12 W. Va. 36 | W. Va. | 1877
delivered the opinion of the Court:
The first question presented in this case is : was there a dedication to the public of Madison or Tenth street ? The bill alleges that there was, and a use of the street as such for more than forty years. The answer- does not deny this. It admits, “that the commissioners named in the bill, were appointed by the county court of Ohio
The answer further admits that Madison street, now Tenth, extending from the Ohio river eastwardly, crossing Main and Market streets, had been for a long time used as a public street by the inhabitants of the town and city of Wheeling; but does not admit, as respondents did not know, that the ground, over which the street passes, was ever dedicated by the owners thereof as a street, and calls for proof thereof. It denies that the ground occupied by the defendants was ever so dedicated by the owners, or used for the purpose of a street. " The answer exhibits the deeds, under which respondents claim, which describe the lot as bounded on one side by the said Madison, now Tenth street. The evidence shows that the street existed before the house of respondents was built; and the plat that respondents admit was made pursuant to the order of the county court, which plat was made in 1829, two years before the alleged encroachment on the street by building the house, in part thereon, shows that said street was of the uniform width of sixty-six feet. We conclude therefore that, the record shows that said street was dedicated to the public, by the long use thereof by the public as a street; and that it was so recognized by the property holders on said street; and that its uniform
The defendants rely upon an adverse possession in them, and those under whom they claim for more tha n forty years. It is now too well settled to be controverted, and indeed it is not denied in this cause, that if the statute of limitations will apply to a case at law, it will by analogy be applied to a cause in chancery. But it is ably insisted by counsel for plaintiff, that the statute has ‘no application in this case; that here, the maxim, nullum tempus oceurrit regi, applies with all its force, and cites a number of pertinent authorities, to sustain the position.
The first case cited is Cross v. Mayor &c., 18 N. J. Eq. 311. -The bill was filed to prevent the authorities of Morristown from widening the street, and thereby taking ground of the plaintiff, which he had held in possession for about twenty-six years. The chief justice, in delivering the opinion of the court, said: “ If encroachments of this public street exist, such encroachments, no matter how ancient and long continued, are clearly public nuisances, and as such abatable. The claim that this public easement has been curtailed by acquiescence and lapse of time, has no foundation in legal principle. Such I have always understood to be the well established rule of law upon this subject. * * * It is true, that in this country this rule of common law has in few instances been rejected; but nevertheless it is sustained, I think, by a great preponderance of American authority. * * * It is a principle of policy, and appears to have been thought almost indispensable for the protection of those privileges, in which the whole community is interested ; and it may well be doubted, if it does not exist in some form in the jurisprudence of every civilized people.” The injunction was dissolved. This decree was rendered in 1867.
While the judge used the following language quoted by counsel for the .city, that “ no length of time will legalize a nuisance for the very reason while it continues a mere trifle, no one thinks of taking measures to have it removed, and thus the public would be sure to suffer yet it can have no application to this case, because the defendant there was not attempting tó hold adversely to the public. In Jersey City v. State, 1 Vroom 521, was a controversy as to the right to widen a street, where there had been long continued possession of the ground, and the chief justice in his opinion said : “ While the city is in its nascent state, and before the streets are improved, little regard is had to strict street lines. Encroaching lot owners sometimes for temporary convenience, and at other times intending permanently to acquire the lands, often build within the street lines, they did so in this case; but by so doing acquired no right of permanent possession or title. The contraiy doctrine would effectually destroy great public rights in all cities, which like Jersey City depend upon the doctrin'eof dedication for the preservation of their parks and streets.” The next case cited by counsel for the city, is Simmons v. Connell, 1 R. I. 519. That was an action of trespass for breaking and entering the close of the plaintiff, &c. The defendant was surveyor of highways of the town of Tiverton, and had entered upon the premises, which were claimed by him to be part of the highway in said town, for the purpose of amending and repairing said way. It was proved in the case, that the land in question had been for more than twenty years in the exclusive possession and enclosure of the plaintiff and those under whom he claimed. There was
