Taylor v. Philippe
| Decision Date | 14 November 1891 |
| Court | West Virginia Supreme Court |
| Parties | Taylor v. Philippe |
W., being' the owner of the land, surveyed, laid out and platted the same into lots, streets and alleys, as and for a town, made a map thereof, and sold the lots with reference to said map, and as designated and numbered thereon; such map being afterwards duly admitted to record, and the town as laid out being established and named by act of the legislature. Held, such acts and conduct on the part of such owner constitute prima facie evidence of the intent on his part to dedicate such streets to public use.
An acceptance of such dedication must be by the proper local authorities, but may be implied as well as express; such as the recognition or naming of it as a street of the town by ordinance of the town-council, or by any actual appropriation of the property for the use designed.
One who claims to own and hold a definite part of such street must prove an adversary possession thereof for ten years, the period prescribed by the law of this State; such adversary possession being made up of all the essential elements.
A case in which, these principles being applied, it is held that the street in question had been dedicated and accepted, and the adverse claimant had failed to make good his adverse claim.
Dayton & Dayton and M. Peck for appellants, cited 8 Pac. Rep. 392; 33 W. Va 507; 24 Gratt, 149; 32 W. Ya. 6; 27 N. W. Rep. 159; 81 Cal. 70; 16 At. Rep. 631; 20 Pac. Rep. 817; 9 W. Ya. 215; 15 W. Ya. 394; 52 Hun 206; 30 W. Ya. 606; 12 S. W. Rep. 462; 11 Pac. Rep. 746; 13 Pac. Rep. 141 ill X. E. Rep. 484; 23 W. Va. 211; 72 Tex. 422.
W. T. Ice for appellee, cited 2 Dill Mum Corp. (2d Ed.) § 640 and note, §§ 630, 631, 636; 30 W. Va. 617; 9 W. Ya. 215; 15 W. Ya. 399; 4 Am. St, Rep. 599; Acts of Ya, (1843-4) p. 99; 29 Gratt, 781; Id. 794; 1 Dill Mum, Corp. § 457; 29 Gratt, 534; 5 Am. St. Pep. 830; 12 W. Va. 69; 84 Ya. 337; 2 Dill. Mun. Corp. § 528.
This was a suit in equity, brought on the 15th day of February, 1890, in the Circuit Court of Barbour county, by A. L. and B. F. Taylor, plaintiffs below, against the town of Philippi, to enjoin and restrain the town from opening a part of the street called u Church Street." The injunction was granted in vacation, perfected by bond given, the bill was filed, defendant answered, plaintiffs replied generally, and the depositions of various witnesses were taken. The cause came on to be heard on June 2, 1890, on defendant's motion to dissolve the injunction; and the court, being of the opinion that the case was for defendant dissolved the injunction and dismissed the bill; and plaintiffs have brought the case here on appeal. It involves the question of the right to what is claimed by the town to be a part of one of its streets.
A street is a road or way over land set apart for public use and travel in a city, town or village; and, as the way is common and free to all the people, it is a highway. See Elliott, Roads & S., 12; also, Bouv. Law Diet.
If there had been no dedication of this street to the public, or if from continued adversary possession or other cause it had become the property of defendant, the injunction was proper to restrain the town from opening the street; for damages in a suit at law would have been inadequate, and the injury would in this case have been irreparable. Boughner v. Town of Clarksburg, 15 W. Va 394; Pierpoint v. Town of Harrisville, 9 W. Va 215; Mining Co. v. Town of Mason, 23 W. Va. 211.
Where "there has been no public use of a street, the owner may dedicate his land to the public, for such, by acts and declarations without a deed; but where the town claims that the street has been by the acts and declarations of the owner dedicated to the public for that purpose, such acts and declarations must be deliberate and decisive, manifesting a positive and unmistakable intention to perm a- nently abandon his property for that specific public use. Miller v. Aracow.a, 30 W. Ya. 606 (5 S. E. Rep. 148); Pierpoint v. Town of Harrisville, 9 W. Ya. 215.
The acceptance of such dedication must be by the proper local authorities, but may be implied as well as express, as indicated by any actual appropriation of the property for the use designed. Cass Co. v. Banks, 44 Mich. 467 (7 N. W. Rep. 49). But if the plaintiffs have held such part of the street in actual possession, in such a way and for such a length of time as would bar the better right in an action of ejectment, their title to the land is good, to maintain a suit as well as to defend; for the statute of limitations in the absence of an express provision to the contrary runs against a municipal corporation the same as against a natural person. City of Wheeling v. Campbell, 12 W. Ya. 36. And now, by express provision, it runs also against the State. Section 20, chapter 35, Code. These are in the main the legal doctrines involved in the case.
