Talbott v. King

• Decision Date: 29 January 1889
• Citation: 9 S.E. 48,32 W.Va. 6
• Parties: TALBOTT v. KING.
• Court: West Virginia Supreme Court

9 S.E. 48

32 W.Va. 6

TALBOTT v. KING.

Supreme Court of Appeals of West Virginia.

January 29, 1889

Submitted January 19, 1889.

Syllabus by the Court.

1. An individual cannot enjoin a public nuisance, such as the obstruction of a road, unless it works special and peculiar injury to him, and that injury must not be trivial, or such as may be compensated in damages, but must be serious, affecting the substance and value of the plaintiff's estate. The first point of syllabus in Bridge Co. v. Summers, 13 W.Va. 476, reaffirmed.

2. Mere user of a road will not make it a public road, under section 31, c. 43, Code 1887. The user must be accompanied either by an order of the county court recognizing it in some way as a road, or the road must be worked by a surveyor as such. Dedication by the land-owner, though accompanied by public user, will not make it a public road, unless the dedication be accepted by either the county court in its order book, or by a surveyor's working it.

Appeal from circuit court, Barbour county; WILLIAM T. ICE, Judge.

Bill in equity by Robert R. Talbott against John King, to enjoin the obstruction of a road through defendant's land. The temporary injunction was perpetuated on the hearing, and defendant appeals.

John Bassel and Dayton & Dayton, for appellant.

Sam. V Woods, for appellee.

BRANNON J.

Robert R. Talbott presented to the judge of the Third circuit his bill, stating that he resided in road precinct 5, in Barbour county, on what is known as the "Belington Road," a main thoroughfare for all that section of densely populated country between Valley river, at Belington, and the Staunton and Parkersburg turnpike, for a distance of many miles; that in said precinct is a public road called the "Davitt Road," running through lands of defendant, John King Owen Davitt, and Timothy Caveny, from a point on said Belington road near the Talbott church to a point where the same intersects a road known as the "River Road," and thence to its intersection with another road known as the "Roaring Creek Road;" that plaintiff had erected at great expense and keeps in constant operation, at a farm near said Belington road, a large and valuable steam saw and grist mill, the only mill accessible to a large number of people living along said Belington road, and the only one for all the people living on the Davitt road; that very many of the patrons of plaintiff's mill have no other means of reaching it except by the Davitt road, unless by a distant circuitous and inconvenient route, many miles out of their way; that near said mill are a store, post-office, school-house, cattle scales, and blacksmith shop, which are inaccessible to many of said people except by said Davitt road, in which store and scales plaintiff is part owner; and that, as many customers of said store are in the habit of making one trip to store, post-office, and mill with the same conveyance, if they are deprived of said road for the purpose of reaching the store, post-office, and church, they cannot reach the mill, and will not patronize plaintiff; and that King had fenced, obstructed, and destroyed said road, and refused to permit persons to pass over it to said mill and store, whereby their customers were turned away, their business and profits diminished, and irreparable damage done to the plaintiff; and praying an injunction to restrain King from obstructing the road, which was granted. The defendant demurred and answered, and in his answer denied all the material allegations of the bill specifically. The answer states that for some years, while the lands in its course were uncleared, and before the establishment of other roads afterwards in the answer mentioned, some people in the Roaring creek country made a path through the woods near the line of the alleged Davitt road, which path was changed as the lands were cleared; that it was never established by law or otherwise, never worked by a surveyor, and never by the public regarded as a public road, and was in places almost impassable; and that its establishment would ruin his farm. Said answer further alleges that the county court, recognizing the fact that said path was no public road, established a public road substantially parallel with, and at some points not more than forty-five rods distant from, said path, and entering said Belington road, whereby any customers could reach said mill by traveling less than three-quarters of a mile further from the section which the bill alleged would be inconvenienced, and whose custom would be lost by shutting said pathway. The answer denied all special damage to the mill. No replication was made to this answer, but both parties took depositions of numerous witnesses. The cause was heard on bill, demurrer, answer, and depositions, the injunction was perpetuated, and King appeals.

The first question to be decided is whether the plaintiff can maintain his bill for a public nuisance. In Bridge Co. v Summers, 13 W.Va. 484, GREEN, P., says: "A court of equity ought not to interfere by injunction to prevent a public nuisance when the party asking its aid shows no private injury actually sustained or justly apprehended by him. The obstruction to a public highway, to justify the interposition of a court of equity, must be more than a mere public nuisance,--it must work a special injury to the plaintiff; and such injury must not be trivial, and such as may be fully compensated in an action at law. But if the right of the public to the use of a highway is clear, and a special injury is threatened by an obstruction of the highway, and this special injury is serious, reaching the very substance and value of the plaintiff's estate, and is permanent in character, a court of equity by an injunction ought to prevent such a nuisance." This must be regarded a fair exposition of the law. We do not see that the plaintiff's case fills its measure. We cannot here follow the voluminous evidence in detail. It seems that this road is of minor importance, by no means largely contributing to the support of the plaintiff's mill and store, and that by means of another established road, known as the "Stalnaker Road," referred to in the answer and described in the proof, all the persons, except two or three, (perhaps we should say one,) can reach them by going 208 rods further, over perhaps a better road, and those two or three may, through their own lands, have access thereto. The loss of custom from stopping this road must be very small and trivial, by no means serious, or reaching the substance or value of plaintiff's property, as it must do, under the rule above laid down. In the case cited from 13 W. Va., the road obstructed was the approach of a toll-bridge on one end, being of vital importance to it, and its obstruction would thus sap its life. Not sohere. This road was not the only road leading to store and mill, indeed, not leading directly itself to the mill, but entering the Belington road at some distance from the mill, and only contributing to its business in a degree, and those traveling on it could with equal ease, practically, reach the Belington road by the Stalnaker...