Sturmer v. County Court of Randolph County

• Court: West Virginia Supreme Court
• Writing for the Court: ENGLISH, J.
• Citation: Sturmer v. County Court of Randolph County, 42 W. Va. 724, 26 S. E. 532 (W. Va. 1896)
• Decision Date: 09 December 1896
• Parties: STURMER v. COUNTY COURT OF RANDOLPH COUNTY et al.

26 S.E. 532

42 W.Va. 724

STURMER v. COUNTY COURT OF RANDOLPH COUNTY et al.

Supreme Court of Appeals of West Virginia.

December 9, 1896

Submitted September 9, 1896

Syllabus by the Court.

1. A public square in a town or village, which for more than 80 years has been treated as such by the county court of the county, has been recognized as such by the municipal authorities of the town, and used as a public square by the court and the public generally, must be considered as dedicated as a public square for the use of the public.

2. The county court of the county, being desirous of erecting a jail, having as early as November, 1813, agreed with a party fronting on such public square that in consideration of the conveyance of a lot for such new jail to be erected upon on public buildings shall be erected on such public square in front of said party's house, cannot, after said public square has for so many years been dedicated to the public and accepted as such, sell the same to private parties for the erection of private buildings, and the party owning property as aforesaid fronting on such public square may restrain the erection of private buildings thereon by injunction.

Appeal from circuit court, Randolph county.

Bill by Valeria S. Sturmer against the county court of Randolph county and others. Decree for plaintiff. Defendants Hutton and others appeal. Affirmed.

W. T Ice and L. D. Strader, for appellants.

ENGLISH J.

This was a suit in equity, brought by Valeria S. Sturmer, who sued on her own behalf and all the other taxpayers of Randolph county, against Warwick Hutton, Patrick Crickard, L. D Greynolds, and F. J. Smith, in the circuit court of Randolph county, on the 16th day of May, 1895. The plaintiff, in her bill, alleges that she is the owner in fee simple of a certain lot in the town of Beverly, whereon is situated a large hotel building, which has long been known first as the Leonard and then as the Valley House; that said house is situated directly on Water street, and that between it and Main or Jacob street there is situated a small lot of ground and that the frontage of said hotel has always been towards the said Main or Jacob street upon said lot of ground; that her title has been derived from one Adam Myers, who was the fee-simple owner thereof in the year 1813, and of some land adjoining said hotel property on the north side thereof, upon which the jail was erected. In the year 1813 the county authorities had already located and erected the county courthouse upon the southern end of a piece of ground which they then claimed to own which included the lot of ground in front of said hotel property on Main or Jacob street, which they claimed to have been donated to them for public purposes. At that time no permanent jail building had been erected for the use of said county, and the county court was considering the erection of a county jail upon said piece of ground in front of said hotel property. Said Myers, who was then the owner of the hotel property, objected to the erection of the jail on said lot, and, in order to avoid it, proposed to convey to the said county a sufficient lot of ground below and northward for said jail purposes, and there was an order of the county court of said county, a copy of which is filed with the deposition of George W. Printz, in said cause, "at a county court held for the county of Randolph on the 24th day of November, 1813, it was ordered that William Marteny and William Steer be appointed commissioners to contract with Adam Myers for land to build a jail on, and to enter into an agreement with said Myers that the public will put no buildings on the public square unoccupied opposite said Myers House, but it to remain for the use of the public." The commissioners so appointed did contract and agree with said Myers that said Myers should convey to said commissioners, for the uses of the county jail, said lot northward of said hotel property and public square now known as the "Leonard Storehouse Property," upon which the said jail was to be erected (and was subsequently erected), and that said piece of ground in front of said hotel property and between it and the said Main or Jacob street should be forever dedicated to the public for public uses, to remain open, uninclosed, and no public buildings to be erected thereon, and that as a guaranty that this should be carried out in good faith the said commissioners for said county were to convey an undivided moiety in said public square to said Myers (for that both the said county court and the said Myers were equally interested in the dedication and maintenance of said ground as a public square). On the 25th day of November, 1813, this contract was consummated by a deed executed by said Myers and William Marteny, one of the commissioners on behalf of the county court, a copy of which is exhibited, and reads as follows:

"This indenture, made this 25th day of November, 1813, between Adam Myers and Mary Myers, of the county of Randolph, of the one part, and William Marteny and William Steer, commissioners appointed by an order of the county court of Randolph county, at the November term, 1813, to contract with the said Myers for ground to build a public jail on, of the other part, witnesseth, that the said Adam Myers and Mary Myers, for and in consideration of the sum of one dollar, as well as one moiety of the public ground opposite to and in front of said Myers House, so far as the said public ground is not to be occupied by public buildings, to them by the said William Marteny and William Steer in hand paid, the receipt whereof the said Adam Myers and Mary Myers hereby acknowledge, have granted, bargained, sold, and confirmed, and by these presents doth grant, bargain, sell, and convey, unto the said William Marteny and William Steer, commissioners for the said court, a certain lot of land containing one-half quarter of an acre, lying and being in the town of Beverly, adjoining of the public ground, being part of lot known on the plan of said town by 'No. 5'; to have and to hold said lot or parcel of land, with the appurtenances thereto belonging, to them, the said commissioners, for the use of the said court and their successors, to the only proper use and behoof of the said court and their successors forever; and the said Adam Myers and Mary Myers for themselves, their heirs, executors, and administrators, doth hereby covenant and agree with the said commissioners that they, the said Adam Myers and Mary Myers, and their heirs, etc., the said lot or parcel of land, with its appurtenances, to them, the said commissioners, against them, the said Adam Myers and Mary Myers and their heirs, and against all persons whomsoever, shall warrant and defend. In witness whereof the said Adam Myers and Mary Myers have hereunto set their hands and fixed their seals, the day and year above written.

"Adam Myers. [Seal.]

[Seal.]

"William Marteny. [Seal.]

[Seal.]

"Signed, sealed, and delivered in presence of ___."

--Which deed appears to have been duly recorded in said county. The plaintiff also alleges that this contract was faithfully performed and carried out by the then county court and its successors in office, and said lot was delivered to the public as a public square or common, and from the 25th day of November, 1813, until some time in 1890, a period of over three-fourths of a century, said dedication of said piece of ground for a public square or common was universally recognized, and said ground was permitted to remain uninclosed, without buildings, and was constantly used by the public officers of said county as a place of sales, and by said Myers, his vendees, and the public generally as a public square or common, and was universally recognized, accepted and used by the public as such. The plaintiff further says that if the said county court did have an unqualified fee simple in said ground, by the said contract with the said Myers, and by its clear acts of dedication aforesaid, it lost the same, and such fee-simple title, so far as in contradiction of said dedication and its right to hold said property as trustee for the use and benefit of the public aforesaid, and lost all right and power to sell and dispose of said property to private individuals to be used for private purposes. But the plaintiff charges that the defendant, the county court, determined to erect a new courthouse upon an entirely different lot or piece of ground in the town of Beverly, purchased for that purpose, and afterwards determined, in direct violation of the rights of the public, and of the heirs of said Myers, and in the face of the long-continued use by dedication and acceptance of said public square or common, to...