52 W. Va. 396 | W. Va. | 1903
Lead Opinion
The owner of land in Mineral County, across the river from the City of Cumberland, laid out a village by platting his land into lots and streets. The village is called Ridgely, but is not incorporated. In the village are two streets which we will call A and B. Viola G. Hast and Henrietta Hast own a house and lot on A street near the corner of A and B streets. The Piedmont and Cumberland Railway Company made an embankment for its tracks, taking part of B street and also part of A street, and laid its tracks on the embankment, and the said Hasts sued the company for damages resulting to their property from the embankment by rendering access to it less easy and from inconvenience and detriment from the operation of the railroad, and recovered a judgment in the circuit court of Mineral County for three hundred dollars damages, from which judgment the railway company has taken this writ of error. On the trial the company sought to defend itself upon the theory that when it so occupied those streets it acquired a lot in the village and tore down the fences enclosing it and threw a part of it open to the public use in lieu of the parts of the streets which it had occupied, and thus exchanged part of that lot for the parts of the streets which it thus occupied, and thus dedicated a part of the lot to public use for a public way giving access from A to B streets.
The company gave evidence to prove by its general manager, that about the time of laying the tracks in the streets, it had purchased a lot for a street or way for the public, in the room and stead of the streets so occupied, and that the company, in execution of that purpose, took down the fence from around the said lot and threw it open to the public to use in lieu of the streets, though no street was actually constructed upon it, and that the public had so used it ever since in the sáme condition in which it was when it was so thrown open. It was otherwise proven that the public had so used the way over said lot. The company asked the court to instruct the jury that if they found from the evidence that the company acquired the lot with intent to dedicate it to the public use for such way, and did throw it open in execution of such intent, and that the public had since used it as a way, then such action amounted to a dedi
The defendant thereby sought to show that the plaintiffs, having thus a way from street to street by reason of such dedication, either suffered no damage, or that such damage would be mitigated by the presence of the way under such dedication.
This presents to us the question whether there was a dedication binding upon the company beyond its power of revocation. Is this substituted way a public highway? Can the company hereafter disavow the dedication and close up this substituted way ? A way may be a highway for some purposes and not for others. It is very certain that under our-statute, Code, chapter 43, section 31, declaring that every road, street or alley used and occupied as a public road, street or alley, shall be deemed to be a public one, mere user by the public however long continued will not make it a highway as regards the county or municipality, that is, to charge such county or municipality witn the burden of maintenance, or of liability for injuries arising from non-repair or defects. To make it a highway for those purposes our decisions are distinct that there must be shown action by the county court establishing, or in some way, recognizing the road as a highway, or it must be shown that it has been worked by a public surveyor of roads. An individual may la^ out a way upon his land for public use, and do all in his power t< dodicate it to the public use, and it may be accepted by the public by using it as such, but it does not thereby become a public highway so as to charge the county with the burdens above stated. It is true we find much law to show that by common law a dedication may be made by an owner of property, which if accepted by the public by long user, makes the way a public highway for all purposes, even to charge the public with its maintenance and with liability for its defects. Elliott on Roads & Streets, sec. 154; 2 Dill. Munie. Corp. sec. 642. But in this State our decisions do not allow the public use of a way to operate as an acceptance of a dedication so as to bind the county. Sampson v. Goochland Justices, 5 Grat. 241; Talbot v. King, 32 W. Va. 6; Ball v. Cox, 29 W. Va. 407; Yates v. West Grafton, 33 Id. 507; Dickens v. Salt Co., 41 Id. 511; Kelley’s Case, 5 Grat. 632. If an owner of land lays it out into streets, lots and
If time enough had elapsed to bar the company by reason of the adverse continuous, open user by the public, then this way wordd be a highway valid against the company in favor of the public. Then the public right would rest on the statute of limitations, not on dedication and acceptance. 9 Am. & Eng. Ency. L. (2d ed.) 67. But it is not shown that the period required to thus give title has expired. Thus I see no error in the refusal to give defendant’s instructions.
Another point of error is that after a witness had given his opinion that the plaintiff’s property had been damaged one-half, and stated that that opinion was based considerably upon the fact that the railroad company might close up the lot which had been opened, counsel for the defendant asked the witness the question, “If the company cannot close up its lot, and assuming that it will be left open for use, what would you sav would bo the decrease in value then?” and the court refused to allow the wdtncss to answer the question. This question is
The point is made by a second brief hied by counsel for the plaintiffs that a corporation cannot make a valid dedication for the reason that it can perform only certain functions, is incorporated to do only certain things, and cannot do other things not contemplated by its charter; in other words, that such an act would be ultra vires. Some English cases are cited to this effect; but in the immense ocean of conflicting and confusing cases, we can hnd authority for almost any proposition. It is very well settled by modern authority that corporations may dedicate land to the public use. Elliott on Roads & S. (2d ed.) sec. 146; 2 Elliott on Railroads, sec. 425. So it do not interfere with the purposes for which it was incorporated, a privato corporation may make a dedication. 9 Am. & Eng. Ency. L. (2d ed.) 33.
