Woods, Jud&e •.
The appellant assigns three several grounds of error in the said decree. “First — That the court erred in dissolving-said injunction at the same term at which the answer was filed, under the special circumstances surrounding this case. Second — In overruling its motion for a continuance, and forcing the plaintiff to a hearing at the same term at which the answer was filed. Third — In dismissing the bill at the time of dissolving the injunction, as section 18 of chapter 138 of the Code gave the plaintiff until the last day of the term to show cause against the' dismissing of the bill.” As there is nothing in the transcript of the record of this cause to show when the said term of the circuit court ended, it does not appear that the said bill was dismissed before the last day of the term. .
The counsel for the appellee insist that, the injunction was rightly dissolved, notwithstanding the answer had been just filed, because a plaintiff obtaining an injunction is required to be always ready to support the allegations of the bill by sufficient proof to show a prima facia right to the relief prayed for; and if he fail to do this, and all the material alie-[217]*217gations of the bill entitling him to sncli relief, are “fully, fairly, plainly, “ distinctly and positively” denied by the answer, the injunction will be dissolved. Hazlett v. McMillan, &c., 11 W. Va. 424; High on Injunc., § 205; Hilliard on Injunc., § 37, ch. 3. In the case under consideration, the allegations of the bill were so full, precise and explicit, that if they were proved as alleged, or admitted to be true, or were confessed by the defendant, the plaintiff was clearly entitled to the full and exact measure of relief prayed for, and that was, a perpetual injunction to prevent the defendant from talcing lrom the plaintiff his private property for public use, until the same was lawfully condemned, and the compensation to which he was entitled paid or secured to be paid in the manner prescribed b}^ law. This bill was taken for confessed at August rules, 1876, and stood on the docket ready for final hearing against the defendant, which did not appear until October 16, 1876, vdien it appeared and demurred, and although the plaintiff promptly joined in said demurrer, it let the matter rest for eighteen months, and with the bill standing taken for confessed against it, without offering to file any answer, moved the court to dissolve the injunction. The demurrer and motion to dissolve were both overruled and the court apparently of its own motion required the defendant to answer against the first day of the next term. If the plaintiff had been at all disposed to take advantage of the defendant it might at the next term very properly have pressed the case to a final hearing with every allegation of the bill taken for confessed. The defendant failed to answer at the time ordered by the court, and was in contempt of the court from April 5,1878, to April 15, 1879, when it filed its'answer, aud again moved to dissolve the injunction. To this answer a general replication was filed, which cast upon the defendant the burden of proving the truth of every affirmative allegation contained in its answer. Hp to the filing of the answer the plaintiff’s bill was sufficiently proved, it was taken for confessed. The plaiutiff’s bill alleged a clear legal title to the land in question, both by setting out the manner in which and the persons from whom it had acquired title, aud accompanied the allegations of the bill with copies of various deeds through [218]*218and under which it claimed title, which appear in the transcript of the record; it alleged the plaintiffs present actual possession of said land at the time of filing the bill, and of the character and value of the improvements thereon and the purposes for which they were then used. It alleged the wrongful acts of the defendant, and filed as exhibits with it, certified copies of the order adopted by the “council” of the defendant ordering its town sergeant to open said streets and alleys, and also of the notice served on the plaintiff ordering the same to be done. But even if the plaintiff had had no valid paper title to said land, yet by his bill he alleges, such a state of facts, as by lapse of time, vested in him a clear legal title, even as against the former rightful owner of the land, for it alleges that it, and those through and whom it claims, had held open, notorious, continuous, adversary possession of said land for a period of more than ten years, claiming title thereto and exercising acts of ownership over it, and this possession, was by actual substantial enclosures during all that period, of the identical parcels of land to which said defendant pretended to claim title. If this be true, it had a clear and indefeasible title in fee simple to said land, acquired by such continuous, open, notorious and adverse holding under color or claim of title — City of Wheeling v. Campbell, 12 W. Va. 36.
