Ralston v. Town of Weston

• Decision Date: 22 April 1899
• Citation: 33 S.E. 326,46 W.Va. 544
• Parties: RALSTON v. TOWN OF WESTON.
• Court: West Virginia Supreme Court

33 S.E. 326

46 W.Va. 544

RALSTON v. TOWN OF WESTON.

Supreme Court of Appeals of West Virginia.

April 22, 1899

Submitted January 30, 1899

Syllabus by the Court.

1. If an original owner of a tract of land lays the same off into town lots, with streets and alleys between, and has the same so platted, and sells the lots with reference to such streets and alleys as boundary lines of the same, and such plat is adopted by the corporate authorities of the town in which such lots are situated, a purchaser of one of such lots is estopped from denying the dedication of such streets to public use.

2. The statute of limitations runs against the state and municipal corporations, as against individuals in all similar cases.

3. The maxim, "Nullum tempus occurrit regi," applies to all the sovereign rights and property of the people of the state dedicated to public uses, and of which they cannot be deprived otherwise than according to their express will and appointment.

4. The public easement in the public highways, including roads streets, alleys, and other public thoroughfares, dedicated to the use of the general public by individuals, or under the right of eminent domain, is such property, and cannot be lost to the people by the negligence of public officials or the unlawful acts of individuals.

5. An individual cannot destroy such easement by setting up a claim by prescription, adverse possession under the statute of limitations, or equitable estoppel, as the people cannot be deprived of their sovereign rights in any of these ways.

6. The opinions of the judges of this court in the cases of City of Wheeling v. Campbell, 12 W.Va. 36, Forsyth v. City of Wheeling, 19 W.Va. 318, and Teass v. City of St Albans, 17 S.E. 400, 38 W.Va. 1, in so far as they hold that the public easement in the public highways of this state is subject to the bar of the statute of limitations, are disapproved.

7. It is the expressed will of the people of this state that private property shall not be taken or damaged for public use by governmental officers or agencies, without just compensation.

Appeal from circuit court, Lewis county; W. G. Bennett, Judge.

Action by Er Ralston against the town of Weston. Judgment for plaintiff, and defendant appeals. Reversed.

Edward A. Brannon, for appellant.

William W. Brannon, for appellee.

DENT P.

This is a controversy between the town of Weston, defendant, and Er Ralston, plaintiff, over the right to a public easement in a small strip of land 13 1/2 feet by 72 1/2 feet, being a part of Water street, as originally laid off and dedicated to public use at a very early date, almost beyond the memory of man, by Maxwell and Stringer, who sold lot 12, adjacent to such strip, to those under whom plaintiff claims title. While plaintiff raises the question of dedication and acceptance as is usual in similar cases, his main reliance is on adverse possession under a claim of title for a much longer period than the statute of limitations. From the evidence, this case clearly comes within the rules of law and principles determined in the cases of Taylor v. Philippi, 35 W.Va. 554, 14 S.E. 130, and Jarvis v. Town of Grafton, 44 W.Va. 453, 30 S.E. 178; for the reason that the original occupation of the strip in controversy, and the continuance thereof, was under the sufferance and permission of the municipal authorities, and no claim was made thereto under the statute of limitations, until it was supposed that, under the decision in the case of City of Wheeling v. Campbell, 12 W.Va. 36, as followed in the cases of Forsyth v. City of Wheeling, 19 W.Va. 318, and Teass v. City of St. Albans, 38 W.Va. 1, 17 S.E. 400, the public easement therein was barred, and could not be regained except by recourse to the right of eminent domain. The original occupation not being adverse, it could not become so until the defendant had positive notice that the plaintiff was going to set up a claim of title perfected by adverse possession. Hutson v. Putney, 14 W.Va. 561; Industrial Co. v. Schultz, 43 W.Va. 470, 27 S.E. 255; Creekmur v. Creekmur, 75 Va. 430; 1 Am. & Eng. Enc. Law (2d Ed.) 798. If the plaintiff had at any time during his long possession given the defendant notice that he intended to hold the land adversely, there is no doubt he would at once have been dispossessed, and no lapse of time, and no possession of a portion of a street not required by the present necessities of the public, could raise the presumption of such notice; for the reason that there is nothing inconsistent with a public easement for the authorities to allow an abutting land-owner the temporary occupation of a public highway not demanded for the present use of the public. It requires great labor and expense to grade, curb, and pave the streets of a town, and it is never done until the exigencies of the public demand it, and unused streets are allowed to lie idle until such requirement, and in the meantime there is no good reason why abutting lot owners may not use unoccupied portions of such street for private purposes, so long as such use does not interfere with, but is entirely subordinate to, the public use thereof. Such has long been the custom, and would continue so, to the benefit of individuals and without hurt to the public, were it not for the baneful effect of the conclusion arrived at by this court in the case of City of Wheeling v. Campbell, cited.

