McClellan v. Town oe Weston.

• Decision Date: 07 September 1901
• Citation: 49 W.Va. 669
• Parties: McClellan v. Town oe Weston.
• Court: West Virginia Supreme Court

49 W.Va. 669

McClellan

v.Town oe Weston.

Supreme Court of Appeals of West Virginia.

Decided September 7, 1901

1. Town Corporation Persons Must Take Notice.

Sections 8 and 9 of an Act of the General Assembly of Virginia passed January 14, 1846, incorporating the town of Weston, are as follows: "8. Be it further enacted, That all streets, cross streets and alleys, which are already laid off and opened, or which may at any time be located, surveyed and opened in said town, shall be and they are hereby established as public streets and alleys of the said town. 9. That the said trustees shall, within six months after the passage of this act, open all the public streets and alleys of said town; shall make or cause to be made a survey and correct plan or plat of said town, showing distinctly each lot, street and alley, and the size and width thereof, numbering anew all lots, and showing the former as well as the new numbers of all lots which have been numbered heretofore; with such remarks and explanations thereon as they may deem necessary and proper; which plan or plat so made out, and under the hands and seals of any four of said trustees, shall be lodged in the clerk's office of the county court of Lewis County, there to be recorded and kept; and the said plan and survey so duly made, signed, sealed and recorded, shall, in all future suits and contests concerning the boundaries of the lots, streets and alleys of the said town, be deemed, held and taken as full and conclusive evidence between the parties: Provided, that infants femes covert, persons non compos mentis, or out of the commonwealth, shall have six months after such disability shall be removed; within which time they may contest such plan and survey so made and recorded." Held: That all real estate owners in the town were bound to take notice of said Act incorporating said town as well as of the acts of the trustees required, by said Act to be performed thereunder, in reference to the plan and survey of said town so to be made, signed, sealed and recorded, (p. 672).

2. Municipal Corporation Survey Recorded.

Such plan and survey when duly recorded was full and complete notice to all abutting real estate owners on the streets and alleys of said town of the claims of the town as to the location of the lines of such streets and alleys, (p. 672).

3. Public Streets Acquire no Title.

Persons in possession of any portion or portions of such streets and alleys so laid out by having the same enclosed and so continued in possession after the making and recording of such plan and survey held such possession subject to the demands of the town whenever it should see proper to open such streets or alleys to their full width for the public use. (p. 676).

Appeal from Circuit Court, Lewis County.

Bill by Florid e MoClellan and others against the town of Weston. Decree for complainants, and. defendant appeals.

Reversed.

E. A. Brannon, for appellant. W. W. Brannon, for appellees.

McWiiorter, Judge:

