120 Va. 853 | Va. | 1917
delivered the opinion of the court.
This is an appeal from a decree which judicially determines the existence of an alley-way through certain town lots, and protects the use of the same by a perpetual injunction.
The essential facts are these: The land comprised in what is now the town of Cape Charles was formerly owned by William L. Scott, who in 1884 subdivided it into lots, streets and alleys, and recorded a plat thereof according to law. Subsequently, Scott sold and conveyed sundry lots in the town, as thus laid off, to sundry individuals; and still later, by deed dated July 16, 1885, duly recorded, he sold and conveyed to A. J. Cassatt all lots facing south in a block bounded on the north by Monroe avenue, on the south by Tazewell avenue, on the east by Nectarine, street, and on the west by Plum street. This block contained twenty-eight
This suit was brought by John H. Doughty, and others owning some of the other lots in the block, against certain other lot owners in that block to require them to open the alley. The relief prayed for was granted, and John T. Daniel, one of the defendants, brings this appeal.
There was a demurrer to the bill which was overruled,
It is claimed, in the second assignment, that the decree violates the terms of section 2510-a of the Code prescribing the manner of vacating in whole or in part plats of town lots. The establishment of the alley by the owner of the t block before he sold any lots therein did no violence to any of the provisions of the statute here invoked. This statute, as we conceive, was not intended, and cannot be construed, to prohibit the creation" of new or additional ways or easements, not shown on the original plat. Its manifest purpose and policy is to prevent the diminution of the public uses and conveniences guaranteed in the original plan of subdivision. To give the statute the effect contended for by the appellant would be to place upon it a construction directly opposed to its plain reason and spirit. The consent, properly evidenced, of the owners of the lots affected, is the only prerequisite to the establishment and opening of an alley such as is involved in this case; and subsequent purchasers must take cum onere. The closing of a street
It is further contended that the decree was erroneous in so far as the lots purchased by the appellant in 1903 are affected, because “the attempted creation of the alley was without force and effect, as by the provisions of the reservation itself the alley was to be for the use of those not parties to the deed, assigns being those to whom something is assigned subsequent to the date of the instrument using the term, and according to the court’s construction of this reservation the alley was also intended for the use and benefit of those parties to whom William L. Scott assigned prior to” the conveyance of the two lots purchased by the appellant in 1903.
Whatever might be the merits of this contention if the cases in hand rested solely upon the reservation contained in the deed of 1903 from Cassatt to the appellant, the contention is without merit here because the deed above recited from Scott to Cassatt, which was duly recorded, operated an unquestionably valid creation and establishment of the alley-way through the entire block, and the appellant took subject to it. It was in his chain of title, and under familiar rules of law was binding upon him.
The fourth assignment of error is to the effect that, “it was error on the part of the court to enter the decree, certainly as to lots 368 and 369 (purchased directly from Cassatt) , as by the depositions introduced these lots, including that part of the alley which was taken from them, had been held by petitioner by actual, open, uninterrupted, notorious and adverse possession under color of title for the statutory period of fifteen years” before the suit was brought. In the oral argument of this case, counsel for the appellant stated to the court that unless the decree complained of should be reversed upon some other ground, this assignment was to be treated as waived and abandoned.
We have looked carefully to the evidence and find it exceedingly meagre and wholly insufficient to support the allegations of this assignment. Whatever may be the existing facts as to the alleged long continued obstruction of the alley, they are certainly not sufficiently developed in the record to meet the burden of proof and the character of proof requisite to establish the abandonment of an easement. The law is perfectly well settled that the burden of proof to show an abandonment of an easement is upon the party claiming such abandonment, and that he must establish the fact by clear and unequivocal evidence. Jones on Easements, p. 682, sec. 850; 14 Cyc. 1193; 9 R. C. L., p. 813, sec. 68, note 11; Scott v. Moore, 98 Va. 668, 686; 37 S. E. 342, 81 Am. St. Rep. 749.
We find no error in the decree complained of, and it will he affirmed.
Affirmed.