There is a dictum of the Judge in Mayor and Aldermen of Memphis v. Leonore, 6 Coldw. 412, to the effect, that adverse possession for the time prescribed by the statute would not be available against the proceedings of the
In the case of The Inhabitants of Arundel v. McCollough, 10 Mass. 75, cited in the case of Commonwealth v. McDonald, supra, we do not think the case sustains the position taken by the learned judge who cites it; all the court says upon the subject is: “ In this case no such
The case of Henshaw v. Hunting, 1 Gray 203, was cited to sustain the position of the court, in the case of Jersey City v. Morris Canal and Banking Co., supra,, and we cannot see that it does so, but is rather an authority on the other side. In delivering the opinion of the court, Merrick, Judge, used the following language: “ The objection of the plaintiff", that if First street was legally laid out, as before mentioned in 1805, he has since acquired a title to the land, over which it was laid, by adverse possession for more than twenty years, cannot upon the facts argued be sustained. First, because as has already been stated the plaintiff shows no deed to himself of the land in controversy from any former occupant; 'and secondly, because his possession and the possession of those, who preceded him, was perfectly consistent with the rights of the town of Boston. The very nature of the rights vested in the town, by the laying out of the streets in South Boston, rendered it impossible that there should be, as against them, any adverse possession until an official order or adjudication was made that the street should be completed. There never having been any such order for the completion of that part of First street now in controversy previously to the year 1851,,
The line of decision in Pennsylvania on this subject seems to have been broken, by the unanimous opinion of the court in Evans v. Erie County, 66 Penn. St. 222, decided in 1871. The following act was on the 8th of April, 1833, passed by the Legislature of Pennsylvania: “The tract of land now owned by the commonwealth of Pennsylvania on the bay of Presque Isle on Lake Erie, and known as the third section of in and out lots of the town of Erie, the streets of which are hereby vacated, be and the same is hereby granted to the borough of Erie, to construct a canal basin in the bay of Presque Isle opposite the borough of Erie ; and the burgess and town council of the said borough for the time being shall, as soon as conveniently may be, lay out the said third section in lots or tracts, as to them may seem best, having regard to the sale and settlement of said section, and expose the same separately to the highest and best bidder or bidders, and make to the purchaser or purchasers of said lots or tracts a good and sufficient deed in fee simple; and the said burgess and town council shall apply the money arising therefrom towards erecting the canal-basin aforesaid. Provided, that one hundred acres of the said land be reserved for the use of a poor-house for the county of Erie, to be selected by those persons appointed by the commissioners of Erie county for that purpose. ”
The commissioners made the selection. Evans claimed a part of said one huudred acres ; and at the time of
The court instructed the jury, that the statute of limitations would not apply; and verdict and judgment were rendered for the plaintiffs; and the defendant obtained a writ of error. Judge Sharswood, who delivered the opinion of the whole court, said: “The learned Judge permitted the plaintiffs to recover on this title, doubtless, as trustees of the charity. Yet he considered that the defendant was not entitled to avail himself of the bar of the statute of limitations, because, as he instructed the jury, it belonged to the commonwealth, and against her no length of possession would give title.” We think that the learned Judge fell into manifest error in refusing to affirm the defendant’s second point as to the statute of limitations, and by saying that there was no sufficient evidence given in the case to raise the question there propounded. The title of the commonwealth to the poor-house tract was divested by the act of 1833, and vested in the plain tiffs. As against them the running of the statute commenced on the day of the passage of that act, if the defendant was in peaceable and adverse possession of the land in controversy, and so continued until the commencement of the action. This was a period of more than thirty-one years.
That the statute of limitations runs against a county or other municipal corporation, we think cannot be doubted. The prerogative is that of the sovereign alone. Nullum tempus occurrit respublica. Her grantees, though artificial bodies created by her, are in the same catagory with natural persons. Glover v. Wilson, 6 Barr 290; City of Cincinnati v. Evans, 5 Ohio St. 594. The judgment was reversed.