But is the answer filed in this case, such, as entitles the defendant, long in default at the time of filing it, to either insist upon a dissolution of the injunction, or the dismission of the bill? It will be observed that nearly all the allegations of the answer, are in regard to affirmative matters, all of which by the general replication are denied, and in support of which no proof of any kind is offered. Upon well settled principles of pleading such allegations not proved present no grounds of defence against the plaintiff’s hill. In contemplation of law it is the same as if they had not been alleged.
The answer in general terms denies that plaintiff'is seized in fee simple of the lands claimed by it, but does not deny that the plaintiff claims title through the several conveyances ■filed with the hill, or that they 'do not include the land claimed by the plaintiff, or that the deeds do not pass the title to said lands, or that the said several grantors did not [219]*219in fact execute and deliver said conveyances to said several grantees, or pretend to show that said deeds convey or reserve to the defendant said “Wide” alley and alley “D.” It does not deny that the plaintiff' is in the actual possession of the land claiming to be the exclusive owner thereof, or that the land has been so enclosed and occupied for a period of ton 3rears as alleged in the bill, but the denial of the alleged facts, vesting the plaintiff with good title acquired by adverse posesession of the land is so evasively made, that if hard pressed by the plaintiff’s proofs, the defendant might almost say, it did not intend to explicitly, fully, clearly and positively deny the same; for it only alleges that “it denies that Front street, Anderson street, alley £D’ and ‘"Wide’ alley have been enclosed by a good and substantial fence built by the parties under whom the plaintiff claims its title for more than ten years past (before the filing of the bill); and denies that the dwelling-house and other buildings mentioned in the bill, were built on ‘"Wide’ alley and Front street more than nine years last past before the filing of the bill.” .Those allegations are pretended to be full and explicit denials of the material allegations of the bill alleging facts showing perfect title in the plaintiff. If the land was in fact enclosed, held and claimed by the 'plaintiff adversely for a period of ten years before suit brought, that allegation cannot beheld tobe “ explictly, fully, positively and clearly” denied by an allegation in the answer, which denies that it was so enclosed by a good and substantial .fence, built by the parties
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Woods, Jud&e •.
The appellant assigns three several grounds of error in the said decree. “First — That the court erred in dissolving-said injunction at the same term at which the answer was filed, under the special circumstances surrounding this case. Second — In overruling its motion for a continuance, and forcing the plaintiff to a hearing at the same term at which the answer was filed. Third — In dismissing the bill at the time of dissolving the injunction, as section 18 of chapter 138 of the Code gave the plaintiff until the last day of the term to show cause against the' dismissing of the bill.” As there is nothing in the transcript of the record of this cause to show when the said term of the circuit court ended, it does not appear that the said bill was dismissed before the last day of the term. .
