Town Of Weston v. Ralston

• Court: Supreme Court of West Virginia
• Writing for the Court: McWHORTER
• Citation: 48 W.Va. 170,36 S.E. 446
• Parties: TOWN OF WESTON. v. RALSTON.
• Decision Date: 12 June 1900

48 W.Va. 170
36 S.E. 446

TOWN OF WESTON.
v.
RALSTON.

Supreme Court of Appeals of West Virginia.

June 12, 1900.

CANCELLATION OP DEED—CLOUD ON TITLE— PUBLIC EASEMENT.

1. The supreme court of appeals having determined that a certain strip of land, adjacent to a property owner's lot, was part of a public highway, and subject to the public easement therein, and directed a mandatory injunction to place the public in possession of such easement to be awarded by the circuit court, and such court refusing to award the same, and such property owner, in total disregard and in contempt of such adjudication, proceeding to purchase other pretended titles to such strip of land, for the purpose of beclouding the public easement therein and further litigating the same, a court of equity will cancel such deeds in so far as they operate as a cloud upon the public easement, and will perpetually enjoin the further litigation of the public's right, as an effort to maintain and continue in force a public nuisance in derogation of the sovereignty of the people of the state.

2. When a public easement has once been lawfully established over land for a public highway, either by dedication to the use of the general public by individuals, and acceptance by the proper authorities, or by the exercise of the right of eminent domain, such easement is good against any and all titles.

(Syllabus by the Court.)

Appeal from circuit court, Lewis county; W. G. Bennett, Judge.

Bill by the town of Weston against Er. Ralston. From an order dissolving an injunction restraining defendant from further litigating the title to certain real estate, complainant appeals. Reversed.

Edward A. Brannon, for appellant.

W. W. Brannon, for appellee.

McWHORTER, P. The town of Weston, by its mayor and common council, undertook, by means of its authority, to remove from Water street (one of the public streets of said town) certain obstructions maintained thereon by Er. Ralston, who enjoined in the circuit court the action of said town authorities, upon the hearing of which the circuit court perpetuated the injunction, when the defendant appealed to the supreme court, and upon the case there being heard the decree of the circuit court was reversed, the court finding that plaintiff was maintaining a public nuisance, subject to abatement either by the municipal authorities, under their statutory powers, or by an appeal to a court of equity; and said cause was "remanded to the circuit court, with direction that plaintiff's injunction be dissolved, and a mandatory injunction be awarded the defendant, at the plaintiff's costs, directing the plaintiff to abate the nuisance

[36 S.E. 447]

