Town op Weston v. Ealston.
| Decision Date | 12 June 1900 |
| Citation | 48 W.Va. 170 |
| Parties | Town op Weston v. Ealston. |
| Court | West Virginia Supreme Court |
The supreme court of appeals having determined that a certain strip of land adjacent to a property owners 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 lar 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, (pp. 175, 176).
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, (p. 175).
Appeal from Circuit Court, Lewis County. Bill by the Town of Weston against Er. Ralston. Decree for plaintitf. Defendant appeals.
Affirmed.
Edward A. Brannon, for appellant. W. W. Brannox, for appellee. McWhorter, Judge:
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 Cour:, and upon the case there being heard the decree of the circuit c ourt 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 maintained by him thereon, and that the strip of ground in controversy be restored to Water Street, and made subject to he 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 couit 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 Geo. C. Cole, trustee of James P. Cole and others, dated May 15, 1899, the other from James P. Cole, dated May 13, 1899, 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 bills setting up title to said strip of ground, claiming that he was not holding under the Fiesher 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 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 amend 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, claming 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-Fiesher, 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 nngranted by tin.' 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 issuel by the register of the and office for the same either in consequence of any survey already made, or which may hereafter be made, shall he 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 in the shore of the West Fork river, that it remained u igranted by the former grant, and that shore was used as a com: non 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 Fiesher, and were passed thereby to him or any other person, and plaintiff therefore claimed that by virtue of the dedication by Fiesher 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 tie river from their front on Main street one hundred and fifty feet, and the river constituted Water street and had been for more than forty 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 () and the river, as represented by the plat of the town just above the bridge and near Second street and the Staunton and Parkersburg turnpike, and that he had commenced to dig and excavate for the foundation of a large building to be used as a livery stabe, &c. 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 Waver street, and says, "Moreover, the defendant, in excavating as aforesaid, and. depositing material left a space between the river and a point one hundred and fifty feet from Main street, of forty feet to allow the saidtnvnof 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 0. 71. P. Washburn and is still willing to allow such street to be maintained." Aid after denying that his livery stable, as he proposed to build and maintain it, would he a nuisance, says "that it is not the habit of defendant to allow manure or other filth to accumulate about bis stable, but as fast as it is accumulated it will be conveyed to the extreme end of said stable, one hundred and fifty feet from Second street and nearly two hundred 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/' &c. Upon the hearing the injunction was dissolved, the bill dismissed, and the building was erected on the west line of Water street forty feet from the back line of tna lots fronting on Main street. A copy of Cole's said answrer was filed with plaintiff's bill in case at bar. When tne cause of Ralston v. The 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 ninety days for the alleged purpose of taking an appeal therefrom to the Supreme Conrt of the United States, but instead of executing the bond required and taking the proper steps to obtain his appeal, he immediately set to work to place himself in position, if possible, to avoid the effect and force of...
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