Taylor v. Commonwealth

• Decision Date: 19 December 1878
• Citation: 70 Va. 780
• Court: Virginia Supreme Court
• Parties: TAYLOR & als. v. THE COMMONWEALTH.

70 Va. 780

TAYLOR & als. v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 19, 1878

1. The defendants in an indictment for a nuisance by obstructing a street, were the joint owners of a house and a lot of two acres, fronting 264 feet on Porter street, in Manchester. The house was ancient, and had been held by the defendants and those under whom they claimed for more than sixty years according to its present enclosures. The city council of Manchester holding that the said enclosures were in Porter street, directed that they should be removed, and the defendants obtained an injunction to prevent it; and this suit was pending in the same court. When the indictment was called for trial, the defendants moved that the case should be continued until the injunction suit was decided--HELD: The indictment was the appropriate remedy in such a case; and the continuance was properly refused.

2. The report of a case in a printed volume of reports of decisions of the court of appeals of Virginia, the original record of the case having been destroyed, held admissible in evidence to show that such a map as that mentioned in the report, as Watkins' map, actually existed and was in the papers in said cause; and thereby to lay a foundation for the introduction, as further evidence in the cause, of a map purporting to be and certified as a map of Manchester by the clerk of the superior court of chancery of the Richmond district.

3. Copies of two maps attached to two deeds for lots in Manchester, recorded in the clerk's office of Chesterfield county, one deed dated August 10th, 1816, and the other January 3d, 1847, held to be admissible for the purpose of ascertaining the scale and verifying the map of Manchester certified by the clerk of the superior court of chancery for the Richmond district, which had been previously admitted as evidence; but for this purpose only.

4. S Taylor, under whom the defendants claimed the house and lot was a member of the council of Manchester in 1855--HELD: That certain proceedings of the council at that time when he was present, in regard to what is called the Percival survey of the said town, were admissible evidence for the purpose of showing said S. Taylor's connection with said survey.

5. William Byrd having laid off the land comprised within certain limits of the town of Manchester, into lots and streets, and made a map of the town so laid off, showing the lots and streets, and having sold lots with reference to said map, all the streets designated on said map were thereby irrevocably dedicated to the public; and the public have a right to have the streets, as designated on that map throughout their entire length and width, thrown open forever, and kept free from any and all encroachments or obstructions.

6. The act of the house of burgesses, passed November, 1769, establishing the town of Manchester as laid off into lots and streets, was an acceptance on the part of the colony of Virginia of the streets thus dedicated to the public.

7. The streets of the city of Manchester having been dedicated to the public by William Byrd, when he laid off the town, and this dedication having been accepted by the act of the house of burgesses in November, 1769, the streets are public highways; and any occupation of a street, or a part of a street, by the owner of an adjoining lot, however long continued, cannot give such occupant a right to hold it, or bar the right of the public to the use of the street to its full width and extent.

This was an indictment in the hustings court of the city of Manchester, against William G. Taylor and nine others, for a nuisance in obstructing Porter street in the city of Manchester. There was an issue on the plea of " not guilty; " and on the trial of the case the jury found a verdict against the defendants, and assessed the damages against each of them at one dollar; and the court rendered a judgment in accordance with the verdict, and for an abatement of the nuisance. The defendants thereupon applied to one of the judges of this court for a writ of error; which was awarded. The case and all the questions made in it are fully stated in the opinion of Moncure, P.

W. W. Gordon, for the appellant.

Attorney-General R. T. Daniel and Logan & Bransford, for the Commonwealth.

OPINION

MONCURE, P.

This is a writ of error to a judgment of the hustings court of the city of Manchester, rendered on the 20th day of October, 1876, convicting the plaintiffs in error on an indictment found against them in the said court, charging them with a nuisance in erecting and continuing an obstruction of an ancient and common highway and public street in the said city of Manchester. There was a plea of not guilty in the case, on which issue was joined, which was tried by a jury. A verdict of guilty was found against the accused, and a fine of one dollar each was assessed against them. Judgment was rendered accordingly, and for the abatement of the nuisance. To this judgment the plaintiffs in error applied to a judge of this court for a writ of error, which was accordingly awarded. Sundry errors in the said judgment are assigned in the petition for the said writ, founded on sundry bills of exception, which were taken by the said plaintiffs in error in the course of the proceedings in the said case, which bills of exception and assignment of error thereon we will notice in their order:

1. The first bill of exceptions stated, that upon the calling of the cause the defendants moved for a continuance of the same upon the ground that an injunction was awarded on the 25th day of July, 1876, to restrain the city of Manchester from removing or in any manner interferring with the property which is charged in the indictment as being an obstruction to the public highway; and in support of said motion the defendants offered in evidence the record in the said injunction suit now pending in the hustings court of said city, which record is set out in the said bill of exceptions. In the injunction bill the complainants claim to be the joint owners in fee of a house and lot in the town of Manchester, fronting on Porter street 264 feet, which lot embraces nearly two acres of land. The house situated on said lot is an old family homestead, which was the birthplace and residence, during his life, of Samuel Taylor, through whom the complainants claim title. They say that they and those through whom they claim have been in the actual possession of the said property, certainly, for about seventy years--probably not less than a century; that the common council of the town, acting through A. L. Johnston, its city engineer, and other agents, are now threatening to enter upon the aforesaid premises, take possession and destroy the front yard and a part of the garden, and pull down the front enclosure and part of the dwelling-house, or at least the greater part of the front portico, under the pretence of widening or opening Porter street in the said town, and that in carrying this purpose into effect the value of the homestead will be materially lessened, if not absolutely destroyed, and irreparable damage done to the freehold. They therefore pray for an injunction, which was awarded as aforesaid. Which motion for a continuance the court overruled, and the defendants excepted to the action of the court in that respect. That such was the action of the court is the first assignment of error in this case.

We are of opinion that the court did not err in overruling the said motion for a continuance. A street of a city is a public highway, the obstruction of which is an indictable offence. On the trial of an indictment for such an offence, the questions, whether the locus in quo be a public highway, and whether the same be obstructed by the accused in the manner charged in the indictment, are questions of law and fact which properly arise for decision. And such trial cannot of right be delayed by reason of the pendency of a civil suit, such as is the chancery suit in the first bill of exceptions mentioned. There might be peculiar circumstances sufficient to induce and warrant the court, in which a prosecution for such an offence is pending, to delay the trial of the prosecution for a reasonable time on account of the pendency of a civil suit involving the same questions involved in the criminal prosecution; but it does not appear that such circumstances existed in this case; and if in any case this court would reverse the judgment of an inferior court for refusing a continuance in such a case, certainly the reasons for doing so ought to be very strong. Indictment is the appropriate remedy for a nuisance in a public highway, and generally, if not always, the questions involved in a charge of such an offence can be decided in that way, at least, as well as, if not better, than in any other. In a suit inter partes, such as is the injunction suit aforesaid, the decision might be upon grounds which ought not to affect the public at large in their right to the use of the highway.

2. The second bill of exceptions states " that upon the trial of the cause, The Commonwealth offered to introduce in evidence the report of the case of Mayo v. Murchie, as contained in the third volume of Munford's Virginia Reports from page 358 to 417, (it having been admitted by the defendant's counsel that the original record above referred to was destroyed by fire at the close of the late war), the counsel for The Commonwealth stating that the purpose of introducing this evidence was to show that such a map as that mentioned in the case above referred to as Watkins' map, actually existed, and was in the papers of the above cause; and thereby to lay a foundation for the introduction, as further evidence in this cause, of a map...