54 W. Va. 250 | W. Va. | 1903
Lead Opinion
Ella Clifton complains of a decree of the circuit court of Lewis County dissolving an injunction obtained by her against the Town of Weston.
Deducting from the bill and answer the numerous cumbrous and unnecessary allegations contained therein, this controversy narrows itself to the right of the public to an easement for public uses in a small strip of ground situated within or adjacent to Mulberry street in the town of Weston.
Plaintiff claims this strip, first, by virtue of her title papers for certain lots abutting on Mulberry street; second, by virtue of long continuous adverse possession thereto under claim or color of title. The defendant positively denies both of these claims. This casts on the plaintiff the burden of making good such claims by her proof. As to the first, she introduces no evidence to establish it, hence we may justly regard it as abandoned. As to the second, plaintiff fails to show such hostile, actual, notorious, exclusive, continuous possession under claim of title as would destroy the public easement. The title to the land is not involved. Her deeds for her lots confer on plaintiff the title to the land to the middle of Mulberry street, subject only to the public easement, and she has the right to the possession and use of the same so long as she does not interfere with such public easement. Spencer v. Pt. Pleasant & R. R. Co., 23 W. Va. 406; Ralston v. Weston,
The Court has already said so much on the subject of public easements heretofore that a continuance thereof has become nothing more than a vain repetition and a waste of words. Foley v. County Court and Ralston v. Weston, cited; McClellan v. Weston, 49 W. Va. 669; Weston v. Ralston 48 W. Va. 170. The circuit court dismissed the plaintiff’s bill, and wholly ignored the defendant’s prayer for affirmative relief. The dismissal of the bill thus carried the answer with it and was equivalent to a refusal of the relief prayed. By the dismissal of the bill the matter in controversy was determined against the plaintiff, and became res adjudícala, and having the parties before it, the court should have gone on and given the defendant complete relief so as to end the litigation between the parties over the subject matter of the suit. The dismissal of the bill carries with it the general replication and leaves the answer in so far as it seeks affirmative relief without replication. Under section 35, chapter 1?5, Code, its affirmative allegation on which is founded its prajnr for affirmative relief must be taken to be true. The only real question of controversy presented by both bill and answer was as to whether the survey and plat made by Peter Flesher of Mulberry street were correct. The plaintiff alleged they were not
The decree is amended so as to award a mandatory injunction requiring the plaintiff to remove all obstructions placed by her on Mulberry street as shown by the survey and plat of Peter Plesher, and as so amended, is affirmed, and the cause is remanded to the circuit court with directions to enforce the performance of such mandatory injunction.
Affirmed.
Rehearing
ON PETITION EOR REHEARING.
Plaintiff insists that the affirmative of the issue in this case was on the defendants. The only issue presented by the bill and answer and general replication ivas as to whether the plaintiff’s deeds covered the strip of land in controversy. Plaintiff alleged that they did, and further alleged that the survey made by Peter Plesher was incorrect in that it showed that plaintiff’s deeds did not cover the strip of land in controversy. If plaintiff’s deeds did cover the strip of land in controversy, then the Peter Plesher survey would be incorrect, but if the plaintiff’s deeds did not cover the strip of land in controversy, then -the Peter Plesher survey is correct. The whole issue, therefore, depended on whether the plaintiff’s deeds covered the strip of land in controversy. Plaintiff to sustain her equity alleged that they did. This defendant denied. Hence the issue. Without such affirmative allegation, the plaintiff’s bill was without equity. When such allegation is denied, the equity is denied, unless sustained by proof. Hot only had plaintiff
In the present case the dedication of Mulberry street is admitted by plaintiff’s title papers, and it is positively denied that such title papers cover the strip of ground in controversy, but that, to the contrary, they recognize the same as á part of Mulberry street. In the former case the statute of limitations was involved, but by the settled decisions of this Court, that question has been entirely eliminated from this case. Hence such former case is no authority, for shifting the affirmative of the issue from the plaintiff to the defendant. There is another reason which I suggest and in which the Court does not unite, that must have some force in the future determination of similar cases, as bearing on the burden of proof, and this is that since the determination of the case before referred to, the Legislature has seen fit to recognize town councils as inferior judiciail tribunals in the determination of questions involving the rights of individuals and property, and has made their decisions subject to review by the higher judicial tribunals of the State. Section 2, chapter 110, Code. It has thereby rendered unnecessary the appeal to equity in such cases unless ir*
It is the duty of this Court to give to, and insist that proper respeci- should'be, given to, the determination of all inferior tribunals and throw around them the presumption that they will afford all applicants speedy redress of their grievances in accordance with law, especially when.the law affords a prompt and legal mode for reviewing their final decisions by higher tribunals, and in no case should a resort to equity be entertained when such mode of review exists and furnishes adequate relief. Board of Education v. Holt, Judge, 51 W. Va. 435.
