Teas's v. City Of St. Albans
| Decision Date | 22 March 1893 |
| Parties | Teas's v. City of St. Albans, et al. |
| Court | West Virginia Supreme Court |
Actual possession of land is prima facie evidence of ownership in fee, and such owner is prima facie entitled to such possession. (1>. 22.)
A municipal corporation can not by its mere declaration, that a dwelling house is a nuisance, subject it to removal, (p. 19.)
It must first resort to some proper judicial proceeding, giving' the owner or occupant' an opportunity to be heard, before his house is condemned and removed as a nuisance, (p. 22.)
In determining the boundaries of lands ascertained objects, natural landmarks and reputed boundaries control mere course and distance. (p. 12.)
Disputed boundaries between adjoining lands may be settled by express oral agreement, executed immediately and accompanied by possession according to such agreement. (p. 16.)
0. Limitations of Actions Municipal Corporations.
In this State the statute of limitations, in the absence of an express provision to the contrary, runs against a municipal corporation. (p. 14.) 7. A case in which these principles are discussed and applied.
WaktH & Briggs and Brown, Jackson & Knight for appellant:
I. Where there has been no dedication of street, or it has becomethe property of the citizen by adversary possession, injunction to restrain town from opening the street is proper. 15 W. Va. 894; 9 W. Va. 215; 23 W. Va. 211.
II. Where there has been no public use of a street, and, townclaims dedication, the acts and declarations of owner must clearly manifest an unmistakable intention to permanently abandon his property for thai purpose. 30 W. Va. 606; 9 W. Va. 215.
III. The acceptance of dedication must be by the proper authorjties. 44 Mich. 467; 7 N. W. Hep. 49.
IV. If citizen has held part of a street so long as to bar the belter right in ejectment, his title is good to maintain as well as to defend a suit. 24 Gratt 149; 12 W. Va. 36; 14 S. E. Rep. 130.
V. Injunction will lie to restrain town from opening street
against owner's consent until condemnation. 23 W. Va. 211.
VI. When town attempts to open street claiming dedication, burden of alleging and proving same is on the town, 23 W. Va. 211.
VII. An answer with general replication throws upon defendant burden, of proving every affirmative allegation contained in it. 23 W. Va. 217.
VIII. General Rule requires the Court to perpetuate the injunction. 23 W. Va. 221.
IX. Where no objection was taken to the bill on the motion to dissolve, it will be considered sufficient. 23 W. Va 220.
X. The doctrine of estoppel in pais applies. 2 DilI. Man.
Corp. (4th Ed.) 804.
XI. In deciding boundaries of lots ancient reputation and "possession entitled, to more respect than an experimental survey. 8 Rand. 44.
XII. Course and distance yield to natural and ascertained objects. 2 Lom. Dig. (4th Ed.) 211 (s. p.); 1 Greenl. Ev. (2d. Ed.) 897, 898 (n. 2.); 1 Call 438; 8 Call 339; 4 H. &M. 125; 60 Am. Dec. 726; Id. 274; 77 Am. Dec. 769; 87 Am. Dec. 111; 88 Am. Dec. 696; 8 Am. Dec. 722; 3 W. Va. 148; 32 W. Va. 487.
XIII. Disputed boundary may be settled by parol agreement, if executed immediately accompanied with possession. 32 W. Va. 487; 12 Wend. 127.
XIV. Jury may infer such settlement from acquiescence for a less period than is necessary to constitute adverse possession, and also from acts and declarations of the parties. 64 Mo. 218; 13 Am. Dec. 660; 25 Am. Dec. 452; 67 Am. Dec. 612; 26 Am. Dec, 240; 1 Am. Rep. 298.
XIV. An undisputed corresponding line is competent to settle the line in. dispute. 21 N. II. 440.
W, E. Chilton and O. Johnson for appellee:
I. The city had authority to remove obstructions from its streets without resorting to ejectment. Code c. 47, s. 28; 12 W.
Va. 36; 27 W. Va. 681.
II. To constitute a possession, which will bar the title to the legal owner of land, it must be adverse, actual, visible and exclusive, continuous and under a claim or colour of title. 24 W. Va. 238; 35 W. Va. 578.
III. If there is any doubt whether or no there teas such adverse possession, decree appealed from must be affirmed, 27 WVa. 639; 28 W. Va. 715; 31 W. Va. 137.
