agents and servants be enjoined from entering upon the said premises designated as part of Front street and "Wide" alley and alley "D," and from removing, tearing down or interfering with said fences, houses and buildings and also from attempting to take said premises or any part; thereof and converting the same to the public use of said town of Mason as streets and alleys until they answer and show cause why the said defendant, its council, officers and servants should not be perpetually restrained from doing so, and for general relief,

This bill was duly verified by Gr. Y. Roots, president of Mason City Salt and Mining Company, and presented to the judge of the circuit court of said county, who awarded an injunction thereon in these words:

" The defendant, the Town of Mason, its officers, agents and employes are restrained, inhibited and enjoined from entering upon the premises and real esta: e claimed by plaintiff, and set out and described in the plaintiff's bill and exhibits, and from removing, tearing down or in any manner interfering with the fences, houses and buildings upon said premises and from taking said premises, or any part thereof, for the public use, or otherwise interfering there- with, without first obtaining condemnation thereof, as prescribed by law, until the further order of the court. But this injunction is not to take effect until the plaintiff, or some responsible person for it, shall give bond, with good security, before the clerk of the circuit court of Mason county, West Virginia, in the penalty of one hundred dollars, conditioned to pay all such costs as may be awarded against the plaintiff, and all such damages as may be incurred by any person by reason of said injunction in case the same shall hereafter be dissolved.

" To the Clerk of the Circuit Court of Mason Comity, West Virginia:

"J. Smith, uJudgeofthe 7th.Tad. Dis.

"June 23d, 1876."

This bill was filed, injunction made effective, and process executed on defendant, and decree nisi taken at July rules, 1876; and at August rules the bill was taken for confessed, and set for hearing by the plaintiff. At a circuit court held for said county on the 16th day of October, 1876, the defendant appeared by its attorney and demurred to the plaintiff's bill, in which the plaintiff joined. 'No further action was taken in the cause until April 5, 1878 when the defendant again appeared, and moved the court to dissolve the said injunction. On the 19th day of April, 1878, the court overruled the demurrer, and also the said motion to dissolve the injunction, and required the defendant to answer the plaintiff's bill, by the first day of the next term of said court. The defendant made default and failed to file its answer at the next term of said court, and no proceedings were had until April 15, 1879, when the defendant filed its answer to the plaintiff's bill, to which it replied generally; and the defendant again moved to dissolve said injunction, and the plaintiff moved to continue the cause. The answer on the day it was filed' was verified in the usual form, by the oath of the mayor of the defendant.

The answer in substance alleges, the said streets and alleys were dedicated to the use of said town by one Payne on the 15th of September, 1856, and the paper-writing whereby the dedication was duly recorded in said county on the 16th of September, 1856, and that the deed under which the plaintiff claims title to one undivided moiety of said tract of land, although dated on the 1st of February, 1856, was not delivered until the 4th of April, 1857, nor recorded until the 5th of January, 1858, and that therefore the said dedication was made while Payne owned the fee to the whole tract; that it is not true that the plaintiff is seized in fee simple of that portion of the lands covered by said streets and of "Wide" alley and alley "D;" that it is not true that the plaintiff and those under whom it claims title to said land, included in "Wide" alley and alley "D," or of any of said streets, have been in continuous, notorious and adverse possession thereof before and ever since the 16th September, 1856, claiming and exercising acts of ownership over the same as the property of plaintiff and of those under whom it claims; that the said town of Mason did accept said dedication of said streets and alleys and...