The to'wn council of Weston is authorized by law to superintend the public highways within its jurisdiction, and keep them free from nuisances. As incidental thereto, it has the right to determine when a nuisance exists, and if it makes such determination wrongfully, its action may be reviewed and reversed, by writ of certiorari. The council in the present case
The high character and extensive learning of the judges who render a decision subversive of the souvereign rights of the people, add to such decision neither strength, nor potency, but only tend to show the imperfection of the human intellect, and that wisdom is! not confined to the sages, but that they may sometimes be led to their advantage by a ‘dittle child.”
Rehearing
UPON APPLICATION EOR REHEARING.
It was claimed in oral argument that the bill states that Ella Clifton owns the disputed strip of ground, because included in her deed, and that it is not a part of Mulberry street, and that the answer does not deny this, and that the bill ought to’ be taken for true, and thus establish her right to the- ground1 free*'of street servitude. This contention can not be sustained by- bill
In view of an earnest argument on a petition for rehearing as to the burden of proof, I deem it proper to discuss that question. Upon whom rests the burden of proof in this case? As just stated the bill avers that the plaintiff’s deed includes the strip in controversy. A plaintiff in ejectment or trespass, or in chancery, suing to recover ground, or damages to it, or rights in it, must lay down his deed upon the ground to see whether it
But it is contended that the town failed to prove that Peter Plesher’s survey and plat show the true location of the street. To this there are two answers. The first is, that “it is incumbent on the plaintiff to show by allegations and proof his right to a decree before he can require the defendant to sustain the affirmative allegations of his answer.” Bryant v. Groves, 42 W. Va. 10. Plaintiff had to prove that her lots, and not the street, covered this ground before demanding proof that the Plesher plat is correct. It might be incorrect, and yet the claim of the plaintiff wholly or partially incorrect. The second answer is, that the plaintiff in her bill first presented Plesher’s survey as the claim of the town, and affirmed that its basis was an old line called the “Bank’s line,” and that that line had not been properly located by Plesher, and his survey was not correct. The answer denied this by asserting that Pleshcr’s survey was correct. The town did not, but the plaintiff did, thus assume the burden of proof as to this survey. Under law above given she was called upon, not to prove a logical negative, but to show where the Banks line is, where the streets is, and thus overthrow Plesher’s plat. She must
The case of Mason C. S. & M. Co. v. Mason, 23 W. V. 211, is cited as pointed authority to sustain the appellant. It cannot rule this case. There the bill asserts title in the plaintiff by deeds and that they covered the ground which the town proposed to open as a street; also that the plaintiff had possession for a time sufficient to give title, and thus sets up two reasons showing title. The answer denied neither. The court said that the answer did not deny that the plaintiff claimed title by its deeds, did not deny that its deed covered the disputed ground, or that they did not pass title to it, and did not deny the possession alleged by the bill as giving title. How could the plaintiff be asked to prove those matters when they were not denied ? The answer was held not good to put those matters in issue. Of course, the defendant was held to prove matter not denying the answer, affirmative matter, such as dedication. The syllabus shows if there had been a proper answer denying that the plaintiff’s deeds covered the ground in dispute, and claiming it as a street, and denying possession, it would have called upon the plaintiff to prove those matters. It sustains the position taken in this case when properly read. Seim v. O’Grady, 42 W. V. 77, is a case where a bill was filed to sell a curtesy for a judgment in land bought by the wife, but to whom no deed was made in her lifetime, but was made to her heirs after her death, which deed acknowledged pa3rment of purchase money by her. Defendants set up that she only paid part of it, and they had paid the balance. This was affirmative matter which rested on the defense to prove. The court said as the deed acknowledged pajonent by her, its recital was evidence against the heirs, and made a prima facia case of payment by her, which the defendant must meet. The case is no authority in this case.
As to the contention that the decision in Wheeling v. Campbell, 12 W. Va. 36, that there can be adverse possession to bar the public right in a street vested property, and that the later decisions in Ralston v. Town of Weston, 46 W. Va. 544, and other later, cases take away vested right of property acquired by
I think the point not well taken. I will simply refer to what is contained in an opinion in Town v. Ralston, 48 W. Va. 170, 187, and add that the Central Land Co. v. Laidley, 159 U. S. 103, overrules this contention in the syllabus reading as follows: “When the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of a state court does not deprive the unsuccessful party of his property without due process of law, within the fourteenth amendment to the Constitution of the United States.” Merchant v. Penn. R. Co., 153 U. S. 380, holds the same.