Town of Paden City v. Felton, CC767

• Decision Date: 03 August 1951
• Docket Number: No. CC767,CC767
• Citation: 66 S.E.2d 280,136 W.Va. 127
• Court: West Virginia Supreme Court
• Parties: TOWN OF PADEN CITY, v. FELTON.

Page 280

66 S.E.2d 280

136 W.Va. 127

TOWN OF PADEN CITY, v. FELTON.

No. CC767.

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1951.

Decided June 22, 1951.

Dissenting Opinion Aug. 3, 1951.

Syllabus by the Court.

1. To establish an easement by prescription there must be continued and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use.

2. An owner of private property consisting of numerous lots in a subdivision in which avenues, streets, alleys and lots are shown by a recorded plat, which subdivision is subsequently included within a municipality, is not deemed in law to have dedicated to public use an easement in a drainage ditch located on and over one or more of such avenues, streets, alleys, and lots, which ditch is used in common by the owner of such lots, by his successor or successors in title, and by the municipal corporation, unless the intention of such owner to dedicate such ditch for public use is deliberately, unequivocally and decisively manifested by his deed or his conduct, and unless acceptance, express or implied, of such ditch by the municipality is indicated by unequivocal acts or conduct by which it assumes to regulate or control the use of such ditch.

James W. Pyles, Paden City, for plaintiff.

I. M. Underwood, Middlebourne, for defendant.

HAYMOND, Judge.

This suit in equity was instituted in the Circuit Court of Wetzel County by the plaintiff, Town of Paden City, a municipal corporation, to enjoin the defendant, Iva May Felton, from interfering with the flow of water in a drainage ditch which extends through an unimproved lot of land owned by her designated as Lot No. 3 fronting on Boston Street which adjoins Lot No. 4, also owned and occupied by her as her residence, in the Town of Paden City, and to abate an alleged nuisance which has resulted from her acts in obstructing the ditch. The circuit court sustained the demurrer of the defendant and, on joint motion of the parties, certified its ruling to this Court.

The grounds of demurrer embodied in the certificate of the circuit court are:

(1) Though the plaintiff claims the right of drainage through the lot of the defendant, the bill of complaint contains no allegation that there is any deed or other written instrument which creates the easement which the plaintiff claims to own.

(2) The right of drainage, claimed by the plaintiff, is within the Statute of Frauds and the bill of complaint does not allege that such right is based upon any memorandum in writing signed by the party sought to be charged, or his agent, which confers upon the plaintiff the right which it claims.

(3) The bill of complaint contains no allegations of fact which establish any right or easement by prescription to drain water on or through the land of the defendant.

(4) The bill of complaint fails to allege any acts of the defendant which constitute a nuisance.

The bill of complaint alleges the following material facts which upon demurrer are taken as true.

Prior to and during the year 1903 Paden Valley Company, a corporation, was the owner of a large tract of land, within which is now located the central portion of the Town of Paden City. In 1903, it laid out and subdivided its land, or a considerable portion of it, into lots, avenues, streets and alleys which were indicated on a map or plan which was recorded in the office of the Clerk of the County Court of Wetzel County on September 22, 1903. A copy of this map is filed as an exhibit with the bill of complaint. After the map was placed of record the Paden Valley Company proceeded from time to time to sell lots and parcels of land owned by it to various purchasers and such sales were made with reference to the recorded map. About the year 1917 the Paden City Land Company, from which the defendant obtained title to Lot No. 3, now owned by her, succeeded to the ownership of the land originally owned by Paden Valley Company except the portions which it had previously sold and conveyed to different purchasers; and apparently the Paden City Land Company, at the time of the institution of this suit in 1949, continued to own a portion of the land originally owned and subdivided by its predecessor in title, Paden Valley Company.

