93 W. Va. 16 | W. Va. | 1923
The purpose of plaintiff’s bill is to enjoin the county court and the municipal authorities of the city of Elkins from building and permanently improving what is known 'as Livingstone Avenue in the city of Elkins. The bill charges that the defendants, without notice to the plaintiff, are proceeding to take its land for public use without having paid just compensation therefor or without having secured such compensation to be paid, and without its consent and permission; and intend to use the same for public road purposes. The bill charges that plaintiff is the owner of a parcel of land in said city acquired by it from W. G. Wilson, by deed dated the 30th. day of June, 1905, and which is correctly described as bounded on the north by land of Andrew Taylor, on the east by the county road, on the south by property lately purchased by the Kendig & Hall Cooperage and Manufacturing Company and on the. west by W. Va. C. & P.
It will be seen that the main controversy is over the proper location of the county road which is now being improved as Livingstone Avenue. Surveys and maps were made by engineers of the lines and distances of abutting property on the road in controversy, and in the near vicinity of plaintiff’s lot, and the road was attempted to be surveyed and located by the original calls and by its actual location when established; and numerous depositions were taken in an attempt to locate the road as originally established. The lower court, after full hearing, dissolved the injunction and dismissed plaintiff’s bill, and in the decree awarded $100 as and for attorney fees for the defendants and against the plaintiff. From this decree ' this appeal is prosecuted; and it is claimed that the lower court erred in dissolving the injunction and dismissing the bill without establishing the true location of the road in controversy; and that it was error to allow'to the defendant an attorney’s fee of $100 to be taxed as a part of the costs of the suit.
Omitting the calls from the Tygarts Valley river to the Taylor land, the report of the viewers shows the location of the road through the Taylor land as follows: “S. 76° E. 10 poles, N. 87y2° E. 3 poles, N. 33° E. 24% poles, N. 45° E. 98 poles.” The 98-pole line is the one in controversy in this suit. The evidence shows that the original survey for the road began at Tygart’s Valley River near where there is now a concrete bridge. The road from the river up to the S. 76° E. 10 poles line was not run by the surveyors, there having been many changes made in that part of the road since it was first surveyed and laid out. This line began at the Scott-Taylor line, where Surveyor Parsons took the center of the traveled roadway and ran. the original calls with 1° 24' variation, which he says is the proper variation from the date of the original calls. He did not hit the traveled road; the end of the 87%° E. 3 poles line was on the eastern side of the traveled way in the field- east of some apple trees; the
The witness Scott, who did the original grading of the road, says it is his recollection that the new, road when laid out took the place of the right of way which Taylor was to furnish Gabbert to the county road, and that when it was laid out it touched the brick yard lot for a distance of about 16 feet near where the planing mill company’s office is at present, that the road was built so as to connect with the brick yard lot (a part of the Gabbert lot), but that the traveled road now is east of -that location; the road first built topped the hill at the- Taylor-Scott line about where it is now; that the road in being built was changed by agreement of the adjoining land owners, in at least three different places, one over the top of the hill between Scott and Taylor, another, he thinks, opposite the planing mill and the plaintiff’s lot, and still another near the apple and plum trees in Taylor’s field, which is near the end of the ten-pole line; that these changes were made from the original survey of location, with the consent of the road commissioner; that the road was located (or built) touching the Gabbert lot 16 feet, which was for the purpose of meeting Taylor’s obligation to Gab-bert to give him a right of way to the public road as shown by the deed to him dated one year before the road was located.
■ Engineer Kress says that the calls of the viewers do not cheek with any survey of the adjoining lots as now recorded; that if the calls of measurement from Tygarts Valley River bridge, or the concrete bridge, at Scott’s Ford, were followed exactly they would throw the road opposite plaintiff’s property, about' 90 feet east of the Gabbert lot, or about 60 feet east of the present road, which would be in the Taylor field, now owned by Elkins Manufacturing & Improvement Co-., that if the original calls were followed it would not connect the road with any of the determined points, especially the Gulland-Clarke point indicated in the calls in the deed to
The old road was not built on the location made by the viewers, if the road was intended to be made by .their calls,, only in a general way. Witness Scott’s recollection is that the changes were made with the consent of t]ie road commissioner, and the abutting owners, and there is no- evidence to contradict this. Parsons, in a measure, confirms this view.
We have given the substance of the evidence of the surveyors, somewhat extended, with a view of showing the uncertainty of the location of the road either by the original calls’, or by the manner and places where actually constructed. It seems that not much attention was paid to the location of the road in accordance with the calls. Taylor and the other abutting land owners caused changes to be made when the road was laid out and constructed, with the consent of the road authorities; but taking the arbitrary point at the deep cut hear the Taylor-Scott line where the road was originally built and a deep cut formed for that purpose and from which there appears to have been no change, and taking the arbitrary point at the Gulland-Clarke corner, which appears to be agreed upon as correct, and running the line between these arbitrary fixed points on about the same degree as that of' the line of the viewers between these points, it would seem that the present improvement lies within the
Is the decree erroneous because it includes as a part of the costs recovered against plaintiff an attorney’s fee of $100? The amount is below the sum from which an appeal can be taken, and cannot be considered as cause for reversal, but this court having taken jurisdiction upon other points of alleged error will review and correct all matters in controversy although merely pecuniary and less than the jurisdictional amount. Bee v. Burdett, 23 W. Va. 744; Code, chap. 135, sec. 6. • It is argued by appellees'that the suit being for nothing else than to obtain an injunction, the court properly allowed in its decree recovery for a reasonable attorney’s fee and should do so rather than to compel a proceeding on the injunction bond. It is argued that this allowance as a part of the costs is in no sense the fee which by section 13 of chapter 138 of the code limits the sum in chancery eases to $20; that this allowance is intended as a compensation for services
The decree is modified by striking out the item of $100 therein allowed to defendants to be taxed as part of the costs of the suit; in all othefi respects it is affirmed.
Modified and affirmed.