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Rudolph v. Glendale Improvement Co.

137 S.E. 349, 103 W. Va. 81, 1927 W. Va. LEXIS 21
CourtWest Virginia Supreme Court
DecidedFebruary 1, 1927
Docket5736
StatusPublished
Cited by21 cases

This text of 137 S.E. 349 (Rudolph v. Glendale Improvement Co.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rudolph v. Glendale Improvement Co., 137 S.E. 349, 103 W. Va. 81, 1927 W. Va. LEXIS 21 (W. Va. 1927).

Opinion

Lively, Judge:

Harry L. Rudolph, a lot owner in division No. 3 of the Town of Glendale, Marshall County, was decreed a mandatory injunction compelling defendant, Glendale Improvement Company, to restore the lots, streets, alleys and parks in division No. 1 of Glendale, as laid out on a plat thereof by Wm. Erskine, Trustee, in 1891, which plat was duly recorded by him, and the streets,, alleys and parks shown thereon were then by him dedicated to public use. The decree annulled a revocation of such dedication and change in plan made by defendant on Nov. 21, 1923 and recorded; and enjoined defendant, its agents &e., from making any change in said streets, alleys and parks as laid down on the Wm. Erskine, Trustee, plat in division No. 1. Defendant appealed.

In 1891, Daniel L. Heiskell and others conveyed a tract of about 250 acres, now included in ‘Glendale, to Wm. Erskine, Trustee, on which he was authorized to lay out a town site, establish building lines, and set aside one or more parcels for parks or for depot purposes, and make sale of the lots. In that year, and by a modification made in 1892, Erskine laid off the land as a town site on the map then duly recorded, and dedicated the streets and alleys to public use, and established building lines on the lots fronting on the streets. Three parks were designated on the map, two in division No. 1, and one in division No. 2, and these parks were dedicated to the use of the public, subject to the condition that if any one of them or any part of one of them should be *84 used otherwise than as a public park, the title should revert. Many deeds were made to various lot purchasers by Ers-kine, Trustee, in which the map was referred to, reserving the minerals, and setting out the building restrictions as contained in the instrument of dedication recorded with the plat.

In April, 1904, Erskine deeded to defendant, Glendale Improvement Company, all of the unsold lots, the minerals thereunder, and his right, title and interest in and to the streets, alleys and parks; in short, he conveyed all interest and powers whatsoever he possessed in the land originally deeded to him as trustee. No lots had ever been sold either by Erskine or defendant in division No. 1, except a lot or so donated to a water company for its purposes, and this lot had been reconveyed to the grantor by the water company. The following map will make the controversy clearer.

(See accompanying map)

In 1892, Erskine deeded lot No. 11 in division No. 3, and plaintiff acquired it by deed of June 13, 1923, from Berry, the original purchaser. It lies about one-fourth of a mile from division No. 1 by the most direct route. In division No. 1 the streets, alleys and two parks had never been opened or worked on, that is, they had not been marked out on the ground except by the map. In the circular space designated as a park, trees had been planted by Erskine, but it appears to have been allowed to grow up in underbrush. The remainder of division No. 1 had been used by Erskine and defendant as his successor, for agricultural purposes, such as raising corn, for very many years prior to this suit.

In November, 1923, defendant by resolution withdrew all of division No. 1 from dedication to the public, and recorded a plat showing all the land lying west of the Baltimore & Ohio Railroad (division No. 1) to be divided into four tracts, aggregating about forty acres, with three streets or roads running from division No. 2 across both railroads to the river, one in the center, and the others at the north and south ends of division No. 1 as originally laid out. This suit was then instituted to compel defendant to restore the original plan *85 as laid down on tbe Erskine map, and to set aside and annul the relocation and changed plan made by defendant in 1923, ending in the decree complained of.

*0

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Bluebook (online)
137 S.E. 349, 103 W. Va. 81, 1927 W. Va. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudolph-v-glendale-improvement-co-wva-1927.