Smith v. Cornelius
| Decision Date | 13 November 1895 |
| Citation | 23 S.E. 599,41 W.Va. 59 |
| Parties | SMITH et al. v. CORNELIUS et al. |
| Court | West Virginia Supreme Court |
Submitted September 7, 1895
Syllabus by the Court.
1. The property known as the "Berkeley Springs" is the property of the state of West Virginia, the legal title being in the corporation known as the "Trustees of the Berkeley Springs," in trust for the public, as provided by chapter 202, Acts 1882.
2. Possession and claim of ownership undisputed by Virginia and this state of said property for 119 years raises a presumption of a grant or dedication by Lord Fairfax, as lord of the fee, for public use.
3. Long and uninterrupted possession of land with claim of ownership will justify a presumption of grant.
4. Long and uninterrupted possession of land by the state, with claim of ownership for public use, and user by the public, will raise a presumption of a dedication by the proper owner for such public use.
5. Where a public corporation vested with state property for public use makes a lease of it which is ultra vires, a private person cannot sustain a suit to contest it; this can be done only by the state or the corporation.
6. Directors, as such, of such corporation, cannot sustain such a suit.
7. Nature of office of directors discussed.
8. Liability of directors for wrongful acts referred to.
9. The lease involved in this case of its property by the trustees of the Berkeley Springs is ultra vires and void.
10. A public corporation vested with powers by the state to be exercised for the public cannot transfer to another the exercise of such powers, and make a lease of its property necessary to enable it to execute its functions, without legislative consent.
11. Persons dealing with a corporation must take notice of what is contained in the law of its organization, and must be presumed to be informed of the restrictions annexed to the grant of power by the law by which the corporation is authorized to act.
12. A conveyance is made to one and his assigns. In a suit to annul it, until it appear that he has transferred the property such assigns need not be made parties, as unknown assigns or otherwise.
13. In a suit to annul an act of a corporation as ultra vires, the corporation must be a party.
Appeal from circuit court, Morgan county.
Action by J. Rufus Smith and others against Daniel Cornelius and others to cancel a lease, and for an injunction. From a decree for plaintiffs, defendant Cornelius appeals. Reversed.
W. H Travers and Flick & Westenhaver, for appellant.
D. B Lucas, for appellees.
J Rufus Smith, president of the board of trustees of Berkeley Springs, and C. P. Jack, A. R. Unger, and H. C Harmison, trustees of said board, filed a bill of injunction in the circuit court of Morgan county against Daniel Cornelius and his assigns, unknown to the plaintiffs, alleging that the said board of trustees constituted a corporation with the usual incidents; that they were incorporated by act of the legislature of West Virginia passed March 27, 1882, it being chapter 202 of the Acts of 1882; that the plaintiffs had applied to all the trustees to unite with them in the bill, but only those who were plaintiffs consented to do so; that, before any general meeting of the board, irreparable injury might be done to the springs, baths, and other public property committed to the care and charge of said trustees; that certain of the trustees had assembled and undertaken to organize themselves into a special meeting, and, by a vote of four out of six trustees then present, made an agreement with Daniel Cornelius, or his assigns to alien the said public property for the term of 99 years, and, for the improvement thereof and the public use and managing and controlling it, Cornelius and his assigns were by the agreement allowed to tear down and remove the present bath houses, beautify the grounds, erect new bath houses and an hotel, and manage and control the public property, charging certain rates for certain baths, and certain other rates, to be fixed by Cornelius, for other baths, receiving the returns from the property, and paying the trustees 1 per cent. of net profits from the baths. The bill alleged that, for certain reasons given, the meeting of the trustees at which the agreement was made was irregular and unauthorized to make it, and that it was an act in violation of the charter of said board, as found in said act of 1882, and against its prohibition, and that the action of the board, and the lease deed which had been executed under it (thus leasing the public property and its control, and granting Cornelius and his assigns special and peculiar privileges), were violative of the said act, and of the trust reposed in said trustees, and beyond the power of the trustees, and void. The bill prayed an injunction to restrain Cornelius and his assigns from proceeding under the lease, or taking possession of the property, and that the lease be declared void. An amended and supplemental bill was filed, alleging that, since the preparation of the original bill, a meeting had been called of the trustees to take into consideration the subject of enjoining Cornelius from going on with the lease, but that the meeting refused to take any action looking to an injunction. This amended bill made the corporation the board of trustees of the Berkeley Springs a party defendant. Such proceedings were had that a motion to dissolve the injunction awarded upon the bill was overruled, and the injunction was perpetuated, and Cornelius brought this appeal.
