Miller v. Town of Aracoma

5 S.E. 148, 30 W. Va. 606, 1888 W. Va. LEXIS 5

• Court: West Virginia Supreme Court
• Decided: January 28, 1888
• Status: Published

Opinion

Woods, Judge:

It is evident from an inspection of the record that the defendant, the town of Aracoma, although regularly served with process, never appeared to or answered the bill, and therefore the same, as to it, has, in legal effect, been taken for confessed. J. R. Perry, the mayor of the said “ town,” is not a defendant in the cause, and therefore he had no' right to appear and answer the bill, and the fact that he did so can not have the effect to make him a party to the cause, nor can his answer be taken as the answer of said corporation, which is always required to be made under its corporate seal. Bank v. Canal Co., 1 Paige 311; Railroad Co. v. City of Wheeling, 13 Grat. 40; 2 Story Eq. Jur., § 874. The corporation is not in any manner barred by such answer, and therefore what Perry is pleased to admit or deny can not change the legal status of the town of Aracoma, against which the bill stands taken for confessed. The denials in his answer can not have the effect to put the plaintiff upon proof of the allegations of his bill, nor can its admissions relieve him from the necessity of proving them, where, without such admissions, it would be incumbent on him to do so. This answer ought never to have been filed, and, if the plaintiff had objected to the filing thereof, it would doubtless have been rejected; or, if the objection had been afterwards made, it would have been stricken out of the cause. But from the view we have taken of the matter, the plaintiff has not been injured, for the bill as to the town of Aracoma stands as taken for confessed; and the court did not err to the prejudice of the plaintiff, in hearing the cause on this answer in connection with the other matters mentioned in the decree. Dingess, having an interest in common with all the inhabitants of the town of Aracoma, and also a special interest peculiar to himself in opening the alley in controversy, if if ever in fact existed and has been unlawfully fenced up, was properly a defendant in the suit. The real question involved in this controversy is whether any public alley between the lots claimed by the plaintiff and the defendant Dingess existed at the time the plaintiff’s vendor, Ellis, purchased lots Nos. 25 and 26 ; and, if so, whether the same was ever granted or dedicated by Floyd to the town of Aracoma; and, if any such alley was so granted or dedicated, is the same within the inclosure of the plaintiff, claimed by him as his exclusive property; and, if so, has the town now such valid claim thereto as will authorize it to open the alley to the public use, without first making or securing to the plaintiff compensation therefor. It is not pretended that such alley, if it ever existed, was granted or dedicated to any corporate body or public use other than to the town of Aracoma, or that such town had any corporate existence until March, 1884. The bill, in contemplation of law, having been taken for confessed against the “town,” all of its allegations as to it are admitted to be true. The answer of Dingess admits that Lawson lived upon the land owned by the plaintiff, and had the same partially enclosed before he sold the same to Floyd; that Floyd, having made a plat of the addition to the village of Logan Court-House, called the new plan the “Town of Aracoma,” on which were laid off lots Nos. 25 and 26, with a 12-foot alley between them, which lots and alley he, on the 9th of February, 1871, bargained and sold to Simpson Ellis, who immediately took actual possession thereof, and so held them until he sold them to the plaintiff on the 12th of June, 1880, and that the fences made by Ellis were made by him when he went into |>ossession of said lots, but avers that the plaintiff has moved his fences from where they were built by Ellis, and has thus enclosed a large quantity of land at both ends and along the sides of his inclosure and. his fence running from Dingess street to the river. The answer of Dingess wholly fails to deny the allegation of the bill “ that no dedication of such alley was ever made, either by grant, or by public use, and that no alley has ever been claimed or used by the public at large, either within the iuclosure of the plaintiff or between his inclosure-and the lot now owned by Dingess;” nor does it deny the allegation “ that the plaintiff and his vendor, Ellis, under and by virtue of Ms purchase from Floyd on the 9th day of February, 1871, have been in the quiet and peaceable possession of the ground over which Dingess claims said alley,' — claiming title to each and every portion of the premises inclosed by the plaintiff’s fence, as aforesaid.” Failing to deny these material allegations of the bill, they are admitted to be true. Section 36, ch. 125, Code. Dingess acquired his title to the lot claimed by him on the 8th day of February, 1885, precisely 14 years after Ellis acquired his title to the lots owned by the plaintiff. Three days afterwards the town-council having ascertained by a committee that the alley was inclosed by the plaintiff’s fence, by an ordinance made on the 11th February, 1885, required the plaintiff to open the alley on or before the third of March, 1885, and ordered its superintendent of roads, streets and alleys to open the same on that day. This injunction was obtained, bill hied, and process issued on the 24th February, 1885. All the defendants’depositions were taken on the 20th of March, 1885, and all the depositions of the plaintiff were taken on the 30th of the same month. The answer of Dingess, and the general replication thereto, were filed in court at the April term, 1885. The cause on both sides was then ready for hearing, and no testimony was ever afterwards taken. At that time Dingess was alive, and Floyd still lives; and the fact is a little remarkable that neither of them was examined as a witness, while it is apparent that, if the pretensions of the defendants were well founded, all the facts in supirort of them must have been well known to Floyd, who was the common vendor of all the claimants, and therefore must have had.peculiar opportunities of knowing whether the alley claimed by the defendants ever had any existence either on the plat, or on the ground, and also whether the same had been used as such by the public. It is admitted by the pleadings that the plaintiff had good and perfect title to the land in controversy, and that this title dated back to 9th February, 1871.