On the 18th clay of October, 1818, Daniel Stringer and wife conveyed by deed of that date to Lewis Maxwell "The following lots or parcels of ground situate, lying and being in the town of Preston. * * * * Lot as named in the ground plan of said town Nos. 1 and 2, adjoining each other, and bounded as followeth (to-wit) on the north side by lot No. 3, on the south side by First street, on the east end by Centre street for one hundred and forty-five feet and on the west end by an alley, each containing seventy-two, one-half feet in breadth and one hundred and fifty feet in length. By deed of date 23d December, 1836, Lewis Maxwell conveyed to John Lorentz the said lot No. 1, described in said deed as "situate in the town of Weston, it being lot No. 1, on the west side of Centre street on which said Lorentz's shop now stands, seventy-two and one-half feet in front and one hundred and fifty feet in length. By deed dated 20th November, 1844, John Lorentz and wife conveyed to Rankin W. Douglass the same lot No. 1 described as situate in the town of Weston on the west side of Centre street, it being lot No. 1, and bounded on the southwest by First street, on the west by an alley, on the north by lot No. 2, on the front by Centre street, being seventytwo and one-half feet in front and one hundred and fifty feet back, containing one-fourth of an acre." By deed dated 16th day of November, 1846, Douglass and his wife conveyed said lot No. 1 by same description to William E. Arnold. Said William E. Arnold by his last will and testament devised said lot to Susan M. Arnold, his wife, for life, remainder in fee to his daughter, Floride McClellan. The General Assembly of Virginia by an act passed January 14, 1846, incorporated the town of Weston, by which name it had been called for several years before its incorporation, but had theretofore at one time been known as Preston and at another as Fleshervillc. Section 8 of said act provided, "That all streets, cross streets and alleys which are already laid off and opened, or which may at any time be located, surveyed and opened in said town, shall be and they are hereby established as public streets and alleys of the said town." And section 9 provided that the trustees for whose election it was provided in said act should "within six months after the passage of this act, open all the public* streets and alleys of said town; shall make or cause to be made a survey and correct plan of all said town, showing distinctly each lot, street and alley, and the size and width thereof, numbering anew all lots, and. showing the former as well as the new numbers of all lots which have been numbered heretofore, with such remarks and explanations thereon as they may deem necessary and proper; which plan or plat so made out, and under the hands and seals of any four of said trustees, shall be lodged in the clerk's office of the county court of Lewis County, there to be recorded and kept; and the said plan and survey so duly made, signed, sealed and recorded, shall, in all future suits and contests concerning the boundaries of the lots, streets and alleys of the said town, be deemed, held and taken as full and conclusive evidence between the parties: Provided, That infants, femes covert, persons non compos mentis, or out of the commonwealth, shall have six months after such disability be removed; within which time they may contest such plan and survey so made and recorded." Under said section the trustees of said town of Weston proceeded to make such survey and map, and on the 8th day of June, 1847, lodged, the same in the clerk's office of the county court of Lewis County, and caused the same to be duly recorded therein. On the first day of June, 1899, the council of the town of Weston passed an order to open up the streets to the full width according to the said plan and map. The said life tenant of lot..No. 1, Susan M. Arnold (since deceased) and the remainderman Floride M'cClellan enjoined the town authorities from opening said Centre street through said lot by removing therefrom such obstructions as had been placed thereon, claiming that the lot is enclosed just as it was at the time and before it came into the possession of William E. Arnold in November, 1846, and that it had been so held as against the town and everybody adversely all these years, and cannot be now disturbed in that possession relying for protection in their adverse possession on the case of Campbell v. City of Wheeling, 12 W. Va. 36; Teass v. St. Albans, 38 W. Va. 1, and other cases cited. The defendant, the (own of Weston, filed its demurrer and answer. Depositions were taken, the cause submitted, and the circuit court perpetuated the injunction. The defendant appealed from said decree, assigning as error the perpetuation of the injunction, because in doing so the circuit court totally and wholly ignored and disregarded the decision of this Court in the case of Ralston v. Weston, 46 W. Va. 544, (33 S. E. 326), and the later case of Weston v. Ralston, 36 S. E. 446, and in effect followed the case of the City of Wheeling v. Campbell, 12 W. Va. 36, which this Court overruled and repudiated in said case of Ralston v. Weston. Counsel for appellee in a very elaborate and very able brief reargues the case of Ralston v. Weston, supra, to satisfy the Court that its decision in that case was wrong, and should be overruled in deciding the case at bar, and thus return to what he terms the safe and sound position held in Wheeling v. Campbell, 12 W. Va. In the case of Ralston v. Weston, followed by that of Weston v. Ralston, especially in the concurring opinion of Judge Buannon in the latter, the questions involved in the case at bar are so thoroughly considered and discussed that very little new light can be thrown upon them. Prior to October, in the year 1818, a "general plan" of the town of Weston (then called Preston) had been adopted, and the lot No. 1 in controversy was conveyed with reference to that general plan as mentioned in the deed from Daniel Stringer and wife to Lewis Maxwell, the lot was described as fronting on Centre street. The streets and alleys as per that plan had been dedicated to the public and lots sold with reference thereto. When the dedication took place does not appear. There is no plat produced showing any "general plan" prior to that of 1847. The act of the General Assembly of January 14, 1846, incorporating the Town of Weston, adopted the general plan of the said town already theretofore accepted and acquiesced in by all the parties interested. Section 9 of said act providing that the trustees should "within six months after the passage of the act, open all the public streets and alleys of said town," and should make or cause to be made a survey and correct plan or plat of said town showing distinctly each lot, street and alley, and the size and width thereof, numbering anew all lots and showing the former as well as the new numbers of all lots which had been...