83 W. Va. 442 | W. Va. | 1919
In the year 1890 one AVilliam Hood laid off into town lots an addition to the town of Shinnston. A plat was made of this addition which included thereon certain streets and alleys, as well as the lots, as part thereof. These lots Fere sold by Hood to various parties, among the purchasers being the plaintiff Griffin and defendant’s intestate, Luther H. Coffman. Coffman became the owner of three of said lots, to-wit, those numbered six, seven and eight on the plat, and Griffin likewise became the owner of three thereof, Nos. twenty-five, twenty-six and twenty-seven. Between the rear of the three lots owned by Griffin and the rear of the three owned by Coffman there was laid down on tile plat an alley eighteen feet wide connecting at one end of the property of Griffin and Coffman with another road or alley referred to in the proceedings as Ravine Alley; and at the other end of their respective properties was another alley running at right angles to the alley separating the properties of the parties to this suit. Each of the parties constructed houses on the respective parcels of land owned by him, the house of Coffman fronting on a street running in front of his lots at the end farthest from the lots of Griffin, and the house of Griffin fronting on a street running in front of his lots at the end farthest from the lots of Coffman. It appears that the surface of the alley at one end of the lots of the parties, known as the Ravine Alley, at the point at which it intersected with the alley separating the properties of the parties, was about ten or twelve feet below the surface of the alley with which it so connected, so that it was impossible under the conditions that existed at the time the property was laid out to use these two alleys in conjunction. Each of the parties reached the rear of his property by coming over the alley between them, and in order to turn around was compelled to go upon his own lots, or the lots of his neighbor, the alley not being wide enough in which to turn a wagon. That part of the alley lying between the property of the parties farthest.
There is-no doubt that when a party lays off a piece of
While there is no obligation upon the party dedicating the streets and alleys in this way to put them in reasonable condition for use, he does vest the right in the parties to whom he sells the lots to so put them in such condition, and to do whatever may be necessary to that end. As between the orig-' inal owners of the property and the purchasers of the lots, or' the owners of the easement, the latter have the absolute right to do whatever may bo necessary for the reasonably full enjoyment of the easement granted. Hammond v. Woodman, 41 Me. 177; Cook v. Totten, supra; Edwards v. Moundsville Land Co., supra; 9 R. C. L., 794; 10 Am. & Eng. Ency. of Law, 428; City of Bellevue v. Daly, supra; Nichols v. Peck, supra; Dudgeon v. Bronson, supra; McMillan v. Cronin, 75 N. Y. 474; Prescott v. White, 21 Pick. 341, 32 Am. Dec. 266. These authorities clearly establish the right of the purchasers of lots under such circumstances, as between them and the original oivner, to do whatever may be necessary to put the streets and alleys in condition for use. Clearly when they were laid off this is what the parties contemplated, and while the original owner cannot be compelled to improve the same at his expense, he cannot prevent such improvement being made by the lot' owners. And where a sub-division of this character has been dedicated, and such dedication has been accepted by a municipal corporation, the right of said municipal corporation to change such streets and alleys from
But it is contended that while this right may be vested in a municipal corporation upon its acceptance of such a dedication, it does not belong to the owners of lots in such a subdivision. It is a little difficult for us to understand why, if a municipal corporation can make such a change in the natural condition of such streets and alleys, that one or more of the parties who own the easement, and are entitled to use the same, could not do' the like. The action of the municipal corporation is only by reason of the fact that it has accepted the dedication, and its right to improve such streets or alleys without paying compensation to an abutting owner who may be injured thereby depends on no other ground than that it is the owner of the easement. Why then, in a case where no public authority has accepted the dedication of such easement, cannot the private owners thereof do exactly the same thing? If it is dammim absque injuria, in case the work is done by a public authority owning the easement, why is it any less so when such improvements are made by private persons owning exactly the same easement? It may be said that the right of a municipal corporation to make such improvements is not unlimited. It can only do such grading and make such improvements in streets and alleys thus dedicated as may be reasonably necessary to put the same in condition for the reasonable enjoyment of those entitled to their use, and this must be done so as to disadvantageously affect abutting property owners as little as possible. We think exactly the same rule applies in cases where the easement thus created has never been accepted by a public authority, but is vested in the owners of the lots. So far as our examination has gone there have been few adjudications upon this particular question, but we find in the ease of Rotch v. Livingston, 91 Me. 461, that it is held that any one of the several owners of such a
This brings us to the question of whether or not the improvements contemplated constitute such an impediment. We have pretty fully shown their character in the statement we have before made. Griffin, it is true, will not be able to obtain access to his property as readily as theretofore, but his use of the alleys and streets of the sub-division will be very much easier than theretofore.' The rule does not mean that an abutting property owner cannot be made to suffer any inconvenience at all, but only that no substantial injury may be inflicted upon him. It must be borne in mind that when these people bought these lots they knew that it was contemplated that these streets and alleys would be used for the purpose for which such streets and alleys are ordinarily used, and they also must have known, because the physical facts so informed them, that this could not be done without making some change in the then existing condition thereof, and so long as the change proposed to be made goes no further than the absolute necessity of putting them in condition fit for the use to which they are dedicated, and does not substantially prevent the use thereof by any of the abutting owners, no one has a right to complain, even though his property may not be as free of access as it would be were no changes made therein. To hold in this ease that Griffin is entitled to have this allej1- remain in its natural condition would be practically dedicating it to his individual use, and to deny the use of it to others who are equally entitled thereto, for it is conceded that it cannot be used in connection with the Ravine Alley unless some improvement is made in it, and some change made in the grade of the Ravine Alley. We do not think that the
"We are, therefore, of opinion that the court erred in perpetuating the injunction,- and our order will be to reverse the decree of the circuit court and dismiss the bill.
Reversed, and bill dismissed.