84 Va. 467 | Va. | 1888
delivered the opinion of the court.
This suit was instituted by T. K. Cartmell, a citizen of Frederick county, and the board of supervisors of said county, to-enjoin the city of Winchester, and a committee of its common council, composed of George E. Bushnell, Washington South, and T. M. Bantz, from tearing up the stone pavement, removing the hitching-posts, and making certain other radical changes in that portion of what is known in the record indifferently as the “Public Lot,” or “ County Lots,” or the “Public Square,” lying east of a line extending from Railroad avenue, or Courthouse avenue, (as it is now called), along the eastern wall of the courthouse and the county clerk’s office, to-Water street. The defendants both answered and demurred to the bill, and upon argument the demurrer was overruled, and, as we think, rightly. The bill substantially alleges that the county of Frederick has had possession of this square ever since it was constituted a county; that said property has been long used by the county of Frederick for public purposes; that upon it stands the county courthouse, county clerk’s offices, and the offices of the clerk of circuit court of said county, and that by virtue of a deed from James M. Marshall, dated June 2, 1801, the county is at least entitled to a joint ownership with the city in said property. It then alleges that the city of Winchester is proceeding to make such radical changes in the status of the property that its character will be entirely destroyed, and that irreparable damage will ensue unless the court intervenes, and closes with the proper prayers for an injunction, an account, and further relief. This was sufficient to make a ease for a court of equity. It advised the defendants that the county’s claim to the property in question rested upon possession and long devotion to public purposes, but that the mere legal title was derived through the Marshall deed. It was tantamount to a declaration that it claimed the property in question by dedication, although it became possessed of the
The answer of the city denies that it claims any interest in said property by virtue of the Marshall deed, and while denying that the city ever proposed to make any radical changes in the status of„ the property, it admits the passage of an ordinance, and the appointment of a committee to have the stone on the Market square, which had been laid there by the council, taken up, and the ground planted in grass and trees, and says its committee were doing only this when restrained by injunction. It rests its claim to determine and direct the uses to which this property shall be applied upon the original dedication, and its right so to treat the ground as to prevent its becoming a public nuisance.
From the historical evidence in the cause, it appears that in 1738, an act of the colonial legislature was passed authorizing the county of Frederick to be carved out of the county of Orange, and providing that “ until it shall be made to appear to the governor and council that there is a sufficient number of inhabitants for appointing justices of the peace and other officers, and erecting courts therein for the due administration of justice, it shall remain a part of the county of Orange.” And it is fair to infer that the county of Frederick did not acquire the requisite number of inhabitants and become a distinct county until 1743, when the first act of the county court was to order the erection of a jail on the land now in dispute, and from this time until after the execution of the Marshall deed in 1801, it seems perfectly clear that the county court exercised absolute and exclusive control over this property. During all of this period, the only allusion to the town of Winchester to be found in .the orders of the county court and in the record of this ease, is in 1782, when the county court
In 1752 (6 Hen. St., 268) the town of Winchester received its village'charter, and in 1779, (10 Hen. St., 172) it was incorporated as atown, and was first invested with a market franchise. In 1799, the county court of Frederick, by an order entered at its April term, though reciting that Lord Fairfax had dedicated “ a square of lots in the town of Winchester on which the public buildings are erected * * * for public use, but that a legal conveyance for the same hath not been executed, and that James M. Marshall, who now claims under a purchase from the representatives of the said Fairfax, is willing to, execute a conveyance for the same,” appointed a committee “ to confer with the said Marshall thereupon, and to obtain a conveyance for said lots to the present justices in commission of the peace, and their successors for public use.”
In the December following, an act of assembly was passed, which, after reciting that “it hath been represented that James M. Marshall is willing to convey to such persons as may be empowered by the general assembly of Virginia to take a conveyance, all his rights, title, and interest in and to the public square in the borough of Winchester, in the county of Frederick, except that part on which the church stands, and the church-yard annexed thereto,” enacted “that any deed of conveyance made and executed by the said James M. Marshall for the public square as aforesaid, to the justices of the county aforesaid, the mayor and aldermen of the borough of Winchester, and their successors, (to and for the use of the said borough of Winchester and county of Frederick,) shall be as good and valid in law as if such conveyance had been made to an individual.”
On the second of June, 1801, a deed of conveyance was duly executed in accordance with the provisions of this act to the justices of the county of Frederick, and the mayor and aldermen of the borough of Winchester. During all this
But is this so ? Are the uses here general and unlimited, or are they special, qualified, and limited? This question must
Under these circumstances, the only rational, and, indeed, the inevitable, conclusion must be that this property was intended to be dedicated to the very uses to which it has been appropriated, which are nothing more or less than the ordinary uses to which many of the county courthouse squares in this State are applied. Having reached this point, it only remains for ns to say that it is established by the clear and uncontradicted
The circuit court therefore erred in dissolving the injunction and dismissing the bill, and its decree must be reversed and annulled, and the injunction must he made perpetual.
Decree reversed.