72 W. Va. 475 | W. Va. | 1913
From a final decree perpetuating an injunction restraining defendant from removing certain obstructions placed by the plaintiff in the public highway, the legal establishment of which through his land is controverted, the defendant appeals.
In June,' 1905, the county court of Nicholas county appointed
Plaintiff urges, as grounds for relief, defendant’s omission
While defendant did not, as stated, strictly comply with the formalities usual, in fact required by statute, its failure in that respect may,' with propriety, be traceable to plaintiffs conduct. Acting upon the good faith of his promise — and, in effect, what he said is the equivalent of a promise — not to claim damages provided the road was located as suggested by him, the viewers reported, and the county court, as it might under the circumstances, accepted, as true, the report, that “neither of the landowners claim damages.” On cross-examination, to the question: “When you reached the lands of Mrs. Burr did you in talking to the viewers, C. A. McClung and J’. H. McClung, and to G-. A. Burr, Jacob Bays, R. C. Skaggs and possibly others, state to them that if the road went outside of your field through your lands you would not claim any damages on account of said road going through your land, or in substance that?” he replied: “Not in them words. They was George Burr brought up a conversation to this effect, says if any of us claims damage there won’t be any road. I replied and said that so far as I was concerned there was all the road I wanted, and if the road went through my place that I had filed an account for damages for $55; and George Burr says if you claim damage we will claim damage, and I told him I didn’t care who claimed damage, that he could claim all the damage he pleased, and in the conversation I remarked something like this, that if I didn’t have to build the line (lane) fence through my place that I wouldn’t care so much, but if I had to make a lane fence plumb through my place there was going to be a big thing on me. He contended that they had lanes through their place, that I had just as well built lanes as them, and I told him as well as I mind that they was done built, or something to that
His claim that he filed with defendant or its clerk a claim for damages is without satisfactory proof in its support, and is clearly refuted by proof deemed sufficient for that purpose. Besides, not calling as a witness the attorney or agent by whom the claim therefor was prepared or presented, according to his testimony, justifies the presumption that, if produced, such witness would not only not support him in that respect but would testify to the contrary. Cooper v. Upton, 60 W. Va. 619, 654, and cases cited.
The testimony quoted, tending as it does, although apparently evasive, to show plaintiff’s consent to the establishment of the road through his land, without damages or claim therefor, accords with the positive statements of defendant’s witnesses that he did so agree. But he now asserts and insists that the agreement is not legally conclusive against a subsequent right to withdraw therefrom and require payment for such damage, and that, until such payment is made or the road otherwise legally established by the county court, he may obstruct it, and by injunction prevent the defendant from removing the obstruction and reopening the highway to public use. The authorities do not, under similar circumstances, warrant any such pretensions. The rule announced by them is to the contrary, as the following cases, those cited therein and in 16 Cyc. 768, clearly show. Railway Co. v. Perdue, 40 W. Va. 443; Railway Co. v. Railway Co., 70 W. Va. 227; Mylius v. Koontz, 69 W. Va. 621; 1 Elliott on Roads and Streets, § 139, 146, 147; 2 Id., § 733-737; 1 Lewis on Eminent Domain, §§ 494, 495. As stated in Railway Co. v. Railway Co., 70 W. Va. 227, the principle applicable to the facts of this case, and that generally stated, is to the effect that if an owner of land, with full knowledge and without protest, permits another, under a
But plaintiff denies both permission to enter and acquiescence on his part to an entry on' his land or any part of it by defendant’s agents for the purposes of preparing it for public use. But the evidence tends to prove, and does sufficiently prove, not only that he assisted in promoting the establishment of the road, and suggested changes in the location thereof on his lands, which were then made as so suggested, but also that he knew the road was in fact opened and used by the public whenever necessary or convenient, and that work thereon was continued from time to time under the order arid direction of the proper officers and agents of the county court from the
Thus, it will be observed that from time to time from the spring of 1906 until 1909, without any notice or dissatisfaction •on his part, or without any protest from him, the county court not only opened the road by.the expenditure of the amount donated by other land owners affected and the additional county funds necessary for that purpose, but did work thereon, and that the public was using the same during that time in the manner and for the purposes for which it was intended. The question then presented for determination is whether, under these circumstances, and after this delay, plaintiff may restrain and prevent the county court from removing the obstructions placed on the road by the plaintiff. The following cases, with those already cited, answer that question in the negative. Hast v. Railroad Co., 52 W. Va. 396; Mann v. Peck, 45 W. Va. 18. wherein it is said: “Wien a party, with full knowledge, or at least with sufficient notice or means of knowledge, of his right and of all material circumstances of the case, freely and advisedly does anjdhing which amounts to the recognition' o'f a transaction, of acts in a manner inconsistent with its repudiation, or freely and advisedly abstains for a considerable length of time from impeaching it, there is acquiescence, and the transaction, although originally impeachable, becomes unimpeach
The conclusion is to reverse the decree of October 25, 1909, dissolve the injunction awarded June 18, 1909, and dismiss the bill, with costs and damages as required by law.
Reversed. Injunction Dissolved. Bill Dismissed.