This case seems to lay the doctrine down as broadly as any of the cases, that the maxim nullum tempus, &c., applies to sovereignty alone, and that statutes of limita
Mowry v. City of Providence, 10 R. I. 52, was a controversy about a part of a lot which the city claimed was part of a tract of land dedicated for a burying ground, training ground, &c., by the proprietors of Providence in 1708, bounded easterly on a street, and that having been dedicated to the public and accepted, no possessory title was of avail against the public. The court below charged, “ that the dedication was intended for the use of the people of Providence, and not for the general public or the people of the whole State: and that the State had no interest in the use thereof, as in the case of highways; and that if it was dedicated and accepted for the purposes described in the vote, a title to it might be acquired by adverse possession.” The court on appeal so held; saying by Potter, Judge : “We conclude that this was a dedication, or gift to a charitable use, not for the whole public, but for a limited portion of the public, and that the doctrine of adverse possession will'apply to it.”
This is a distinction not made in any of the cases we have cited. It might with equal propriety have been drawn in the case of Evans v. Erie County, supra; for a poor house farm for the County of Erie was certainly not intended for the general public any more than the burying grou/nd in the city of Providence was. It is a distinction that might as easily have been made in the case of Commonwealth v. Alburger et al., supra, 1 Whar. 469, for it seems to us that Franklin Square, in Philidelphia, was no more dedicated to the general public than, the poor house farm, or the burying ground-, and yet in this case the supreme court of Pennsylvania held, that the adverse possession of about one hundred years would not protect the defendants, while in the case of Evans v. Erie Cownty, supra, the same court held, that as to the poor
I propose noiv to refer to a number of decisions of the courts of last resort of different States which recognize the doctrine, that municipal corporations are-like individuals subject to the effect of statutes of limitation. '
In the case of Kelley’s lessee v. Greenfield, 2 Harris & McHenry 138, decided in 1785, .the judge who pronounced the opinion of the court, uses the form of .questions and answei’s, and the following question is found on page 137, and the answer thereto on page 138.
“Had the proprietor the same rights with respect to Maryland that the Icing of Great Britan had in England in consequence of the fifth section in the charter to him by the king from his being Lord., .of the fee ?” The answer is: “we are clearly of opinion he had not. His rights were derived under the charter,.the 4th section of which grants to him, “all and singular such ample lights, jurisdictions &c., as any Bishop of Burham. within the Bishopric or county palatine ,o£ Burham had.” The law writers upon the subject of the palatinate rights * * * in enumerating the rights, have never placed them’upon a footing,with the courts'óf the king and the maxim nullum tempus oemrrit regi has never been applied that we can find to any hut the -king himself.” In Vermont, by express statute in 1850 the State is not exempt from the statute of limitations. In Knight v. Heaton 22 Ver. 481, Redfield, Judge, said: “We see no good reason why one may not set up prescription and presumptive rights against the public as "Well as against individuals ; and there is perhaps no good reason why such prescriptions should not apply as well against the publicas in their favor. In the case of Varick v. The Corporation of New York, 4 Johns. Ch. 53, it appears to have
In The Inhabitants of the Town of Litchfield v. Wilmot, 2 Root 288, it was held that, “fifteen years uninterrupted possession of a highway will be a bar to the town’s right of recovering it for the use of a highway.” This case was decided in 1795, and the decision was controled by a statute of Connecticut, limiting the pulling down and removing encroachments on highways as well as on common land to fifteen years.
Armstrong v. Dalton, 4 Dev. 368, was an action of as-sumpsit by the plaintiff, as chairman of the Stokes county court, against the defendant, the executor of David Dalton, for money paid to the testator, as treasurer of public buildings, and not accounted for. .The. plea was the statute of limitations. The judge charged the jury that, “the statute of limitations did not bar the State; and inasmuch as the Legislature had delegated to the county courts, for more convienent administration of justice, a portion of the sovereign power, it did not bar their action, the money claimed being the property of the public.” There was verdict for plaintiff, and defendant appealed.