A question which at once calls for decision in this case is have the plaintiffs a right to maintain this bill? This renders it pertinent, if not indispensable, to ascertain the ownership of the grounds at the town sometimes called "Bath," sometimes "Berkeley Springs," --the county seat of Morgan county, known as the "Public Grounds," containing those springs whose waters have been famous for their medicinal properties for 150 years,--since that ownership will indicate who is to prevent the illegal alienation of the property and its diversion from its proper use. At this date the court can have no difficulty in asserting that those grounds are the property of the state of West Virginia. Were we back in time near the act of October, 1776, we likely could not assert the public right to this beautiful property with so much confidence. By that act the Virginia legislature (9 Hen. St. p. 247), it would seem, simply seized 50 acres of the land of Thomas, Lord Fairfax, the celebrated proprietor of the Northern Neck of Virginia, by vesting it in trustees to be laid off into quarter-acre lots, with convenient streets, and established them as a town by the name of "Bath," and authorized the trustees to sell the lots for building purposes, to "accommodate numbers of infirm persons who frequent those springs yearly for the recovery of their health." The act reciting no consent on the part of Lord Fairfax, nor providing for obtaining his consent, and from its mercifully reserving to him "one large and convenient spring, suitable for a bath," and exempting from sale any lot whereon he may have built a house, would seem to be an act of confiscation. Though it gave him, in mercy, the proceeds of sale, yet it took the fee-- the land--from him forever. The act enacted that all the "Warm Springs," as they were then called, except the one reserved to Lord Fairfax, should be vested in the trustees, "in trust to and for the public use and benefit, and for no other purpose whatsoever." Under this clause the trustees marked out that square or plot of ground containing the celebrated springs, and reserved it for public use for the healing and pleasure of the people, as we find it in our day. It is a park of beauty, as well as a fountain of health and pleasure, used and enjoyed by thousands of people every returning summer. The public title cannot be shaken at this late day. Perhaps, it was once questionable. Was that old act of 1776 one of forfeiture or confiscation, or did the Lord Fairfax consent to it? We do not know. If he consented, it does not appear. Those were troublous times when that act passed. The stately and noble old Lord Fairfax, though the patron and unflinching friend of Washington, so much so that he is said to have declared that, if the American Revolution failed, he would save Washington's neck, was yet to the core loyal to King George, as well we might expect him to be when he bethought himself of the princely landed estate vested in him by descent from ancestors who had received it from royal grant. So loyal was he to the mother country, as Kercheval says, that when he heard at Greenway Court of the surrender of Cornwallis at Yorktown, and foresaw the loss of the English cause, he called a servant to put him to bed, saying, "It is time for me to die." He died December 10, 1781. Perhaps it was because of his known disloyalty to the colonies that this act of 1776 was passed. Was it valid? We need not inquire. The old lord, bent with age, made no resistance to it. Neither did the Reverend Denny Martin, his nephew and devisee, nor those who subsequently claimed under him. The commonwealth of Virginia claimed it to be, as it was in fact long held in actual possession, for public use, its property. In March, 1857, we find an act of its legislature recognizing it as public property, as it declared that "the public property, in the town of Bath, in the county of Morgan, known as the 'Public Square and Berkeley Springs,"' shall be vested in and governed by a board of trustees, whom it named, and whom it constituted a corporation by the name of the "trustees of the Berkeley Springs," and made sundry provisions of regulation. Thus, the state of Virginia...
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