Payne v. Godwin

• Decision Date: 10 June 1926
• Parties: IRA F. PAYNE, ET AL. v. FITCHETT GODWIN, ET ALS.
• Court: Virginia Supreme Court

Page 1019

147 Va. 1019

IRA F. PAYNE, ET AL. v. FITCHETT GODWIN, ET ALS.

Supreme Court of Virginia, Richmond.

June 10, 1926.

1. STREETS AND HIGHWAYS — Dedication — Laying Off Town and Selling Lots with Reference to Recorded Plat. — A land company, when it laid off its land into lots, streets and alleys, sold lots with reference thereto, recorded the map or plat, thereby conclusively and perpetually dedicated said streets and alley to the public.

2. STREETS AND HIGHWAYS — Dedication — Laying Off Town and Selling Lots with Reference to Recorded Plat. — When lands are laid off into lots, streets and alleys and a map or plat thereof is made and recorded, all lots sold and conveyed by reference thereto, without reservation, carry with them, as appurtenant thereto, the right to the use of the easement in such streets and alleys necessary to the enjoyment and value of said lots.

3. DEDICATION — Deeds — Conveyance to Public at Common Law. — At common law a definite and certain grantee is necessary to take lands by grant or conveyance, and hence a grant or conveyance to the general public could not take effect. The law meets this difficulty by the doctrine of dedication, which recognizes the right of the public thus acquired by estopping the dedicator from disputing them. The principle is founded in public convenience.

4. STREETS AND HIGHWAYS — Dedication — Easement — Fee. — At common law where streets, alleys, and highways are dedicated to the public without reservation, the effect thereof is to vest in the State for the entire public an easement in the land dedicated for purposes of passage and other rights to which such streets and alleys may be used as public thoroughfares. If the dedicator does not reserve or dispose of the fee in the street, it vests in the purchasers of the abutting lots to the center of the street or alley subject to the public rights, with a vested right to ingress and egress, and light and air from the street and alley abutting their respective lots.

5. STREETS AND HIGHWAYS — Dedication — Alley — Number of Persons Using Way — Width of Way. — Where the term "alley" is used in a plat or statute concerning cities or towns, it will be taken to mean a public way, unless the word "private" is prefixed or the context requires that a different meaning be assigned to the term, and it has been held that, in laying out an addition when alleys are called for, it may be presumed that alleys run from one street to another. Whatever may be the dimensions of a way, if it be opened to the free use of the public it is a highway; nor is its character determined by the number of persons who actually use it for passage. The right of the public to use the way, and not the size of the way or the number of persons who choose to exercise that right, determines its character. An alley of small dimensions, actually used by only a limited number of persons, but which the public have a general right to use, therefore, may be regarded as a public way.

6. STREETS AND HIGHWAYS — Dedication — Acceptance. — A way cannot be deemed a public one so as to charge the local authorities with the duty of maintaining it, unless it has been legally established or accepted; but if it is so established or accepted it is to be considered one of the public ways, whatever may be its size or situation, provided it is suitable for any kind of travel by the public.

7. STREETS AND HIGHWAYS — Dedication — Acceptance — Revocation. — While dedication by map is held to be irrevocable by the dedicator or those claiming under him, still it is an inchoate right vested in the public, and the street or alley does not become a highway until established or accepted by competent authority. It is true that the legislature has plenary power to compel the municipality to accept a dedication of a public way, but it is a power carefully to be guarded, and the charters of municipalities will not be construed as imposing this duty unless required in the clearest terms.

8. STREETS AND HIGHWAYS — Dedication — Abandonment — Change — Case at Bar. — In the instant case a town had the inchoate right to accept the easement over the alley in question for the benefit of the public generally and constitute it a public way, and the plaintiff as an abutter owned the fee in the alley abutting his lots subject to the public easement, with the private right to ingress and egress into his lots therefrom, and the further right as one of the public to use the public easement over the alley. The town by ordinance closed the alley, which for thirty-eight years had not been used by anyone as a public way, and complainant since his purchase of lots abutting upon it had treated the alley as abandoned and as not essential to the employment of his lots.

Held: That complainant was not entitled to an injunction against the closing of the alley, especially as the ordinance established another alley to which complainant's lots had access.

9. STREETS AND HIGHWAYS — Dedication — Revocation — Abandonment. — Until the dedication has been accepted for the public, the dedicator of a public way or those claiming under him way revoke or abandon the dedication by consent of the State or municipality, and such abandonment may be established in pais by long non-user and enjoyment of same, without claim on the part of the municipality.

10. STREETS AND HIGHWAYS — Dedication — Abandonment — Consent of Authorities. — If an alley has been accepted by the State or municipality thus becoming a highway, it could be abandoned by the municipality, if such abandonment did not violate any vested right, and parties having vested rights therein could consent to its abandonment.

11. DEDICATION — Enforcement of Acceptance by Municipality. — Courts cannot compel a municipality to accept the dedication of an alley and assume the burden of maintaining the same for the benefit of an abutting owner.

12. STREETS AND HIGHWAYS — Obstruction — Public or Private Nuisance — Injunction by Individual. — The obstruction of a public highway is a public nuisance and the trend of authority is that an individual cannot maintain a bill to enjoin such nuisance unless he can show that he has suffered or will suffer therefrom, special and peculiar damages or injury to himself, as distinguished from damage or injury to the general public. Moreover such special and peculiar damage or injury must be direct and not purely consequential, and must be different in kind, and not merely in degree, from that sustained by the community at large. When a party has an easement of passage over a public street along with the public, an injunction will not lie at the suit of the party to prevent the vacation of the street.

Appeal from a decree of the Circuit Court of Accomac county. Decree for defendants. Complainant appeals.

The opinion states the case.

D. Frank White, Mapp & Mapp, and Herbert Barnes for appellants.

J. Harry Rew and George L. Doughty, Jr., for appellees.

CHRISTIAN, J., delivered the opinion of the court.

This is an appeal by appellants (plaintiffs in the trial court) from a final decree of the Circuit Court of Accomac county in a chancery suit praying for an injunction to perpetually restrain and enjoin the defendants from closing or rather abondoning a certain alley in the town of Parksley. This final decree denied the relief prayed for in the plaintiffs' bill and dismissed the suit with costs. The facts out of which the controversy arose are not controverted and are briefly as follows:

The Parksley Land and Improvement Company platted the town of Parksley into lots, streets and alleys, and by deed dated March 27, 1886, conveyed a lot by reference to said plat to Mary L. Wilson, and recorded the plat with said deed in the clerk's office of Accomac county on December 8, 1886. The Improvement Company by deed dated March 27, 1886, conveyed to Samuel T. Jones all the twenty lots in the block bounded on the west by Patton avenue; north by Gertrude street; east by Brown avenue; and south by Callen street, as shown upon said plat. Through the center of said block, from Patton avenue, to Brown avenue, the plat showed an alley fifteen feet wide. This alley was the subject of the controversy. Godwin, by various mesne conveyances, became the owner of the entire block, and on May 19, 1916, conveyed to Payne lots 338 and 339 which face south on Callen street, and lots 358 and 359 facing north on Gertrude street. These lots, according to the plat, abutted upon this alley in their rear.

From March, 1886, the owners of these lots dealt with them as though the alley had been abandoned and after the conveyance to Payne of the four lots, Godwin cultivated his remaining sixteen lots without regard to the alley, and Payne fenced off the alley with a pound fence and chicken wire, which condition continued until this bill was filed. Godwin, in 1923, leased his sixteen lots to the Parksley Base Ball Association, Inc., for the purpose...