Miller v. Town of Aracoma

• Decision Date: 28 January 1888
• Citation: 5 S.E. 148,30 W.Va. 606
• Parties: MILLER v. TOWN OF ARACOMA et al.
• Court: West Virginia Supreme Court

5 S.E. 148

30 W.Va. 606

MILLER v. TOWN OF ARACOMA et al.

Supreme Court of Appeals of West Virginia.

January 28, 1888

Submitted January 13, 1888.

Syllabus by the Court.

If, in a suit against an incorporated town, the process be executed by delivering a copy thereof to its mayor, he is not thereby made a party to the suit; and if such town fail to answer the bill it will be taken for confessed against it, although the mayor has filed an answer in the cause.

Where a suit is brought by a landholder against an incorporated town, to enjoin it from opening a public alley through his land without having first condemned the same for public use, according to law, the owner of a lot adjoining such proposed alley, who has been instrumental in moving the public authorities of such town to open such alley, may properly be joined with such town as a defendant in such suit.

Where such town proceeds to open such alley through a man's land, without his consent, and without having first condemned the same for public use, according to law, upon the ground that the land proposed to be taken for that purpose has been dedicated to the public by the owner thereof, the burden of proof that such dedication has been made is upon the town.

Where such town claims that such alley has been, by the acts and declarations of the land-owner, dedicated to the public for that purpose, such acts and declarations must be deliberate unequivocal, and decisive, manifesting a positive and unmistakable intention to permanently abandon his property for that specific public use. ^[1]

A case in which the facts and circumstances appearing in the record were held to be insufficient to establish such dedication to the public use.

Appeal from circuit court, Logan county; IRA J. McGINNIS, Judge.