In January, 1917, the Town of Paden City was incorporated as a municipal corporation under the general law of this State and in February, 1929, a special charter was granted to it by an Act of the Legislature of that year. Acts of the Legislature, 1929, Regular Session, Municipal Charters, Chapter 5. The land as originally owned and subdivided by Paden Valley Company and the territory which now comprises the Town of Paden City, are generally located between the Ohio River on the west and an elevation known as Ohio River Hill on the east. The northerly portion of the town is located in Wetzel County and the southerly portion extends into Tyler County, in this State. According to the map of the subdivision, the avenues, of which there are eight, and are practically parallel with each other, run generally northeast and southwest and the streets, a number of which intersect the various avenues at right angles, run generally northwest and southeast. Main Street, sixty feet in width, is located near the center of the town and extends generally in a northwesterly direction from Seventh Avenue to the Ohio River. Boston Street, forty feet in width, on the northeasterly side of which the lot of the defendant abuts, is located approximately 800 feet northeast of and parallel to Main Street, and extends northwest from Seventh Avenue to Fourth Avenue.

The surface of the section between Fourth Avenue on the northwest, Boston Street on the northeast, Seventh Avenue on the southeast and Main Street on the southwest, through which area Fifth Avenue passes from Main Street to Boston Street, is lower in elevation than the surface of the territory north and east of Boston Street and north and east of Seventh Avenue. When the subdivision was opened in 1903, the natural course of the drainage of the surface, in the area north and east of Boston Street and Sixth Avenue, was such that the water from seasonal rains and melting snows ran or flowed generally into the level space between Fourth Avenue and Fifth Avenue and at times accumulated and remained in a lower portion of that area near the intersection of Fifth Avenue and Main Street and created a marsh at that point. In order to drain the surface water and to change the direction of its natural flow in that section, Paden Valley Company, the owner of the subdivision, constructed a drainage ditch which began at or near the southeastern corner of Fifth Avenue and Main Street and extended in a northeasterly direction to a natural watercourse in a ravine known as Van Camp Hollow, a distance of approximately 1,700 feet northeast of the beginning point of the ditch. The ditch as so constructed extends in an almost direct line along the southeasterly side of Fifth Avenue, across Boston Street, through Lot No. 3, now owned by the defendant, across Maple Alley, through Lot No. 44 or Lot No. 45, abutting on Wetzel Street, across Wetzel Street, through Lot No. 2 or Lot No. 3, abutting on Beach Alley, across Beach Alley, through Lot No. 44 or Lot No. 45, abutting on Work Street, across Work Street, through Lot No. 2 or Lot No. 3 to Walnut Alley, across Walnut Alley and along an unnamed alley at right angles to Walnut Alley to Miller Street, across Miller Street and through a block of eleven lots north of Miller Street to Van Camp Hollow where it connects with a natural watercourse which runs northwest and empties into the Ohio River. Wetzel Street, Work Street and Miller Street, which the ditch crosses, are parallel with and are located northeast of Boston Street in the order just stated. The slope of the ditch is described as 'slight' and its depth is not more than an inch or two inches where it begins at Main Street and Fifth Avenue, but it descends, apparently on a gradual incline, until it is from two feet to four feet in depth as it passes through Lot No. 3 of the defendant. The width of the ditch is also described as 'slight' at the beginning point but it increases until it reaches from four feet to six feet as it extends through the same lot. The map, a copy of which is exhibited with the bill of complaint, was made and recorded before the ditch was constructed, and does not, of course, show or indicate in any way the existence of the ditch or its location at any point; and the deed from the Paden City Land Company, to the defendant for Lot No. 3, made in 1946, long after the ditch was constructed, contains no reference to it. The deed, however, expressly excepts and reserves the right to the grantor, its successors or assigns, to construct, maintain, and operate water pipes, gas pipes, and telephone, telegraph or electric light poles upon all the streets and alleys in the plan as laid out by the Paden Valley Company.

For more than ten years before 1946 the defendant has lived in a house located on Lot No. 4 on Boston Street which was conveyed to her by the Paden City Land Company, by deed dated July 18, 1935, which is duly recorded in the office of the Clerk of the County Court of Wetzel County. During the time she has resided on Lot No. 4 the ditch across Boston Street and through Lot No. 3 was continuously and uninterruptedly open and was used to drain surface water from Fifth Avenue and other properties in the town and, as so located and used, it is within twenty five feet of the dwelling house of the defendant which was erected on Lot No. 4 prior to 1917. Some time after 1942 the defendant entered into a contract with the Paden City Land Company to purchase Lot No. 3, and, at that time, and for more than ten years...