Daniel, Judge, in delivering the opinion of the court said : “ Public corporations, as distinguished from private, corporations, are such as exist for' public political purposes only, such as counties, cities, towns and villages. They are founded by the government for public purposes, and the whole interest in them belongs to the public, viz: to the county,' towns, &c. But the reason which upholds the rule of nullum tempus, &e., when applied to the sovereign, does not in our opinion, excuse the laches of the officers of these small communities. The plea of nullum tempus, &c., is as before mentioned, one that peculiarly belongs to the sovereign, or to the commonwealth, to be exercised for the public good. * * * The king, or State cannot be pre
In South Carolina, it was held that a continued and adverse obstruction for ten years, of a right' of way by the owner of the soil over which it passes, bars under the statute of limitations, the right to the easement. Bowen v. Learn, 6 Rich. 298. The way referred to in this case, was a private way, but such ways are also public. State v. Pettis, 7 Rich. 390.
In the case of City of Galveston v. Manard, 23 Texas, Roberts, Judge, after citing with approbation, Rowan’s ex’or v. Town of Portland, 8 B. Mon. 259, said: “Our statute of limitation of five years confers upon the possessor, ‘ full title, precluding all claims ’ except that of the government, and saving the disability of marriage coverture, or insanity. By our statute also the right of entry is barred in ten years. It has often been held, as to ways and water courses, that if the right of entry be barred, the right of recovery is lost. The possession that will give title to a street, under this statute, should not only be under claim of a deed, &c., but it should be adverse, and so exclusive in its nature as to give notice unequivocally, of an assertion of individual right to the street. This strictness in the rule, as to possession of streets and other common property, results as a necessary consequence of the character of the property, and the uses to which it is applied. Nothing short of a visible appropriation of it, to the exclusion of the public, except at the discretion of the possessor, can in such case be held to be adverse.” Rowan’s
Dudley v. Trustees of Frankfort, 12 B. Mon. 610, was an injunction by Dudley to restrain the said trustees from interfering with his property on Mero street, in said town. The marshal, acting under authority of the board of trustees, was about to execute the order of said board, to remove obstructions on said street, the enclosure of said Dudley, claiming it was on the street when the injunction was obtained. The plaintiff claimed the property as his own, and relied on the statute of limitations. Hise, Judge, who delivered the opinion of the court of appeals, said: “If the private citizen at any time encroach with his buildings and enclosures upon the public streets, the municipal authorities should, in the exercise of proper vigilance and of their undoubted authority, interfere by the legal means provided in their charter, to prevent such encroachment.in..due time, and thus preserve for public use the squares, streets and alleys of the town, in their original dimensions; but if a private individual, or citizen, has been permitted to remain in the continued adverse' actual possession of public ground, or of a public street, or- of part of a street, as embraced within his enclosure, or covered by
In County of St. Charles v. Powell, 22 Mo. 525, the court held, that “ the immunity,” (from the effect of limitation statutes) “ however it seems, was even at common law, an attribute of sovereignty only, and did not belong to the municipal corporations or other local authorities established to manage the affairs of the political subdivisions of the State.” To the same effect is : School Directors of St. Charles Township v. Georges et al., 50 Mo. 194. In The City of Cincinnati v. Evans, 5 Ohio St. 594, it appeared that in the year 1852, the city, by order of the city council, removed the front of a store house belonging to Evans on Main street, in which he was carrying on the business of a merchant tailor. Evans brought an acti on against the city to recover for the inj uries
This evidence was objected to and the objection overruled and the evidence permitted to go to the jury, to which ruling the defendant excepted.
On the other side evidence was produced going to show that Evans had built over the original line of the street, as laid out by the original survey; that this line was established by well know corners, land marks and secondary monuments; that it had been built as far back as 1818, and that the Evans building, at the time of the removal of the front thereof, was over the line of the street and in the street; and that only so much thereof was removed, as pi’ojected into and over the street. The court instructed the jury substantially, that whatever had been the original line of the street, if the plaintiff had for more than twenty-one years held and occupied the ground adversely to- the city, claiming it as his own, the city had no right to disturb him in his possession.