Was there ever any alley between the piaintiff’s lot (25 no w) 24, and lot 23, now claimed by Dingess? And, if so, was this alley ever dedicated to the public ? It is not pretended that such alley was ever made or dedicated by the plaintiff or his vendor, Ellis. It follows, therefore, that if it was ever so made or dedicated, it must have been done before the 9th of February, 1871, since which time the land over which it is supposed to run has been in the actual possession of the plaintiff and his vendor, claiming title thereto under said purchase from Floyd.

We will first consider whether, at the time Ellis purchased from Floyd the lots now owned by the plaintiff, there was an alley between the lots now numbered 23 and 24. It is an admitted fact that before-the sale to Ellis, Floyd had laid off upon a map certain lots, with streets and alleys designated thereon ; that on this map, at the time of the sale to Ellis, were two lots numbered respectively No. 25 and No. 26, and that there was an alley 12 feet wide between them; whether there were at that time any other alleys designated on that map, does not appear. This map was present at the time Floyd sold the lots to Ellis, for in the title-bond then executed these lots are described as “ a certain lot or parcel of land lying on the east side of Guyandotte river, in Logan county, West Ya., and laid down on a map nowin the hands of Floyd, embracing the entire two lots, and the alley between them, No. 25 & No. 26, and this day marked by Wm. Stratton, on said plat, "A and B, sold to Simpson Ellis.’ ” If this map, so marked by Stratton, had been filed in the cause, and considered at the hearing; or if it had been proved by Floyd, Stratton, or any other credible witness, that the one tiled by the defendants as Exhibit A, and considered at the hearing, was a copy thereof; or that the lots as now laid down on said Exhibit A, and numbered “ 24 ” and “ 25,” with the alley on the south-west side of lot No. 24, were laid down in the same manner on said map so marked by Strat-ton, the conclusion would be inevitable that, at the time Floyd sold lots 25 and 26, and the alley between them, that- he then intended to open an alley between lots 23 and 24, as claimed by Dingess. Although it is admitted by all parties that the lots which 'were purchased by Ellis were then numbered “25” and “ 28,” and the same were subsequently numbered “ 24 ” and “ 25,” it is not pretende! that they are different lots. It is apparent from an inspection of the map filed in the cause, marked “ Exhibit A,” and now before us, that this is not the map that was in the hands of Floyd at the time he sold lots Nos. 25 and 26 to Ellis, which Stratton had marked “ A and B, sold to Simpson Ellis,” for no such marks now appear thereon, nor is there any indication or evidence tending to show that such indorsement had ever been made, nor to identify this as the 'map then used. It is apparent on the face of this map that it is neither the map so marked by Stratton, nor a copy thereof, but, on the contrary, it purports to be a “ copy of map and notes filed in the case of Floyd and Lawson in the District Court of the U. S. for the district of W. Va.” By an inspection of Exhibit A, and of the explanatory notes endorsed thereon, it appears, among other things, that lots 25 and 26, laid down thereon, are- designated in said notes as the “ Simpson Ellis Purchase and that while said lots are separated by an alley, there is no alley laid down on the south-west side of lot 25, (now 24,) but there is an alley laid down on the south-west side of lot 24, (now 23,) owned by Dingess, and between it and the adjacent lot on that side. The pretension of the defendant that this alley between the plaintiff’s lot and that owned by Dingess was laid down on the map so marked by Mr. Stratton when Ellis purchased said lots, is not only unsupported- by the testimony of the witnesses, but is contradicted in every essential particular by the defendant’s Exhibit A. It is quite certain that no such alley was laid down on said map when it was so marked by Stratton at the time Floyd sold the lots to Ellis.