The legislature of Virginia, by act of 3d of March, 1843, created the county of Barbour out of the counties of Harrison, Lewis and Randolph, fixing the seat of justice " on the eastern side of Valley river at or near the ferry of Thomas M. Hite on the farm now occupied by Wm. E. Wilson." Acts of Assembly Va, 1842-43, p. 37. Afterwards, in the same year (1843) William F. Wilson, then the owner of the land mentioned in the act, surveyed, laid out, platted and numbered and designated on a map certain lots, streets and alleys, and by this plan or map sold to various purchasers various lots, and among them the two lots mentioned in the bill, Nos. 72 and 73, and by deed dated January 21, 1850, conveyed these two lots to Moses M. Hoff, describing them as two certain lots of land in the town of Philippi, known as the lots Nos. 72 and 73, as designated in the plan of said town. On this plan the street in controversy now known as " Church Street " wras laid down as extending between lot 73 and 74; the latter now called the " Surghner Lot." The General Assembly of Virginia, by act passed February 14, 1814, established the land thus laid off into lots, streets, and alleys as a town by the name of " Philippi," appointing trustees, providing for its government, and its further extension into lots, streets, and alleys. Act of Assembly Va. 1843-44, p. 99.
At some time it does not appear in this case when this map was admitted to record in the clerk's office of the County Court of Barbour county in the Miscellaneous Order Book No. 1, p. 44, and on July 11, 1873, was recorded in such office in Deed Book No. 6, p. 594. The original map is produced as evidence in this cause, and proved by a son of the original owner, who also helped to lay off the lots and streets, who further proves that at the time the town was laid off, and the lots sold as numbered and designated on this map, Church street, running up the hill from High, and separating lot 73 from lot 74, was left open by William F. Wilson, his father, for the use of the town, as well as the rest of the street from Main street to High street. Town ordinance No. 9, in evidence, but without any date of enactment, among other things says:
"The street running from Main street by way of the M. E. Church to High street shall be called and known as 'Church street, ' * * * All other streets, alleys, and ways not herein mentioned, their location, alternations, and changes shall be and remain until otherwise changed as the same now are, as described and shown by the plats of Philippi, of record in the clerk's office of the County Court of Barbour county in Miscellaneous Order Book No. 1, p. 44, and in Deed Book No. 6, p. 594, and the orders, resolutions, and ordinances of Philippi heretofore passed, and of record in manuscript in the journal of the common council."
The town council, by order made in 1871, permitted one James A. Grant to build a fence across that part of Church street. Grant was owner of the two lots from 1858 to 1873, and obtained permission of the town council to close Church street between lots 73 and 74; stock was turned into this street or alley, and he obtained such permission to prevent trespass on his lots without building a fence along lot 73; but at no time did he own, or claim to own, the street lying between lots 73 and 74; and, while he was owner of the two lots, never used or exercised any ownership over that portion of Church street except by permis- sion of the corporate authorities of the town of Philippi; and that when he sold the land to Isaac V. Johnson he never sold or attempted to pass to Mr. Johnson any claim or title to that portion of Church street. I. II. Strickler had conveyed these two lots to Grant by deed dated April 13, 1872, and Grant had conveyed them to I. Y. Johnson by deed dated September 8, 1873. Johnson conveyed them to W. W. Corder by deed dated July 4, 1876. Corder conveyed them to Joseph A. Roe by deed dated August 1, 1876. Roe conveyed them to Spencer Glasscock by deed dated 23d September, 1876. Spencer Glasscock conveyed them to J. L. Glasscock, trustee, by deed the date of which does not appear. Glasscock, trustee, and others sold the same to Judge Samuel Woods on 12th of April, 1882, who owned them, and by his successive tenants, George P. Sargent, Wills, and Lewis Simons, had them in possession down to the 4th of April, 1887, when, through his agent and son, Samuel V. Woods, he sold them to plaintiffs, and put them in possession. This contract of sale describes them as "the house and two lots of ground on High street, in the town of Philippi, which was conveyed by Jacob L. Glasscock, trustee, to Samuel Woods, by deed dujy recorded in Barbour county."
Isaac Y. Johnson, a former owner of these two lots, knows them well. He knows the handwriti ng of William F. Wilson proves the original map, and Church street as there laid down,...
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