The counsel for the appellee insist that, the injunction was rightly dissolved, notwithstanding the answer had been just filed, because a plaintiff obtaining an injunction is required to be always ready to support the allegations of the bill by sufficient proof to show a prima facia right to the relief prayed for; and if he fail to do this, and all the material alie-[217]*217gations of the bill entitling him to sncli relief, are “fully, fairly, plainly, “ distinctly and positively” denied by the answer, the injunction will be dissolved. Hazlett v. McMillan, &c., 11 W. Va. 424; High on Injunc., § 205; Hilliard on Injunc., § 37, ch. 3. In the case under consideration, the allegations of the bill were so full, precise and explicit, that if they were proved as alleged, or admitted to be true, or were confessed by the defendant, the plaintiff was clearly entitled to the full and exact measure of relief prayed for, and that was, a perpetual injunction to prevent the defendant from talcing lrom the plaintiff his private property for public use, until the same was lawfully condemned, and the compensation to which he was entitled paid or secured to be paid in the manner prescribed b}^ law. This bill was taken for confessed at August rules, 1876, and stood on the docket ready for final hearing against the defendant, which did not appear until October 16, 1876, vdien it appeared and demurred, and although the plaintiff promptly joined in said demurrer, it let the matter rest for eighteen months, and with the bill standing taken for confessed against it, without offering to file any answer, moved the court to dissolve the injunction. The demurrer and motion to dissolve were both overruled and the court apparently of its own motion required the defendant to answer against the first day of the next term. If the plaintiff had been at all disposed to take advantage of the defendant it might at the next term very properly have pressed the case to a final hearing with every allegation of the bill taken for confessed. The defendant failed to answer at the time ordered by the court, and was in contempt of the court from April 5,1878, to April 15, 1879, when it filed its'answer, aud again moved to dissolve the injunction. To this answer a general replication was filed, which cast upon the defendant the burden of proving the truth of every affirmative allegation contained in its answer. Hp to the filing of the answer the plaintiff’s bill was sufficiently proved, it was taken for confessed. The plaiutiff’s bill alleged a clear legal title to the land in question, both by setting out the manner in which and the persons from whom it had acquired title, aud accompanied the allegations of the bill with copies of various deeds through [218]*218and under which it claimed title, which appear in the transcript of the record; it alleged the plaintiffs present actual possession of said land at the time of filing the bill, and of the character and value of the improvements thereon and the purposes for which they were then used. It alleged the wrongful acts of the defendant, and filed as exhibits with it, certified copies of the order adopted by the “council” of the defendant ordering its town sergeant to open said streets and alleys, and also of the notice served on the plaintiff ordering the same to be done. But even if the plaintiff had had no valid paper title to said land, yet by his bill he alleges, such a state of facts, as by lapse of time, vested in him a clear legal title, even as against the former rightful owner of the land, for it alleges that it, and those through and whom it claims, had held open, notorious, continuous, adversary possession of said land for a period of more than ten years, claiming title thereto and exercising acts of ownership over it, and this possession, was by actual substantial enclosures during all that period, of the identical parcels of land to which said defendant pretended to claim title. If this be true, it had a clear and indefeasible title in fee simple to said land, acquired by such continuous, open, notorious and adverse holding under color or claim of title — City of Wheeling v. Campbell, 12 W. Va. 36.
But is the answer filed in this case, such, as entitles the defendant, long in default at the time of filing it, to either insist upon a dissolution of the injunction, or the dismission of the bill? It will be observed that nearly all the allegations of the answer, are in regard to affirmative matters, all of which by the general replication are denied, and in support of which no proof of any kind is offered. Upon well settled principles of pleading such allegations not proved present no grounds of defence against the plaintiff’s hill. In contemplation of law it is the same as if they had not been alleged.
The answer in general terms denies that plaintiff'is seized in fee simple of the lands claimed by it, but does not deny that the plaintiff claims title through the several conveyances ■filed with the hill, or that they 'do not include the land claimed by the plaintiff, or that the deeds do not pass the title to said lands, or that the said several grantors did not [219]*219in fact execute and deliver said conveyances to said several grantees, or pretend to show that said deeds convey or reserve to the defendant said “Wide” alley and alley “D.” It does not deny that the plaintiff' is in the actual possession of the land claiming to be the exclusive owner thereof, or that the land has been so enclosed and occupied for a period of ton 3rears as alleged in the bill, but the denial of the alleged facts, vesting the plaintiff with good title acquired by adverse posesession of the land is so evasively made, that if hard pressed by the plaintiff’s proofs, the defendant might almost say, it did not intend to explicitly, fully, clearly and positively deny the same; for it only alleges that “it denies that Front street, Anderson street, alley £D’ and ‘"Wide’ alley have been enclosed by a good and substantial fence built by the parties under whom the plaintiff claims its title for more than ten years past (before the filing of the bill); and denies that the dwelling-house and other buildings mentioned in the bill, were built on ‘"Wide’ alley and Front street more than nine years last past before the filing of the bill.” .Those allegations are pretended to be full and explicit denials of the material allegations of the bill alleging facts showing perfect title in the plaintiff. If the land was in fact enclosed, held and claimed by the 'plaintiff adversely for a period of ten years before suit brought, that allegation cannot beheld tobe “ explictly, fully, positively and clearly” denied by an allegation in the answer, which denies that it was so enclosed by a good and substantial .fence, built by the parties under whom the plaintiff claims title; for if enclosed by any body, oven by the plaintiff itself by any actual enclosure, however poor or unsubstantial, if being actually enclosed, and so held by the plaintiff for as much as ten years, it will be sufficient, and hence the defendant’s denial, that it had not been so enclosed and held for more than ten years, is not necessarily a denial that it had been so held for as much as ten years. The same remarks apply with equal force to the pretended deuial that the buildings had been erected and used for more than nine years — such denials might be literally true, and yet not a denial of the substantial, suggestive material fact, that they had been so erected and used for as much as nine years before suit brought.