The point is made that two of the plaintiffs’ instructions assume that the plaintiffs were entitled to damages by the language that “the jury in estimating the amount of damages may take into consideration,” etc. I do not think this language assumes the right of recovery. Surely the jury would understand that the question of damages depended on evidence, and that it was with the jury to pass on such evidence, and that the court did not intend to express an opinion upon that point. We must not so lightly assume that a jury does not understand its functions, and .will so easily bo mislead in the performance of its duty. Besides, I think the language is very common in instructions telling the jury, how to estimate damages, and is not inapt or improper. And still' further, if these instructions taken alone were objectionable on that account, the objection would be obviated by the fact that another instruction for the plaintiff reads: “The court instructs the jury that if they believe from the evidence that the property of the plaintiffs has been permanently injured and its value depreciated by the laying and construction of the embankment and railroad track, and that the defendant constructed and laid, or had constructed and laid by its agents,
Plaintiffs’ instruction Ho. 3 as to the mode of assessment of damages is supported by principles contained in Stewart v. Railroad Co., 38 W. Va. 438; Blair v. City of Charleston, 43 Id. 62; Quinn v. Railroad Co., 46 Id. 151.
I should have noticed in its proper place the position taken by defendant’s counsel that rvlrat it did in occupying the streets and in their place dedicating a passage over its lot, was an exehang-justified by section 48, chapter 54, Code, 1899, providing that a corporation may take and hold “under any grant or ordinance made by a municipal corporation any interest or right such municipal corporation may have in any street, alley or public ground, and may in exchange therefor, in whole or in part, dedicate or otherwise secure to public use another street, alley or parcel of ground out of real estate owned by such railroad corporation.” How, it is apparent that there is no justification under this section, because there is no warrant for a railroad company to take a street and make such exchange, unless a statute allows it, and this statute docs not allow it, .because it in terms applies to incorporated municipal corporations, and contemplates a treaty of exchange between the two corporations evidenced by proper memorials of the consent of the municipality, if not of the actual dedication also. Moreover, under that section what the company did was not of such a character as to constitute such a dedication in such exchange, oven if the statute applied. Under that statute there must be an organized town in order to become a party to the exchange. It should be affirmatively shown that the exchange ivas declared by the directors of the company. It does not appear that the company did any acts or made any declarations expressive of such dedication at the time and constituting a valid dedication. There was no express dedication ; at best, only an implied dedication, -and the mere tearing down the fences on the lot, and the passage of 'people over it are not enough. Theró was no consent of the county court.
Therefore we affirm the judgment. '. ¿ 1
Affirmed
Rehearing
Upon, rehearing it is argued that the above opinion does not correctly interpret the evidence o£ the general manager.
That evidence reads: “C. L. Bretz, general manager of the West Virginia Central and Pittsburg Railway Company, operating the railroad of the defendant company ever since its construction in 1886 or 1887, being introduced as a witness on behalf of defendant, testified that about the 'time of tile lajdng of the tracks in the streets aforesaid, the defendant company purchased said lot Ho. 55 for a street or way for the public across it, in the room and stead of the streets occupied by the company’s tracks, and that the defendant, in pursuance of that purpose, took down the fence from around said lot, and threw it open tc the public to be used in lieu of said streets, though no street or roadway was actually constructed or thrown up and that the public had so used it ever since in the condition so thrown open, and other witnesses, both on behalf of the plaintiffs and defendants, testified that since the construction of said tracks in the streets aforesaid the public had used said lot Ho. 55 as said streets had been used before that time, (page 36). It is admitted that the defendant introduced no writing purporting to be a formal dedication of said lot Ho. 55 to the use of the public.” It is said that this evidence does not warrant the inference that the acts claimed of as effecting a dedication were done only by the general manager or some agent. As no action of the coinjoany was shown or suggested, I still think the interpretation given this evidence is a fair one. p But let us take this evidence for all its worth on the lino argued by counsel; which is that the witness said that "the defendant company” purchased the lot for a street, and that "the defendant” in pursriamce of the purpose to make a street upon it took down the fences. Counsel argues that this language imports, not the acts of a mere agent, but the action of the very company itself, and that though this is not the primary evidence to show dedication, it was not objected to, and no objection can be made to it in the Court of Appeals. B. & O. R. Co. v. Skeels, 3 W. Va. 556. Our question is not one of the admissibility of this oral evidence. The evidence not hav