IV. Can not maintain ejectment. 33 Mich, 109; 1 Brev. 130; 1 Blackf. 88.
This was an injunction brought in the Circuit Court of Kanawha county by plaintiff, Teass, against the city of St. Albans, to restrain defendant from moving back or tearing down plaintiff's dwelling-house, claimed by the city to he built about four feet into and on one of its streets. The ex parte injunction was grunted 24th February, 1892, and on final hearing on April 30, 1892, the injunction was dissolved, and this appeal was granted plaintiff'.
The allegations of plaintiff's bill are, in substance, as follows:
Plaintiff, T. A. Teass, is the owner of a lot on the corner of A. street and Smith street, in the city of St. Albans, fronting on A street seventy seven feet, on which is a valuable dwelling-house, built in 1880 or 1881, more than ten years before the institution of this suit; and plaintiff and those under whom he claims have had continuous adverse possession of the dwelling-house and lot for more than ten years, claiming the same as their own under the various deeds and title papers mentioned. The dwelling-house and the'lot on which the same is situate, as now fenced and used, are not in part on A street and in no wise obstruct the public use. of the street in question. The council of the city of St. Albans, under its charter, has no legal right to enter upon his premises, and take or remove his dwelling-house or fences, without first having the same condemned pursuant to the statute: And, although the city council claims that plaintiff and other owners of the lots are occupying parts of the street, they can only recover the same by proper legal proceedings, when their claim is not admitted but denied by plaintiff and the other owners' of the lots.
Plaintiff then charges that the city council have ordered defendant Ed. Wilson, the street-commissioner, to enter upon his premises to remove his fences and his dwellinghouse from its present location under the pretended claim that the same are occupying a part of A street of said city; that the street-commissioner claiming to be acting under the orders of the council did with a number of men in the employ of the city enter upon plaintiff's premises on the 23d day of February, 1892, without his consent, pulled down his fence on A street, and is now claiming the right, and declaring the intent, to proceed.to execute the order of the city council, and remove his dwelling-house from its present position under the pretended claim that it is partly in A street; that such actings and doings are unlawful; that the injury to him would be irreparable, and not compensable in damages.
The prayer is that the city of St. Albans, the council thereof, the street-commissioner, Wilson, who are made parties defendant, and all agents and employes of the city, be enjoined and restrained from removing plaintiffs dwelling-house, or otherwise interfering in any manner with his said property or any part thereof, situate on said A street, until the further order of the court, and for general relief.
On February 24, 1892, the Circuit, Court judge in vacation awarded the injunction prayed for until further order on bond, as required, being given. The bond was given, and summons issued to answer the bill. In term time on April 6, 1892, the defendants appeared by counsel and moved the court to dissolve the injunction; and, it appearing that plaintiff had due notice of the motion, it was set down to be heard on April 8, 1892. The defendants at the same time filed their demurrer to the bill and also their joint and several answer; and the demurrer was set down for argument, and plaintiff" replied generally to the answer.
The answer is, in substance, as follows: That the lot of land on A street claimed by plairtiff had long ago been forfeited to the state; that it was forfeited in the name of
MeDermott, and in the name of Allen M. Smith's
heirs, two parties under whom plaintiff claimed, and through whom he derived his supposed title, and that, by reason of such forfeiture, neither Eggleston, plaintiff s immediate vendor, nor plaintiff himself, obtained or had any title. Defendants next gave the history of plaintiff's title as being a part of the A. M. Smith lands, at St. Albans; that in the suit of Hyman, Moses & Co. v. A. M. Smith and others, E. B. Knight, Esq., was appointed a commissioner to sell the Smith lands, and among them a lot bounded on the east by B street, in St. Albans; on the south, by Main street, which is the old James river and Kanawha turnpike, as the same runs through the city of St. Albans; that, acting under the decree of sale, one P. B. Reynolds, an engineer, at the instance of Knight, commissioner, to sell, laid off the Smith block into streets, alleys, and lots; that Knight, as commissioner, sold the lots as thus laid off, and shown on map made and filed as an exhibit Map 1.; that Commissioner Knight sold the subdivided parts of the Smith land here in controversy to one Johnson, Johnson sold to McDermott, McDermott to U. S. Eggleston, and Eggleston to plaintiff; that A street bounding these lots on the west, was laid off by Engineer Reynolds, and that Knight sold these lo's, including the one in question, according to the Reynolds map, and dedicated to the public and to the city the said A street, which was soon after accepted by the city of St. Albans, and has ever since been occupied, used and improved by the city as and for a public street and highway for public travel in the city; that said lots are numbered 21, 22, and 28 on street A, making seventy seven feet, and are called for and described in the deeds of Special Commissioner Knight as lots laid down...
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