[220]*220Tho plaintiff lias by its bill shown that, it has good title to tho land in question; that the injury threatened and- attempted by the defendant is the actual appropriation of the land itself for the public use, against its cousent and without condemnation or compensation. The defendant does not deny the attempted taking alleged, nor the destruction of the plaintiff’s enclosure with tho intent to convert the plaintiff’s private property to the use of the public against his consent without compensation. The plaintiff stands upon the high ground of its constitutional rights, saying to the defendant, this land is my “private property, and it cannot be taken or damaged for public use without just compensation.” Const, art. 3 § 8. The answer of the defendant shows no right possessed by it, to deprive him of this property, nor does’its answer, “fully, fairly, plainly, distinctly and positively” deny the allegations of the plaintiff’s bill on which the preliminary injunction was granted, an d therefore the defendant upon the filing of such answer, was not entitled to a dissolution of the injunction, and much less, to a dismission of the plaintiff’s bill. Hazlet v. McMillan, supra. Wo are therefore of opinion, that the decree of the circuit court of Mason count}' rendered in this cause on the 22d day of April, 1879, is erroneous. It is also insisted in argument on behalf of the appellee that the said circuit court erred in overruling its said demurrer, “because the plaintiff had not shown itself entitled to any equitable relief against the defendant.” The bill is unobjectionable; there is no uncertainty or ambiguity in any of its allegations. For the wrong complained of the plaintiff" had no adequate remedy at law. Actions of trespass brought against the persons passing over,- or using said streets and alleys, after the defendant had taken the same for such public use, would have been almost infinite in number, and practically endless and ruinous to the plaintiff. Such a case as this, is one peculiarly appropriate for the interposition of a court of chancery, which only is capable of affording adequate relief. This Court has settled this question, and it is no longer open to controversy. Pierpoint v. The Town of Harrisville, 9 W. Va. 215 and cases cited by Judge Green pp. 218, 219; Anderson v. Harcey's Heirs, 10 Gratt. 389; and McMillen v. Ferrell, 7 W. Va. 223.
[221]*221Tlie circuit court therefore did uot err in overruling the defendant’s said demurrer.
The general rule, from the conclusions reached in this opinion, would require this Court to enter a decree perpetuating the plaintiffs injunction, but as it appears from the record that the defendant may have a good defence to the plaintiff’s bill, and that the plaintiff neither in the circuit court nor in this Court asked for a decree perpetuating its injunction, but only asked for a continuance of the cause thereby admitting that the burden of proof was upon it, and may have thereby misled the defendant in the circuit court and in this Court, we think it proper and more likely to attain the ends of justice, under the special circumstances in the cause, to reverse the decree and remand the cause to the circuit court for further proceedings therein to be had according to the principles settled in this opinion, and further according to the principles and rules in courts of equity; and that the appellee do pay to the appellant its costs by it, about the prosecution of its appeal and supersedeas in this Court expended.
ReveRsed. Remanded. .