On the 28th of February, 1885, J. S. Miller presented to the judge of the circuit court of Logan county in vacation his bill verified by his affidavit, against Guy M. Dingess and the town of Aracoma, alleging substantially the following facts That on the 12th of January, 1880, he purchased from one Ellis a house and parcel of land containing about half an acre, situated within the village of Logan Court-House, and within the limits of the town of Aracoma, which was duly incorporated by the circuit court of said county, at the spring term thereof, 1884; that this land had been purchased by Ellis on the 9th of February, 1871, from one Floyd, who had purchased the same with other lands from one Lawson; that at the time Lawson purchased the same, and long prior thereto, said parcel of land had been inclosed with a fence and used by Lawson as his residence, and that said fence remained after the sale of the land to Ellis, to whom Floyd had pointed it out as the boundaries of the land so sold to him; that the title-bond executed by Floyd to Ellis for sale of said land, recognized the existence of a town-plat, then lately made by Floyd, on which the land so sold to Ellis was marked as lots "A" and "B," which were the first lots sold by Floyd after making the addition to the village of Logan Court-House called the "New Plan of Aracoma;" that it was at first the intention of Floyd in making said addition to said town to have an alley between said lots sold to Ellis, which have since been numbered 24 and 25, respectively; but that Floyd then abandoned that intention, and by his title-bond to Ellis sold him both lots and the alley between them, making 212 feet front; and that there never has been any claim on the part of any one that any alley was ever made, laid off or dedicated to the public, on the upper end of his property; and that his inclosure covers only what was always claimed by said Ellis under his title-bond, and which has been in his possession and the possession of the plaintiff ever since the purchase thereof by Ellis for Floyd. He further alleges that within the last two years the defendant Dingess purchased from said Floyd a lot adjoining plaintiff's said lots on the upper side thereof, and he now claims that there has been and is an alley between said lot and plaintiff's lots, which, as Dingess claims, is in the possession and within the inclosure of the plaintiff, which alley, he further claims, was dedicated by Floyd to the public; whereas the plaintiff avers that no such dedication was ever made either by grant or by public use, and that no alley has ever been claimed or used by the public at large, either within the inclosure of the plaintiff, or between his inclosure and the lot now owned by Dingess, and that no such alley as the one now claimed by him was originally shown on Floyd's said plat of the town. The bill further alleges that the plaintiff and his vendor, Ellis, have been, since the 9th day of February, 1871, in peaceable and quiet possession of the ground over which Dingess claims this easement under and by virtue of said title-bond to Ellis, claiming title to every portion of the premises inclosed by his said fence, which constitutes a legal bar to any action or proceeding to dispossess him of any part of said premises. The bill further alleged that the common council of the town of Aracoma being moved thereto by the said Dingess, without any right or authority to take any part of the plaintiff's said property for public use, by its order passed on the 11th of February, 1885, ordered the plaintiff to remove his inclosure, and open said alley, as claimed by Dingess, to the public use, on or before the 3d of March, 1885, which he refused to do; whereupon said common council, at a meeting thereof on the ___ day of February, 1885, adopted the following order: "It appearing that J. S. Miller has refused and neglected to open the alley fenced up by him between his lots and the lots of G. M. Dingess, as was ordered by this council at a meeting held on the 3d of January, 1885, it is ordered that the superintendent of roads, streets, and alleys do cause the same to be opened for public travel." The plaintiff thereupon prayed that an injunction be awarded enjoining the defendants and each of them from trespassing upon or removing his said inclosure, or attempting to locate said alley on his premises, and for general relief. A preliminary injunction was allowed as prayed for, which was made effectual by the execution of the bond required by the order of the judge. Process was executed on the town of Aracoma by delivering a copy thereof to its mayor, J. R. Perry, who filed his answer under oath to the bill, to which the plaintiff replied generally. Omitting the formal portions thereof, the material parts of the answer of Perry, mayor of the town of Aracoma, were as follows: "Respondent has no interest in this matter, and that all he has had to do with anything in the matters complained of in the plaintiff's bill, was as a member of the town authorities. He admits that the plaintiff bought of Ellis, and Ellis of Floyd, and Floyd of Lawson; but he avers that Lawson did not use this property as a residence, and the plat and the map of the town referred to by the plaintiff in his bill shows an alley on its face between lots Nos. 23 and 24, and he charges that the plaintiff moved the fence, and took in the alley in controversy." The defendant Dingess also answered the bill under oath, to which answer the plaintiff replied generally. This answer admits that the plaintiff, and those under whom he claims, derived title to the said land at the times and in the manner stated in the bill; that these lots were the first sold by Floyd after he made said plat of Aracoma, and that the lots sold to Ellis were marked thereon at the time he purchased the same from Floyd, and that respondent bought his lot, No. 23, adjoining the lots of the plaintiff on the 8th day of February, 1885, and that he claims that there is and was an alley between said named two lots, and that he has induced the common council of Aracoma to open said alley. Respondent denies that Lawson used this property owned by the plaintiff as a homestead, and he cannot say how much was inclosed; neither does he know whether Floyd showed Ellis where to build his fence, but he avers that the plaintiff, instead of 212 feet, has 275 feet fronting on Dingess street, and that plaintiff's inclosure now includes a considerable part of the lot now occupied by this respondent, and that there is an alley on the plat between respondent's lot and the lots of the plaintiff running at right angles from Dingess street to the river; nor is it true that the plaintiff's inclosure covers only what was claimed by said Ellis, or what was fenced in by him; nor that all of said alley has been fenced up, until within the last year or two. Respondent charges that the fences made by Ellis were made when he went into possession of said lots, but they were mere shifts, and not made on any of the lines of said town-lots, nor did they ever run parallel with any of the boundary lines of either of said lots, the street, or the river, and if they had, they have been moved by the plaintiff, or taken down and rebuilt. And he further avers that there is on the plaintiff's lot No. 24 what he calls a stable, --a mere thing of round poles, which is neither square nor plumb, which fronts on neither street, alley, nor river. Respondent made part of his answer the title-bond executed to him for the sale of lot No. 23, dated February 8, 1885, which describes the same "One town-lot, in Floyd's addition to the town of Aracoma, at Logan Court-House, W. Va., situated on Dingess street, fronting one hundred feet thereon and running back to the Guyan river, adjoining on the south-east side the lot of James M. French, and on the north-east side a twelve-foot alley, on the south-west side of the Simpson Ellis lot, where J. S. Miller now lives." The depositions of ...