Pierpoint v. The Town Of Harris Vieee. Julv 21THERENEEDADOT 187G.

• Decision Date: 21 July 1876
• Citation: 9 W.Va. 215
• Parties: Pierpoint v. The Town of Harris vieee.Julv 21, 187G.
• Court: West Virginia Supreme Court

9 W.Va. 215

Pierpoint

v. The Town of Harris vieee.July 21, 1876.

Supreme Court of Appeals of West Virginia.

1. An injunction will lie to restrain a town, from opening streets through a person's land, without first condemning; it according tolaw, when there has been no dedication of such.streets to public use.

2. Where there has been no public use of a street, the owner maydedicate his land to the public for such use, by acts and declarations, without a deed. But in such a case, these acts and declarations must be deliberate, unequivocal, and decided, manifesting a positive, and unmistakable, intention to permanently abandon his property to such public use.

Appeal from, and supersedeas to, a decree of the circuit court of Ritchie county, rendered on the twentyninth day of December, 1873, dissolving an injunction in a suit then pending in said court; and, also, from a decree rendered on the first day of May, 1874, dismissing the bill in the same suit.

The complainant below, and the appellant here, was Z. M Pierpoint, and the respondent and appellee, The Town of Harrisville.

The facts are fully set forth in the opinion of the Court.

The Hon. James M. Jackson, judge of said circuit court, presided at the hearing below.

Scott & Cole for the appellant.

Robert S. Blair for the appellee.

Green, Judge:

In August, 1873, Z.M. Pierpoint applied to the Judge of the circuit court of Ritchie for an injunction to restrain the Town of Harrisville from opening streets in a threeacre lot, owned by the plaintiff, and which the town claimed had been dedicated to the public. The injunction was granted.

The pleadings and evidence show that, in 1843, Henry Rex road conveyed a tract of thirty-one acres, in said county, to Daniel Rexroad. In 1845, having no title to the land, he presented to the county court of Ritchie a plot of a town, which he called Harrisville, with certain streets and alleys marked out on the plot, which town, so laid out, was principally, if not altogether, on this thirty-one acres, not then owned by him; and, on his motion, the said county court ordered said plot to be recorded. In 1847, Daniel Rexroad conveyed three acres, a part of this thirty-one acres, to Francis Braddock, and after his death, in 1850, his heir conveyed it to Mary G. Braddock; and she, in 1859, conveyed it to the plaintiff. On February 26, 1869, the Legislature passed an act incorporating the town of Ilarrisville. This act provided that the limits of said town should be:" The lots, streets, and alleys, as shown in the original plot of said town, together with the several additions that have been made, or that hereafter may be made, to the same." Within the limits of said plot, as made by Henry Rexroad, lies the whole, or greater part of, the three acres of land belonging to the plaintiff. The deeds from Daniel Rexroad to Francis Braddock, and from Mary G. Braddock to the plaintiff, describe this three acres of land as lying adjoining the town of Harrisville, while the deed to her describes it as in the town of Harrisville. Upon the plot made by Henry Rexroad, is marked out, n what is now this three-acre lot, a street running east and west, marked South street; a street running north and south, called Cross street; and two alleys, one now called Cherry alley, the other Apple alley, both running north and south. Cherry alley was opened, some time before this suit was instituted, a short distance, as far as lot, marked on said plot, No. 7; the part opened runs alongside of lot No. 10 to the main street of said town, which runs east and west. On November 25, 1872, the plaintiff made a deed to George Cokely, conveying onequarter acre, part of this three-acre tract, which onequarter aere he describes as: "Known on the plot of said town as lot No. 7, and bounded as follows: Beginning at a stake, corner to lot No. 10, owned by John Hall, and on Cherry alley, thence south 8 poles, thence west 5 poles, thence north 8 poles, thence 5 pedes to the Beginning." On May 6, 1873, the town council passed an order, requiring the plaintiff to open streets and alleys on this three-acre lot, and August 18, they passed a similar order, but, at plaintiff's instance, extending the time to September 18, 1873. On the twenty-fifth of August, 1873, the council, being offended at something the plaintiff said, rescinded this order, and passed another order, in these words:" Z. M. Pierpoint and T. F. Leach are hereby required to open South street, from Spring street to Apple alley, and all streets and alleys, not now opened, and leading from said South to Main street, within five days from date, and in the event they fail to open said streets and alleys, within the time prescribed, the sergeant of this town is hereby directed to open the same according to law." The sergeant notified him that, if not opened, the council would open them at his expense, according to law. The members of the council, under the advice of their attorne, claimed the right to open these streets forcibly, if n pessary, and at his expense. The streets and alleys to 1: opened are on this threeacre lot. The plaintiff coi plained to the council while in session, and to others, o his being ordered to open these streets and alleys, an< said he would open them as fast as he sold lots. He said d one witness, on the evennig of August 18, 1873: "It tas very hard for any set of men to force him to open South street at the present time." He complained to this witness of the expense he _would be put to, having to make so much fence; he pointed out to him the stakes of George Cokely's lot, which he said was on the town side of South street; he said he intended opening the street to the east side of Cokeley's lot, and also the alley running alongside of this lot. He said he would open streets and alleys as fast as he could sell lots. He pointed out where South street would run; said nothing about the right of the council to open it, but, before that, he had denied their right. These are the declarations most relied on by the appellee. There is much other evidence not bearing on the question in controversy. We have extracted from this mass of testimony all that is important. It is admitted that this three acres is part of a large field, all under one fence, which is farmed, and that this field lies contiguous to the plaintiff's mansion house.

On the twenty-ninth of December, on the hearing of a motion to dissolve the injunction, the judge dissolved the same; and on the hearing of the same, May 1, 1874, the court dismissed the bill, and decreed that the plaintiff pay to the defendant his costs.

The appellee insists that a court of equity ought not, in such a case as the bill presented, to have interfered by injunction, but should have left the plaintiff to seek his redress, if he sustained damage, by a suit at law. Both upon principle and authority, if there never had been a dedication of these streets to the public, the plaintiff has a right to enjoin the town from opening these streets, till they have condemned the land, by regular proceedings according to law, and are not compelled to wait till the streets have been opened, and then seek redress by a suit at law, J for the damages he may have sustained. Such...