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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. Ealston, 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 Court,.and upon the case there being heard the decree of the circuit court 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 court 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 [172]*172maintained the said nuisance and which strip was by the decree' of the Supreme Court ascertained to he a part of the said Water Street, said plaintiff haying, 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 ease 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 hill in equity in the said circuit court, praying that said Ralston he perpetually enjoined from prosecuting said actions of trespass on the case and unlawful entry and detainer and1 compelled to dismiss the same, and that a decree he 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 Plesher title, so as to estop him from his present claim as alleged in the hill, 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 hill 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-Flesher, 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 [173]*173provides 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 the 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 land office for the same either in consequence of any survey already made, or which may hereafter be made, shall be 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 ungranted by the former grant, and that shore was used as a common 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 Flesher, and were passed thereby to him or any other person, and plaintiff therefore claimed that by virtue of the dedication by Flesher 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 the 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. Colo had commenced to deposit material, such as stone and lumber, on Water street along between lot No. 12 (which ran from Main street back towards the river one hunderd and fifty feet) and the river, as represented by the plat of the town just above the bridge and near Second street and the Staunton and Parkers-burg 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 Water 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 saidtownof Weston, should it see proper to do so, to open, construct and keep in repair a street as provided in the deed from Woflindin and McBride to O. H. P. Washburn and is still willing to allow such street to be maintained.” And after denying that his livery stable, as he proposed to build and maintain it, would [174]*174be a nuisance; says “that it is not the habit of defendant to allow manure or other filth to accumulate about his 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 liner of tne lots fronting on Main street.
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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. Ealston, 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 Court,.and upon the case there being heard the decree of the circuit court 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 court 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 [172]*172maintained the said nuisance and which strip was by the decree' of the Supreme Court ascertained to he a part of the said Water Street, said plaintiff haying, 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 ease 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 hill in equity in the said circuit court, praying that said Ralston he perpetually enjoined from prosecuting said actions of trespass on the case and unlawful entry and detainer and1 compelled to dismiss the same, and that a decree he 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 Plesher title, so as to estop him from his present claim as alleged in the hill, 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 hill 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-Flesher, 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 [173]*173provides 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 the 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 land office for the same either in consequence of any survey already made, or which may hereafter be made, shall be 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 ungranted by the former grant, and that shore was used as a common 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 Flesher, and were passed thereby to him or any other person, and plaintiff therefore claimed that by virtue of the dedication by Flesher 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 the 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. Colo had commenced to deposit material, such as stone and lumber, on Water street along between lot No. 12 (which ran from Main street back towards the river one hunderd and fifty feet) and the river, as represented by the plat of the town just above the bridge and near Second street and the Staunton and Parkers-burg 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 Water 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 saidtownof Weston, should it see proper to do so, to open, construct and keep in repair a street as provided in the deed from Woflindin and McBride to O. H. P. Washburn and is still willing to allow such street to be maintained.” And after denying that his livery stable, as he proposed to build and maintain it, would [174]*174be a nuisance; says “that it is not the habit of defendant to allow manure or other filth to accumulate about his 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 liner of tne lots fronting on Main street. A copy of Cole’s said answer 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 Court 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 the decree against him and to re-open and relitigate the questions that had been settled by the decision of the court of appeals. On the 13th day of May, T899, eight days after Ralston procured a stay of ninety days of said decree, he took from James P. Cole a deed with special warranty for the strip of ground which by the said decision was decreed to be a part of Water street, which Ralston had in actual possession himself for many years and which Cole never claimed, and of which he never had possession, and in the cause of the town of Weston against him ten years before he had admitted the existence of Water street forty feet wide, and that such part of it as he might have claimed as being covered by the deed from M. S. Holt to himself of April 10, 1889, belonged to, and was a part of the public street. And further, under a decree entered in the cause pending in the circuit court of Lewis County of Geo. C. Cole, trustee of James P. Cole and others, on the 11th day of May, 1889, [175]*175appointing W. B. McGary a special commissioner to make sale of the several lots, tracts and parcels of land or any of them belonging to said James P. Cole in the town of Weston, said Ealston purchased from said commissioner McGary the said same strip of ground which sale was reported to said circuit court by said commissioner on the said 13th day of May, 1899, and confirmed by said court on the same da]', and said W. B. McGary was appointed a special commissioner to execute a deed to said Ealston for said strip of ground, and by deed dated May 15, 1899, said special commissioner McGary conveyed the same to said Ealston, both of which deeds were admitted to record the day on which they were executed, thus manifesting a determination to relitigate the questions already so decided in the courts of the State, instead of taking the same to the Supreme Court of the United States, as he had proposed, and the circuit court seems to have been willing to reopen the matters settled by the first decision of the court of appeals, as upon the hearing of the case the court dissolved the injunction, from which decree dissolving the injunction the plaintiff, the town of Weston, appealed to this Court, assigning as error the dissolving of the injunction.
Counsel for the parties have filed very elaborate and well prepared briefs, which would reflect credit upon any counsel as far as the research and industry necessary to their preparations are concerned. They have thoroughly discussed the questions already settled, and forever settled whether right or wrong, in the case of Ralston v. The Town of Weston, and the only question to be determined in this case is, whether, after it has been finally determined that the title under which Ealston sought to hold the property as against the town’s easement therein for the purposes of a street, was insufficient as against the town, while it had been for a half a century held by him and his vendors in actual adverse possession as against all the world beside, he can by procuring paper titles which never pretended to claim the particular strip of ground in controversy, and under which possession of said strip was never held for a single hour, sucessfully contest the rights of the town? The decision in the case of Ralston v. The Town of Weston forever settled the question that the town has an easement over the strip of land enclosed by Ealston, and which was in said cause in controversy, which under the rulings in said case is good against any and all titles [176]*176and is binding on the world. I deem it wholly unnecessary to enter into discussion of the many questions argued in the briefs. It seems to me that a statement of the case alone is sufficient, the matters at issue having been fully and finally disposed of in the said case of Ralston v. The Town of Weston. The circuit court should have perpetuated the injunction against said Ral-ston's further litigating the title of the town of Weston to the public easement over the strip of land in controversjq and from prosecuting his said actions of trespass on tire case and unlawful. entry and detainer set out in plaintiff's bill, and annulled and set aside the deeds mentioned from James P. Cole and from W. B. McGary, special commissioner, to Er. Ralston in so far as they becloud the title or effect the public easement over said strip of land. The decree of the circuit court is set aside, reversed and annulled, and this Court proceeding to render such decree as the circuit court should have rendered, it is adjudged, ordered and decreed that the injunction granted in this cause on the 12th day of June, 1899, by the Hon. G. W. Earr, judge of the Fourth judicial circuit of West Virginia, be and the same is hereby made perpetual, that the actions of trespass on the case and of unlawful entry and detainer brought by Er. Ralston against the town of Weston as set out in the bill, be dismissed, and that said deeds from James P. Cole to Er. Ralston, dated May 13, 1899, and from W. B. McGary, special commissioner, to Er. Ralston, dated May 15, 1899, conveying the strip of lgnd in controversy be and they are hereby set aside and annulled in so far as they becloud the public easement over said strip of land, and said Er. Ralston is perpetually enjoined from further litigating the public right to said easement, as an effort to maintain and continue in force a public nuisance in derogation of the sovereignty of the people of the State.