The question of dedication and acceptance is hardly worthy of consideration, from the fact that plaintiff is not the original owner of the land, but claims under a deed and plat by which such street was dedicated to the public, and, it being inconsistent with his title papers, he is estopped from denying such dedication. Such dedication was not an act of his, but was long prior to his deed, which recognized and adopted the same. The same may be said of the acceptance by the defendant. It was perfect before his title accrued, in subordination thereto. Jarvis v. Town of Grafton and Taylor v. Philippi, before cited; Riddle v. Town of Charlestown, 43 W.Va. 796, 28 S.E. 831; Taylor v. Com., 29 Grat. 780; Depriest v. Jones (Va.) 21 S.E. 478; Buntin v. City of Danville, 93 Va. 200, 24 S.E. 830; 9 Am. & Eng. Enc. Law (2d Ed.) 46.

Although, on the question of adverse possession, plaintiff has failed to make out his title, yet as this question is of such general importance, and has been so ably and exhaustively argued by the attorneys of both parties, the Court would be derelict in its duty not to squarely meet the issues raised, and fearlessly settle them for the public good. The point is at once presented whether the law justifies the court in reviewing, disapproving, or modifying the doctrines enunciated, and conclusion reached, in the case of City of Wheeling v. Campbell, followed in the cases of Forsyth v. City of Wheeling and Teass v. City of St. Albans, and recognized in the cases of Taylor v. Philippi and Jarvis v. Town of Grafton, all heretofore cited.

The case of City of Wheeling v. Campbell, while ably considered in following the supposed weight of authority, is a plain and palpable misapplication of the statute of limitations to the sovereign rights of the people. That the statute of limitations applies to municipal corporations there can be no question; that it now applies to the state in like manner as to individuals, by express statutory provision, there can be no question; but it does not apply to the sovereign rights of the people, except as they are restricted in the constitution by their manifest will therein contained. In the case of Levasser v. Washburn, 11 Grat. 576, quoted and approved by Judge Johnson in the case of City of Wheeling v Campbell, Judge Lee says: "It is a maxim of great antiquity in the English law that no time runs against the crown, or, as it is expressed in the early law writers, 'Nullum tempus occurrit regi.' The reason sometimes assigned why no laches shall be imputed to the king is that he is continually busied for the public good, and has no leisure to assert his rights within the period limited to his subjects. A better reason is the great public policy of preserving public rights and property from damage and loss through the negligence of public officers. This reason certainly is equally, if not more, cogent, in a representative government, where the power of the people is delegated to others, and must be exercised by these, if exercised at all; and accordingly the principle is held to have been transferred to the sovereign people of this country, when they succeeded to the rights of the king of Great Britain, and formed independent governments in their respective states. And, though it has sometimes been called a prerogative right, it is, in fact, nothing more than an exception or reservation introduced for the public benefit, and equally applicable to all governments." The constitution of this state clearly shows in whom all sovereign rights reside. Section 2 of article 2 declares: "The powers of government reside in all of the citizens of the state and can be rightfully exercised only in accordance with their will and appointment." Section 2, art. 3, declares: "All power is vested in and consequently derived from the people. Magistrates are their trustees and servants and at all times amenable to them." The people, in their collective capacity, are sovereign. To them all so-called "prerogative rights" belong, and from them they cannot be taken, or in any wise diminished, except in accordance with their own appointment. This state has no so-called "crown lands" or public domain, except its public highways, including roads, streets, alleys, and other thoroughfares devoted to the use of the general public, and also probably a few public squares and...