The plaintiff in this action of forcible and unlawful entry and detainer, in whose favor a verdict was found by direction of the court, has fully proven his title in fee, to the strip of land, in which the defendant claims a public easement. This strip, only 30 feet wide and about 180 feet long, r-uns from on’e street to another and the whole thereof is claimed by the city as a street. The issues relate solely to the remedy invoked and dedication and acceptance of the easement.
Denial of the fight to invoke the remedy is predicated, not upon inappropriateness thereof in a controversy between an owner of land and a municipal corporation claiming it as a highway or street, but upon the ground that the duration of the defendant’s possession of the land in controversy precludes unlawful detainer and makes ejectment the proper remedy, by virtue of secs. 1 and 3 of ch. 89, making three years possession a bar to the former action. As to the duration of the city’s alleged possession of the property, the evidence is conflicting. Though practically all of the strip has been open and used to some extent by the general public, the evidence adduced by the plaintiff is to the effect that such use was merely permissive and of the kind usually made, of vacant or unoccupied lots. The witnesses deny that the city ever exercised any authority over it, or claimed any right in it, so far as they know, until after the
A more serious question, however, is whether or not the remedy is appropriate, — whether either unlawful detainer or ejectment lies between the owner of porperty and a municipal corporation claiming it as a public street or highway. Under our law, unlawful entry and detainer is substantially the same, with few exceptions, as common law ejectment which does not necessarily go to the question of title. Camden v. West Branch Lumber Co., 59 W. Va. 148, 158. • The cases relating to the right of a corporation to maintain ejectment for possession of a street or highway against any person withholding it are collected in a note to Canton Co. v. Baltimore, 11 L. R. A. (N. S.,) 129. In Maryland, Kentucky, Georgia, Michigan, Hew York and Wisconsin, ejectment has been held not to be an appropriate or available remedy in such cases, unless the corporation owns the fee in the land. Canton Co. v. Baltimore, cited; Coving-ton v. Freking, 8 Bush. 121; Savannah v. Steam Boat Co.. R. M. Charlt. (Ga.) 342; Grand Rapids v. Whittlesey, 33 Mich. 109; Southampton v. Betts, 163 N. Y. 454; Northern Turnp. Road Co. v. Smith, 15 Barb. 355; Racine v. Crotsenberg, 61 Wis. 481. These decisions are based upon the theory that the city or corporation has only an easement in the land and the legal proposition that ejectment does not lie for recovery of an incorporeal right. On the other hand, there are, other numerous cases in which, in view of the exclusiveness of the right of the city and its complete dominion over its streets or public grounds-, it has been held that ejectment may be maintained against any person occupying any of them and withholding possession thereof San Francisco v. Grote, 120 Cal. 59; Visalia v. Jacobs, 65 Cal. 434; Southern P. Co. v. Burr, 86 Cal. 483; Eureka v. Armstrong, 83 Cal. 623; Eureka v. Fay, 107 Cal. 166; Napa v. How-land, 87 Cal. 84; Chicago v. Wright, 69 Ill. 318; Lee v. Harris, 206 Ill. 428; Bummer v. Den, 20 N. J. L. 86; Hoboken etc. Co. v. Hoboken, 36 N. J. L. 540; Price v. Plainfield, 40 N. J. L. 608; Weger v. Belran Twp., 61 N. J. L. 224; Ocean Grove etc. Ass’n. v. Berthall, 63 N. J. L. 312; Hohokus Twp. v. Erie R. Co., 65 N. J. L. 353; Asbury Park v. Hawxhurst, 67 N. J. L. 582.
Inappropriateness of unlawful detainer and ejectment in cases in which the owner of the fee seeks relief against the exercise
The lot in controversy is a part of a two acre tract conveyed to Jesse H. Woodrum by Joseph Davidson and wife by a deed dated, January 23, 1888.' Woodrum conveyed one acre of it to Barbee, Tierney and Peck, who later .conveyed one-third of. it to Levering and he conveyed it to J. A. B. Bruce and F. A. Bolin. They together with Straley and Karnes divided the acre into lots and sold them. Bolin and Bruce bought one of the, lots adjoining the strip of land in controversy and fronting on Mercer Street. On this lot, they erected a building in which Bruce resided for many years and in .which they carried on a mercantile business. The lot line did not run at right angles with Mercer Street, but they erected their building at right angles therewith, wherefore the front of it came to the line, of their lot, and the rear did not. Along the south side of the building, they put up and maintained a porch which extended beyond their line and over the northeast corner of the land in controversy. This porch extended back to an opening in the. building giving access to a portion thereof used in the sale of groceries. It, as well as the vacant ground, was used in supplying the,ir store with groceries and goods and their customers were permitted to use it. They say they occupied the land in controversy by such and other similar means, with the consent of their cotenants, Straley and Karnes. In their division of the acre, into lots, they ran a ten foot alley entirely through it and between lots- fronting on Mercer Street and lots fronting on Peck Street, the south end of which had no outlet, unless the thirty foot strip was intended for a street. It ended at the line of another one acre tract which Woodrum had conveyed to P. H. Rorer. West of this alley, fronting Peck Street and adjoining the land in controversy, there is another lot which was conveyed to one Robinett who erected a mercantile house on that corner, as well as a small tenement house in the rear thereof, the latter fronting on the thirty foot strip of land. The arrangement of his buildings indicates that he regarded it as a street. P. T.
There is no proof of any express formal dedication of the land to street purposes or any other. If there was a plat made, designating it as a street, that fact has not been shown by-evidence. The acre was divided into lots and sold and an alley laid out between them. The dedication of this alley is not denied, except in so far as it extends through this part of the land. TTev-’ ertheless, adjoining property owners seem to have built and improved their property under the impression that they owned corner lots. Bruce and Bolin themselves constructed their building as if they intended the rear or side opening to be upon a street. Although their shed or porch extended over the line, it is not uncommon for owners to build sheds over sidewalks, nor to lay down board sidewalks in front of their property. Robi-nett and Lilly built as if it were a street. Hone of these acts however, were done on behalf of the public. In favor of adjacent owners, the land might be subject to private easements, and yet not be a public street. Cook v. Totten, 49 W. Va. 177. These acts of lot owners were only slightly probative,-if at all, of dedication. After Bolin and Bruce bought the lot on which they built, their interests were to a certain extent adverse to those of Straley and Karnes. They could not dedicate so as' to bind their cotenants. It is manifest, too, that no act of Robi-nett or Lilly would bind the owners of the land in controversy. Moreover, the conduct of the owners, in permitting the land to lie open, with knowledge of the impression under which Robi-nett, Lilly and Bolin and Bruce were acting, may have amounted to nothing more than a license to use the land in certain ways,
In our opinion, the evidence adduced in support of the, city’s claim would not suffice to sustain a verdict in its favor, where
Affirmed.