In fact is it not more plausible to say, that if the manager did not merely mean that he or some other agent made the dedication, he was giving his own mere opinion that what the company had done, constituted a dedication. If so, he may be mistaken. As wo axe asked to say in advance that for all future suits there was a final dedication we must demand evidence beyond all
But it is argued that even if this oral evidence does not show dedication, the fact that on the trial the railroad company took the position that it had dedicated, was an admission of that dedication, and constituted 'ever after an estoppel against its denying such dedication, and this on the principle that when a party once takes a position in a suit he can not afterwards change and take an inconsistent position; that the company could not say in the trial that it had dedicated a way over the lot, and in future deny it. It' is very material to see whether the position so taken would be an estoppel absolutely forbidding the company from afterwards contesting dedication, or only an admission going in evidence to have only such weight as a jury might thereafter give it; for if it be not an estoppel we cannot bind the plaintiffs by it, as they must be left free from danger of revocation of. the dedication. I do not regard it such es-toppel, though as evidence it might be strong in another contest. Wilson v. Phoenix, 40 W. Va. 413. In Beatty v. Randall, 5 Allen 44, it was held that a party in an action of tort for conversion of personal property was not estopped by the fact that in a bill in equity by himself and wife they asserted a joint property in himself and wife. “The pleadings of a party to one suit may be used in evidence against him in another, not as an estoppel, but as proof open to rebuttal and explanation. But in order to bring such admission home to him the pleadings must either be signed by him, or it must appear that it was within the scope of the attorney’s authority to admit such facts.” Buzzard v. McAnulty, 77 Texas, 438. On one trial between the same parties counsel admitted incorporation of his client, and it was held that it did not estop a denial of incorporation on a second trial, but that it was evidence as an admission. Perry v. Simpson Co., 40 Conn. 313. A party in an answer made a statement, and it was held that parties claiming under her were
In the second case a party sued at law upon a written contract offered evidence to show that it was not intended to be binding, which on motion of the plaintiff was rejected as incompetent to destroy a writing; afterwards on a bill to enjoin the prosecution of the action at law the plaintiff in the action was held estop-ped from saying that the evidence was admissible in the law action. Here too, the party got the benefit of the position which he assumed. Where a party takes a position and games its fruit, and thus detriments another, he cannot go back on it.
'There is another objection to holding that the plaintiffs can securely rely upon the defence made by the company as their protection in future against its denial of a dedication. There was no plea of such dedication, nothing of record to signally and explicitly manifest that the company admitted as a binding fact the fact of dedication. It simply gave some evidence to show it and asked instructions upon the theory of dedication. The es-toppel is inferential, not so plainly manifested as if in an answer . or plea. “Certainty is essential to all estoppels.” Bigelow on Estop. 578.
Another consideration detracting from the argument that the position of dedication taken by the company works an estoppel is, that it was taken by an attorney. The company was a corporation not physically present, but was represented by an attorney. Ho resolution of the directory empowering him to admit a past dedication, or then make a new one at the'trial, appears. An attorney is a special agent, of limited authority, lie may make admissions in matters relating to the progress of the particular trial or case; but do they bind clients elsewhere and for other purposes? Can an attorney in defending a suit by taking a position or pleading admit a dedication to take away, not merely for the purposes of that suit, but for other suits, the land of a corporation? “Pleadings of a party in one suit may be used in evidence in another, not as an estoppel, but as proof, open to rebuttal and explanation, that he admittéd certain facts.” 1 Whar. Ev. sec. 838. Statements in pleadings signed by an attorney only, not sworn to by the client, are not competent evidence against the latter in an other suit when the statements are made without his knowledge or consent.” Note 1 in 1 Am. & Eng. Ency. L. (2d ed.) 720.
It seems to me that there is a difference between an attorney of a corporate and a natural person. Acts of the attorney outside the scope of his authority are not binding on his client. Even in the ease of a natural person, the power of an attorney is only to do those acts necessary or incidental to the prosecution and management of the suit which affects the remedy only, and not the cause of action. Weeks on Attorneys 382. Hence he cannot waive the essential rights of his client without his consent. He cannot enter a retraxit, commute or compromise his demand, receive pay in anything but money and the like. Crothy v. Eagle, 35 W. Va. 143; Wiley v. Mahood, 10 Id. 206. As