Has any such alley been made or dedicated to the public since that time-? But twowitnesses were examined by the defendants, and to neither of them did they propound a single question touching the existence of this alley. Only one of these witnesses mentioned or even referred to it, and what he said was stated on his cross-examination by the plaintiff. The substance of these answers so given on cross-examination is as follows : “ I came to Logan Court-House in the summer of 1873, and went to Mr. Ellis, with a view to buying his property. At that time there was a shed on the upper side of the stable, next to the lot now occupied by Dingess. He showed me the lines of his lots. My impression now is that the fence joined the stable near-the corner, next to the lot now occupied by Dingess; and my reccollection is that he told me at that time that the shed, or a portion of it, was on the alley.” “ Taking the town-plat, or what purports to be the town-plat, as a basis, and agreeably to the way the streets and alleys have been laid off thereby and surveyed, I know that the alley, as located by the committee appointed by the town council of the town of Aracoma, and as it was ordered by said council to be opened, would leave nearly or quite three-fourths of the stable above the alley.” “ In the conversation with Mr. Ellis at that time, my understanding was that there was a plat of the town, and that the same was laid off into lots, and if there was then no alley laid off at that place, there was to be an alley located there.” “I think Simpson Elliá inclosed a piece of ground adjoining the property now occupied by Mr. Miller, (plaintiff,) comprising a large part, if not all, of the lot now owned by Dingess, which Ellis and others cultivated for a considerable length of time, until the fencing went dovfn; and during that time, and since, up to the present time, no portion of it has been used by the public as an alley.”

In the case of Pierpont v. Town of Harrisville, 9 W. Va. 215, this Court established the doctrine that “where there has .been no public use of a street, the owner may dedicate his land to the public use for such use by acts and declarations without a deed. But in such a case these acts and declarations must be deliberate, unequivocal, and decided, manifesting a positive and unmistakable intention to permanently abandon his property to such public use.” This doctrine was reaffirmed by this Court in Boughner v. of Mason, 23 W. Va. 211, this Court held that if an in Town of Clarksburg, 15 W. Va. 394. In Mining Co. v. Town corporated town attempt to open streets and alleys through the land of any person against his consent, claiming that the land sought to be taken for that purpose had been dedicated to the use of the town, the burden of proving such dedication is upon such town.

The testimony of Ellis, taken on' behalf of the plaintiff, proves that he took possession of the lots in controversy in 1871, and resided there four or five years: that he inclosed the premises with a fence when he went there ; that his fence on the upper side of his lot between it and that occupied by Dingess was four or five feet from the stable built by him, which stands where it then stood, and that the stable and shed were on the inside of the fence as built by him; that the land immediately above his lot and adjoining the same, was also inclosed by him about two years after he went there, and was cultivated .by him for two years, and afterwards by White; that this last inclosure joined the fence he had built around his lots, and there never has been an alley used by the public through the lot in question as claimed by said town, and that he never heard of such a claim until recently. The plaintiff, on his own behalf, testified substantially to the same facts, and stated : “ The alley ordered to be opened by said town council, as located and staked off, is entirely on the inside of my lot, and inside of the lot as it was inclosed when I bought it, except that portion now indo,sed where Dingess street formerly ran. At least two thirds of the alley, I think, is between the stable and my dwelling-house. At Dingess street, the alley, as now located, is from seven to nine feet , inside of my inclosurb, and at the river, from thirty to forty feet inside of my, inclosure; leaving the largest portion of the stable, and the ground where the shed. stood, between the alley and the property now occupied by G.' M. Dingess.” As already shown, it is admitted by the pleadings that the plaintiff’s title to all the land claimed and .held by him within his inclosure is perfect. The plain tiff and his vendor, having held and claimed all the land within his inclosure adversely for more than 10 years before this suit was brought, his title thereto, even if originally defective, has become perfect against every one, including the town of Aracoma, even though the alley had been dedicated to it before its purchase by Ellis, as the statute of limitations applies to incorporated towns and cities as well as to individuals. City of Wheeling v. Campbell, 12 W. Va. 36; Mining Co. v. Mason, 23 W. Va. 211.

The defendant’s proofs in this case are clearly insufficient to prove that the alley claimed had any existence on the 9th day of February, 1871, when Ellis purchased the laud, or that any such alley was ever opened by Ellis or the plaintiff afterwards, or that the public ever had any use of such an alley at any time before or since Floyd sold said lots to Ellis. The proofs on the part of the plaintiff show beyond any reasonable doubt that the pretensions of the defendant to justify the opening of this alley against the consent of the plaintiff are entirely groundless. The facts proved are insufficient to show any dedication whatever of such alley to the public use, much less to show that either Floyd, Ellis, or the plaintiff, by any act or declaration manifested a positive and unmistakable intention to permanently abandon any part of said premises to the public use. We are therefore of opinion that the decree of the Circuit Court rendered in this cause on the 15th day of October, 1885, is erroneous, and must be reversed, with costs to the appellant, against the defendant, the town of Aracoma. And this Court now proceeding to render such decree as the Circuit Court should have rendered, it is adjudged, ordered, and decreed, that defendants, from all proceedings to open the alley in the bill mentioned, or to appropriate any of the plaintiff’s land to the public use of the town of Aracoma, be forever enjoined, until, by proper proceedings, the said town acquires the right to do so, and that the defendant, the town of Aracoma, do pay to the plaintiff his costs in the Circuit Court expended.

REVERSED.