90 W. Va. 781 | W. Va. | 1922
This suit was instituted for the purpose of recovering damages for the death of plaintiff’s intestate from a fall through a bridge, which it is claimed the defendants were under the duty to keep in good order and repair. The court below sustained a demurrer to the declaration as amended, and the plaintiff, not desiring to further amend, a judgment of nil capiat was rendered, to review which this writ óf error is prosecuted.
The declaration as amended alleges that in .the year 1911 ■the defendants were the owners of a tract or parcel of land situate near the city of Clarksburg, ■ and on the north side of the' Baltimore and Ohio Railroad Company’s tracks ana right-of-way; that at or about that time they caused the same to be laid off into town lots, streets and alleys, and made a plat thereof designating the same as the Jackson-Snider and Maxwell Addition to Clarksburg, and caused said plat to.be recorded in the office of the county clerk of Harrison county designated as “Montpelier Plat N.o. 1”; .that since said time the defendants have offered for sale, and have sold to persons desiring to purchase the same, many of the'lots or parcels of land shown upon said plat ; that 'about the same time the defendants built a bridge designated on the said plat as Montpelier Bridge;,, constructed of iron, stone,, etc., over and across the tracks of the Baltimore & Ohio Railroad Company, and about 25 feet above the level of said tracks; that said bridge was constructed for the accommodation of vehicles, as well as pedestrians desiring to use the same, and extends from'the lots platted and laid off ■as' aforesaid across the said railroad, and connects the' same
The defendants insist that the' declaration does not' state a cause of action against them for two reasons: First, because
It cannot be doubted but that when the defendants laid off this tract of land and made the plat thereof, and recorded the same in the county clerk’s office, and sold lots in regard thereto, the purchasers of such lots acquired an easement in the streets, alleys, and public ways shown upon said plat, whether the same were accepted by any public authority or not, and they could not be deprived of this easement or right by the proprietors of the sub-division without their consent. Cook v. Totten, 49 W. Va. 177; Edwards v. Moundsville Land Co., 56 W. Va. 43; Griffin v. Richardson, 83 W. Va. 442, It is likewise very well established that the owner of an estate over which there exists an easement is under no obligation to maintain the easement in a condition fit for use. The duty to maintain it so that it may be enjoyed rests upon those entitled to its enjoyment, in the absence of some contractual or prescriptive relation imposing this duty upon the owner of the servient estate. Griffin v. Richardson, supra; 9 R. C. L., title “Easements” § 51 and authorities there cited; Nichols v. Peck, 70 Conn. 439, 40 L. R. A. 81, 66 Am. St. Rep. 122; City of Bellevue v. Daly, 14 Idaho 545, 94 Pac. 1036, 15
It results from what we have said that the owners of the lots in this Montpelier Sub-Division own an easement in this bridge, as well as the streets used in connection with it, and that there was no duty upon the defendants after the dedication of this bridge to that purpose to maintain the same so that the lot owners might enjoy their easement. Having come to this conclusion, it is unnecessary for us to consider whether or not the legislature accepted this bridge and the streets laid off in the Montpelier Addition by the adoption of a new charter for the city of Clarksburg, under the terms of which this addition, as well as the bridge, were included within the corporate limits of said city.
■ Our conclusion is that the declaration does not state a cause of action against the defendants, and the judgment complained of is affirmed.
Affirmed.