The verdict was for the plaintiff and judgment entered thereon, to which judgment the defendant, the city, obtained a writ of error. In delivering the opinion of the court, Eanney, chief justice, cited Lessee of the City of Cincinnati v. The First Presbyterian Church, 8 Ohio 298, and made the language of the court in that case his own, which is: “that municipal corporations are subject to the operation of the-statute of limitations in the same manner and to the same extent as natural persons, and as a consequence that notorious and uninterrupted possession by a private individual, under a claim of right, of lan d
The City of Peoria v. Johnston, 56 Ill. 45, was an injunction by Johnston to enjoin the city from taking possession of land about sixteen feet wide, then forming a part of complainant’s enclosure between his house and Main street, in said city, and from making it a part of the street. The city answered, proofs were taken, and the injunction made perpetual. The only ground, upon which the city claimed the right to a part of the complainant’s enclosure, was the dedication thereof by its former owner, Hale. The complainant had held undisturbed possession of the property for twenty-eight years prior to the institution of his suit. The city appealed, and the chief justice in delivering the opinion of the court said: “ Conceding this highway -was laid out as claimed by appellant, and conceding there was an intention to dedicate the premises on the south-east of section 4, we are of the opinion that the adverse possession of the appellee, open and exclusive, as it has been, and the complete non-user of the easement by the public for more than twenty years, are a sufficient answer to the claim now made by the city.” The decree was affirmed.
In C. R. I. & P. R. R. Co. v. City of Joliet, 79 Ill. 40, the judge who delivered the opinion of the court, quoted the above language, and added: “ We would not be understood in making this citation, as sanctioning the language thus used in its full breadth, that in such case the mere non-user of the easement by the public for
There is one ease in Virginia, bearing directly upon this subject. City of Richmond v. Poe, trustee, 24 Gratt. 149, was an injunction obtained by said .Poe, trustee, for Mrs. Bradley T. Johnson, to enjoin the city, of Richmond from proceeding to widen Franklin street by extending its northern line so as to include a part of the lot held by said trustee. The ground, on which he rested his claim to enjoin the city, was that he and those under whom he claimed, had been in possession of said lot from 1809 to 1871, when the bill was filed. The city relied upon a dedication of the ground as a public street, prior to the time the oldest deed, under which plaintiff claimed, was executed. The injunction w„as perpetuated, unless and until the city should acquire the legal right to widen the street in the manner prescribed .by law. From the decree perpetuating the injunction the city appealed. The chancellor who rendered the decree in the court below said: “ But in this case the ground was enclosed, and there was adverse possession for over thirty-five years acquiesced in by the city; and this would have destroyed the right of the city if it ever existed.”
Judge Moneure who delivered the opinion of the court referring to the opinion of the chancellor, which was made a part of the record in the cause, said : “ That opinion covers the whole case, and strongly presents the principles upon which it rests, and as .we .entirely concur in it, we deem it sufficient to express such concurrence, without adding anything to what is there said, or saying substantially the same thing in different words.” The decree was affirmed.
As bearing upon the subject, see Manchester Cotton Mills v. The Town of Manchester, 25 Gratt. 825; The City of Pella v. Scholte, 24 Iowa 283, decided in June 1868, was a contest as to the light of the city to a certain plat of ground in said city designated, on the plat thereof as
Chief Justice Dillon, in delivering the unanimous opinion of the court said: “Under these circumstances, the question recurs, whether (assuming that there had been a dedication of the square in 1847 or 1848) the defendants may insist upon the bar of the statute of limitations. It will be assumed that the statute would not begin to run in favor of the defendants, until the town or city was incorporated, charged with the duty of watching, and-possessed with the power of asserting and.protecting the rights of the intended donor. The city was organized August 5, 1855. This suit to assert the right of the city to the square, was not brought until February 26, 1866, more than ten years after the incorporation of the plaintiff. To actions of this character, though brought in equity, the ten years limitation applies directly, or by analogy. This is not disputed by counsel. * * * Rights of this character may be acquired by the public by the requisite user. Onslott v. Murray, 22 Iowa, 457. And it would seem reasonable that the public, with knowledge of its rights, and of the adverse claim of an individual, may lose these rights in a similar manner. Of course it is well understood, that statutes of limitation do not constructively apply to the
“ Whether there may not be some limitations on this general doctrine, arising out of the want of knowledge of the public corporation or its officers, of its rights, or of the adverse right, to be asserted against it, we need not stop to enquire. For in this case the right claimed by the defendant has been openly asserted by him, and fully known to the city ever since its first .organization. The present case is therefore a proper one for the application of the statute, or the principle of repose on which it rests.”
