Plaintiff v. Town Of Charlestown.

• Decision Date: 17 November 1897
• Citation: 43 W.Va. 796
• Parties: Riddle et al. v. Town of Charlestown et al.
• Court: West Virginia Supreme Court

43 W.Va. 796

Riddle et al.

v.Town of Charlestown et al.

Supreme Court of Appeals of West Virginia.

Submitted September 6, 1897

Decided November 17, 1897

Deeds Reservations in Deeds Validity of Reservations.

Stipulations, reservations, exceptions, or conditions in a deed, which are inconsistent with, and tend to depreciate or destroy, the estate or interest guaranteed, are void. (p. 798.)

Dedication Streets Reservations in Deeds Validity of Reservation.

When an owner of real estate within the corporate limits of a town lays and plats the same off in town lots, streets, and alleys, and sells such lots with relation to such streets and alleys, granting to the purchasers the use of such streets and alleys, the same as though they were public streets and alleys in all respects, and throws them open to the use of the public, he will be considered to have dedicated the same to public use, although the deeds for the lots and such streets and alleys may contain a reservation to the grantor of any damages that may be recoverable against the municipality in case the bed of such streets and alleys should be thereafter condemned for public use, as such reservation is inconsistent with and repugnant to the nature of the estate or interest granted in such streets and alleys, and tends to the destruction thereof. (p. 798.)

Equity Jurisdiction Injunction Remedy at Law.

Equity will not enjoin municipal assessments, merely on the grounds of illegality or irregularity, when the municipality, in making such assessments, is not exceeding the constitutional or statutory limit of its authority, as the person aggrieved in such case has adequate remedy at law for his relief. (p. 799.)

Appeal from Circuit Court of Jefferson County.

Rill by Rebecca Hunter and others against the town of Charles Town and others. From a decree for defendants, plaintiff's appeal.

A ffirmed.

W. H. Travers, for appellants. James M. Mason, Jr., for appellees. Dent, Judge:

Rebecca Hunter and others filed their bill in chancery in the Circuit Court of Jefferson County against the town of Charles Town to prevent the authorities of defendant from laying a pavement along the eastern side of Samuel street extended, in so far as it abutted on plaintiff's property, and prevent the assessment of the expense thereof against the owners. A temporary injunction was granted, but on a final hearing was dissolved.

The contention of the plaintiffs is that there was no dedication of the street to the public, nor acceptance thereof by the town, and that the proceedings on the part of the council were otherwise illegal and irregular. The dedication appears to be clear beyond all controversy. The plaintiffs had the land laid off into town lots, extending Samuel street through their land to the land of others, who continued it on, with the aid of the county, beyond the corporate limits, to the public highway. It was thus used by the public for many years, and was worked by the town in a small way, until it was decided to grade it, putin a curb, and require the abutting owners to construct pavements along it. On receiving notice to this end, the plaintiffs immediately set up a claim of non-dedication, not that they wanted to or could close the street, but they desired to avoid payment for their portion of the pavement, and have damages against the town for the fee simple of the street. The principal ground relied on by plaintiffs in support of their contention is a reservation in certain deeds made by them as far back as the 20th of July, 1868, in these words: "But the said parties hereto of the first part do not hereby relinquish any claim to damages that may be properly recoverable in the way of compensation from the corporation of Charles Town, should the same condemn for public use the bed of Samuel street as extended according to the plans of the said addition to Charles Town." The deeds contained, also, the following clause: "And the parties hereto of the first part covenant and agree with the parties of the second and third part to keep open for their use, in the same manner as a public street, the street known as '...