Yates v. AVest Grafton.
| Decision Date | 03 March 1890 |
| Citation | 33 W.Va. 507 |
| Court | West Virginia Supreme Court |
| Parties | Yates v. AVest Grafton. |
The provision of our Code, that when any road is altered, the former road shall be discontinued to the extent of such alteration, and no further, and the new one established, gives to the order of the County Court establishing an alteration of an existing road the effect of discontinuing, as a public highway, so much of the original road as may be excluded from the new route, without any further or separate order to that effect.
In order to re-establish this lawfully discontinued portion of the old or original road, the alteration must be set aside, or there must be a new statutory establishment or a new dedication by the owner, and recognition or acceptance by the County Court, in the manner provided by law.
Although notice is recpuired to be posted as directed in section 30, chapter 43 of the Code, before a road, or any portion thereof, can be lawfully discontinued, yet after the final order discontinuing has been acquiesced in for a period of eighteen years, the omission of such notice will be regarded as waived.
Under section 31 of chapter 43 of the Amended Code, which is the same as section 31 of chapter 14 of the Acts of 1881, when the owner permits the use of his land as a public road, street or alley for a long time, such user will not now be presumed to be a mere license, but a dedication; and the acceptance of the county or city or incorporated town need not be proved by matter of record, but may be presumed from acts of recognition, acceptance and claim.
Injunction is a proper remedy to restrain a town from opening a street through a person's land without first condemning it according to law, where there has been no dedication of such street to public use.
M. H. Dent for appellant. J. H. Holt for appellee. Lucas, Judge.
The plaintiff instituted a suit in chancery against the town of West Grafton, and certain gentlemen named in the bill as the municipal officers of said town, in June, 1889, praying an injunction to restrain the town authorities from taking certain land of the plaintiff or any portion thereof, for a public highway or street, until the same had been purchased or condemned in the manner provided by law, and also that the damages suffered by the plaintiff, by reason of the unlawful acts of the defendant as charged in the bill, should be determined and decreed to the plaintiff, and for general relief. Injunction was granted as prayed for in the bill.
The joint and several answer of the defendants was filed promptly. In this, they did not dispute the title of the plaintiff to the land, over which the alleged highway or street had been constructed, but claimed and averred that so long ago as the year 1845, the County Court of Taylor County established a county-road, a portion of which ran across the nine and three quarters acres of the plaintiff, and that said section of road so located, and established upon and across the said nine and three quarters acres of land claimed by the said complainant, has never been discontinued or annulled by any order of the County Court, but on the contrary said road has been used ever since its establishment as a public road and maintained and worked as such by the road commissioners in that precinct in said county, up to and until the time of the incorporation of the respondent town in the year 1874, when it passed under its jurisdiction and control.
They alleged that since the incorporation of the town, it had maintained said road as a public street.
They are at a loss, they aver, to understand upon what pretext the complainant charges that tie town is a trespasser, unless it be a false and improper construction of an order of the board of supervisors of Taylor County, made in the year 1870, changing a portion of said road, of which, this said street is a part, but which change was not intended to change and does in no wise change that portion of said road running across the said nine and three quarters acres of land, as your respondents are informed and believe.
There is exhibited with the bill both the original order of the County Court, dated May 26th, 1845, establishing the old road, and the order of the supervisor of August 3rd, 1870, whereby it was ordered "that so much of said report (of the viewers) as locates a change in the road from the northwest corner of the fair-ground to a point on the old Webster road, near the U., S. Cemetery, through the lands of James Yates's heirs, be established, '' and that the roadsurveyors be required to open, work and keep in repair said road etc.
It is admitted that the change established by this order was from the original route, now in dispute, to the new or substituted route, which has recently been sold by the town to the Baltimore and Ohio Railroad Company, for $250.00.
But to break the force of the facts thus established, the answer avers that: said road, having been established by the County Court of said county and maintained by said county authorities, as a public road and occupied and used as such up to and until it came under the jurisdiction and control of the respondent town, and since that time it has been kept and maintained, and used and occupied as a public street by saiel town, it is now, and at the time of the filing of said bill was, a public street and under the control and jurisdiction of said respondent town, and its officers, and that it was not necessary or reasonable that said street should be purchased or condemned, before the said town authorities could go upon and repair the same.
The respondents maintain, therefore, that said street was, when the bill was filed, a public highway, wholly within their jurisdiction and control, and that they were only putting it in a proper condition for the use of the public when they were served with the order of injunction.
A great deal of testimony was taken in support of the averment of the answer that the original or old road," established in 1845, had never been abandoned, or, by any proper authority, closed against public travel. An equal, or perhaps greater, amount was taken by the complainant, tending to show that such use by the public was only permissive, the adjoining lands lying out in a common, un enclosed; and that in 1882, when he inclosed his adjacent lands, he fenced in the old road.
On the 6th day of July, 1889, at a special term, the Circuit Court heard the cause upon the proceedings, and pleadings, and the depositions and documentary evidence, and dissolved the injunction and dismissed the bill at the costs of the plaintiff.
If the action of the Circuit Court involved the consideration of the weight and effect of the conflicting parol testimony only, we should hesitate to reverse its judgment, although we might think that had the case been presented to this Court in the first instance, we might have reached a conclusion different from that announced by the lower court. This would be in accordance with the rule heretofore enunciated by this Court in Smithv. Yoke, 27 W. Va. 689, Doonan v. Glynn, c, 28 Id. 715, and other cases.
But in this case, there is documentary evidence involving the application and construction of a statute, which we think changed the burden of proof, and ought to have led to a different conclusion from that reached by the Circuit Court.
It is an admitted fact that in 1870 the board of supervisors, under a proceeding instituted by themselves, established a change in the line of the road, whereby the line as now claimed was altered, and the new and much shorter route adopted.
Such an order, one would suppose, ex vi termini meant an abandonment of the old location. But we are not left to conjecture on this subject, since the law then and still in force provides:" When any road is altered, the former road shall be discontinued to the extent of such alteration, and no further, and, the new one established," Code 1868, Chap.. 43, sec. 32, p. 273.
There can be no doubt, therefore, that the order of the County Court establishing an alteration in the road, as it then existed, did, by virtue of the statute, establish the new route, and discontinue the old. This being true, the question arises whether the old road has ever been in any legitimate manner re-opened, or re-dedicated to the public. The burden of proof in such an issue would be upon the county, or, since 1874, when the town was incorporated, upon the town.
The modes in which such re-dedication or re-establishment might have taken place are several. The county or town might by proper proceeding, as authorized by statute, have re-opened it. This, it is conceded, was not done. The owner by deed might have dedicated it to the public. This however is not claimed; on the contrary, when partition came to be made of the land of the heirs of James A. Yates, through which this old road passed, no reference or allowance was made for any such public road. The owner might have dedicated the road by acts or declarations. Upon this subject, the Court of Appeals of New York thus lays down the law: ...
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