This is the same Judge Dillon, who not long after the above opinion was announced published his excellent work on “ Municipal Corporations,” in which he says, in sec. 533: “The author cannot assent to the doctrine, that as respects public rights, municipal corporations are within ordinary limitation statutes. It is unsafe to recognize such a principle.” What new light had dawned upon the distinguished judge after he had written his lucid opinion in Pella v. Scholte ? He certainly had not ascertained that the current of the decisions on' the subject was against him; for the review we have made of the authorities cited in his notes shows, that to sustain his opinion they are as a river, while to support' the text in his work they are as a rivulet. We think he was right in his opinion, and wrong in his text book. The judge in this case is better than the author.
Judge Dillon in section 533 of his work, gives as a reason why no laches on the part of a municipal corporation, or its officers, can defeat the right of the pub-
As we have seen the courts of last resort in the States of Pennsylvania, New Jersey, Rhode Island and Louisiana, have held that the maxim nullum tempus oceurrit regi is not restricted in its application to sovereignty, but that it applies to municipal corporations, as trustees of the rights of the public ; while on the other hand, the highest courts of Vermont, Massachusetts, New York, Connecticut, Maryland, Virginia, North Carolina, South Carolina, Mississippi, Texas, Missouri, Kentucky, Ohio, Illinois and Iowa, have restricted the application of the maxim to sovereignty alone; and most of said courts have, in express terms, in cases requiring the decision, held that municipal corporations like natural persons, are subj ect to limitation statutes. While able j udges have held the former doctrine, we have Chancellor Kent, Judges Redfield, Marshall, Moncure, Ranney, and other eminent jurists holding to the latter, and Judge Dillon, perhaps no less distinguished than any of the others, on both sides of the question.
We see no reason why munióipal corporations should not be held to the same degree of diligence in guarding their streets and squares from encroachments, as natural persons are in protecting their property from the adverse claims of others. We do see great, reason why no
This principle we approve, and regard the exemption from the effects of limitation statutes, as essential to the well-being of the government of the State ; but this exemption belongs and appertains to sovereignty alone. The reason for it is very apparent. If the statute of limitations would run against the State, her public lands, if she had any, would be liable to be taken from her by squatters, who would hold them for the time prescribed by the statute, and defy the State; and in those portions of the State sparsely populated, there would be few or none to complain, as it would be the cheapest way to obtain lands from the State. The highways of the State would be liable to be impaired or destroyed by encroachments, and the country not being thickly settled, and the neighbors all acquainted with each other, and the State officers being remote from those highways, there would perhaps be little complaint. But in a city or town, where so many people are to suffer inconvenience by such encroachments, and the officers of the city or town are on the spot, such encroachments are not apt to be tolerated for a long period; and they would be less likely to be tolerated, if it were known that an uninterrupted possession of a street, alley of square, would in a certain number of years give title to the occupier. The wholesome doctrine, that no”time shall bar the State, has been abolished'by a section in the Code of West Virginia, which if allowed to remain until ten years after it went into operation, may be fruitful of much mischief in this State. It is section 20 of chapter 35, and is as follows: “ Every statute of limitation, unless otherwise expressly provided, shall apply to the State, but as to claims heretofore accrued, the time shall be computed as commencing when this chapter takes effect.” This statute has no application to this cause, because after the time commenced to run, ten years had not elapsed before the suit was brought. The right to bring suit to recover land in
Having decided that the statute of limitation bars the right of the city to the portion of the street in question, we deem it unnecessary to determine whether or not this is a case, to which the doctrine of equitable estoppel will apply. We see no error in the order dissolving the injunction ; and it is affirmed with costs and damages according to law; and this cause is remanded to the circuit court of Ohio county for further proceedings to be had therein according to the foregoing opinion, and the principles governing courts of equity.