maintained by him thereon, and that the strip of ground in controversy be restored to Water street, and made subject to the public easement therein." The case is reported in 46 W. Va. 544, 33 S. E. 326. The circuit court not only failed and refused to award the mandatory injunction directing the plaintiff to abate the nuisance maintained by him on said street, as required by said decree, but, on the other hand, when the municipal authorities undertook to abate the nuisance the said circuit court entertained an action by said plaintiff of trespass on the case for damages against said town for removing the obstructions from said street, and also another action by him against said town of unlawful entry and detainer for the possession of said strip of ground upon which plaintiff had maintained the said nuisance, and which strip was by the decree of the supreme court ascertained to be a part of the said Water street; said plaintiff having, after the decree of the supreme court aforesaid, obtained two deeds conveying said strip of ground, —one from W. B. McGary, special commissioner in the case of George C. Cole, trustee of James P. Cole, and others, dated May 15, 1899, and the other from James P. Cole, dated May 13, 1809, —and under which plaintiff claimed that he had a right and title to said strip of land, and to the possession thereof, notwithstanding said decision adverse to his rights as they existed when the case was heard, and also adverse to any and every title and claim of any and every person whomsoever. The town of Weston filed its bill in equity in the said circuit court, praying that said Ralston be perpetually enjoined from prosecuting said actions of trespass on the case and unlawful entry and detainer, and compelled to dismiss the same, and that a decree be entered setting aside the deeds from W. B. McGary, special commissioner, and James P. Cole, to said Er. Ralston, and declaring said deeds null and void as against the rights of the town to the strip thereby conveyed as a part of its said Water street, and for general relief. The defendant, Ralston, answered the said bill; setting up title to said strip of ground, and claiming that he was not holding under the Flesher title, so as to estop him from his present claim, as alleged in the bill, but that since the decision of the supreme court he had acquired what he was advised was a perfect and indefeasible title to said strip of land; averring that in July, 1889, the town of Weston instituted a suit in equity against James P. Cole, M. S. Holt, and others, one of the chief objects of which was to cancel and annul a deed dated April 10, 1889, from M. S. Holt to James P. Cole, whereby said Holt conveyed to Cole a tract of land, running as described, so as to include the strip of ground, and, indeed, all of Water street from First street to Fourth street. Said bill sought to enjoin the building of a large livery stable by the said Cole on what the plaintiff, the town of Weston, contended was ground which had been dedicated to the use of the town for a street; claiming that "all the land known and used as Water street, and embraced by said deeds, was * * * included in a grant from the commonwealth of Virginia to —— Flesher, and that said grant was made while an act passed by the general assembly of the commonwealth of Virginia was in full force and effect, which act provides that all unappropriated lands on the bay of the Chesapeake, on the sea shore, or on the shores of any river or creek, and the bed of any river or creek in the commonwealth, which remained ungranted by the former government, and which has been used as a common to all the good people thereof, shall be, and the same are hereby, excepted out of this act, and no grant issued by the register of the land office for the same either in consequence of any survey already made, or which may hereafter be made, shall be valid or effectual in law, to pass any estate or interest therein." And plaintiff averred that the greater portion of the land conveyed by the deeds is the shore of the West Fork river; that it remained ungranted by the former grant, and that shore was used as a common to all the good people of the commonwealth; and that said shores were by the provisions of the said act excepted and excluded from the said grant to the said Flesher, and were passed thereby to him or any other person. And plaintiff therefore claimed that by virtue of the dedication by Flesher of the street on the bank, and the exception and exclusion of the shore by said act, all the land lying between the lots which extended towards the river from their front on Main street, 150 feet, and the river, constituted Water street, and had been for more than 40 years known, treated, held, used, and occupied as Water street; that said James P. Cole had commenced to deposit material, such as stone and lumber, on Water street, along between lot No. 12 (which ran from Main street back towards the river 150 feet) and the river, as represented by the plat of the town just above the bridge, and near Second street and the Staunton and Parkers-burg turnpike; and that he had commenced to dig and excavate for the foundation of a large building, to be used as a livery stable, etc. James P. Cole answered the bill, denying the most of the material allegations of the bill, and that he had deposited material and excavated on Water street, and says: "Moreover, the defendant, in excavating as aforesaid and depositing material, left a space between the river and a point 150 feet from Main street, of 40 feet, to allow the said town of Weston, should it see proper to do so, to open, construct, and keep in repair a street as provided in the deed from Woffindin and McBride to O. H. P. Washburn, and is still willing to allow such street to be maintained." And after denying that his livery stable, as he proposed to build and maintain it, would

[36 S.E. 448]

be a nuisance, he says "that it is not the habit of defendant to allow manure or other filth to accumulate about his stable, but as fast as it is accumulated it will be conveyed to the extreme end of said stable, 150 feet from Second street, and nearly 200 feet from Main street, on the river bank, when it will be hauled away as fast as a wagon load accumulates. * * * This defendant alleges that the said stable will be so constructed as to keep his horses in the basement thereof, and, by its close proximity to the river, all surplus filth, if there be any, can easily be drained off. There is to be a rock wall on the upper side of said basement, next to the proposed Water street, and a water-tight floor over the same, " etc. Upon the hearing the injunction was dissolved, the bill dismissed, and the building was erected on the west line of Water street, 40 feet from the back line of the lots fronting on Main street A copy of Cole's said answer was filed with plaintiff's bill in the case at bar. When the cause of Ralston v. Town of Weston was reversed by this court, the plaintiff, Ralston, procured a stay of execution of the decree on the 5th of May, 1899, for the period of 90 days, for the alleged purpose of taking an appeal therefrom to the supreme court of the United States; but instead of executing the bond required, and taking the proper steps to obtain his appeal, he...