124 Va. 592 | Va. | 1919
after making the foregoing statement, delivered the following opinion of the court.
The argument in this case has covered many subjects: and the law bearing upon the essential requisites in such a case as this, both of a dedication on the part of the land owner and ian acceptance on the part of the public, jvhether actual, or implied in fact or in law, or dispensed with by law, has been ably discussed by learned counsel on both sides of the cause and numerous authorities have been cited. But after all we find but little difference between counsel as to the legal principles involved. They differ for the most part as to the facts and as to the application thereto of well settled legal principles.
Confining our consideration, therefore, to the question of dedication, with the exception of what is hereinafter said concerning the right by prescription which is also relied on by the city, and concerning certain questions of evidence, we shall consider the positions taken by the parties and pass upon the questions raised by the assignments of error in their order as stated below.
Section 24 of the charter of the city of Richmond (Acts 1869-70, p. 120, 128), so far as material to the question under consideration, provides as follows:
“24. Whenever any * * alley * * shall have been opened to and used by the public for a period of five years, the same shall thereby become a * * alley * * for all purposes, and the city shall have the same authority and jurisdiction over and right and interest therein, as they have by law over the * * alleys laid- out by it. *
■ The following authorities are cited to sustain the position of the city that such charter provision is conclusive that there was a dedication in the case before us, namely: 3 McQuillin Mun. Corp., sec. 1303; Bolger v. Foss, 65 Cal.
It is undoubtedly true that city charter provisions such as that above quoted are valid as statutory law, and where the provisions apply they are conclusive evidence of dedication.
In all of the cases cited and above named, however, the public user was unequivocally a public and an adverse public user for the statutory period before the private use in suit was sought. These authorities go no farther than the holding that such a public user, by virtue of statute giving mere public user such effect, dispenses with all need of evidence of an actual dedication, and that the defense that there was no dedication in fact is not available to the landowner in such a case.
Moreover, all of the said authorities involve charters or statutes which contain merely the provision that a user by the public for the period prescribed therein shall, in substance, confer a right of way upon the public.
In the charter provision we have under consideration something more is added, namely, that the alley must be “opened to” as well as “used by the public,” for the period named therein, before the provision becomes operative. This added provision must be given some meaning, and it differentiates the case before us from those covered by the authorities cited on the point. Such provision is similar to that of the charter of the city of Brooklyn, which is construed in Strong v. Brooklyn, 68 N. Y. 1. That provision is as follows : “That all streets and avenues in said city which have been or may be thrown out to public use, and have been or may be used as such for five years continuously, should be deemed public stress and avenues, and that the city of
We are of opinion that the charter provision of the city of Richmond under consideration should receive the same construction.
The question under consideration must, therefore, be answered in the negative.
Under all of the authorities the user must be under a claim of right and must also be unequivocally adverse in order that the public may acquire the right in question by prescription. 22 Am. & Eng. Ency. L. 1190, 1192; Jones on Easements, sec. 267; 3 McQuillin Mun. Corp., sec. 1299; 1 Elliott on Roads and Streets, sec. 194; Skeen v. Lynch, 1 Rob. (40 Va.) 186, 194; Horris’ Case, 20 Gratt. (61 Va.) 833; City of Richmond v. A. Y. Stokes, 31 Gratt. (72 Va.) 713; City of Richmond v. Gallego Mills, 102 Va. 165, 45 S. E. 877.
As we shall see below, such adverse user did not exist in the case before us, and, hence, this question must be answered in the negative.
3. Are the following named deeds in the chains of title of lots abutting in the rear on said alley, other than the Keppler lot (with the owners of which appellants are not in privity), and the provisions in such deeds quoted below, admissible in evidence against appellants ? And, if so, what is the effect of such evidence?
(a) The first mention which we find in the record of
It is necessary for us to decide in this cause whether such alley was the former or the latter character of alley. We shall hereinafter refer to it as the old alley or alley in common. So considering it, the right of use of it was at the least an easement which was appurtenant to lot 627, as well as to the other lots on both sides of such alley and abutting thereon, including the Keppler lot.
This alley was, as aforesaid, referred to in a number of the conveyances establishing it as being a “10 foot alley,” but as explained in the above statement, it was in fact approximately twelve feet wide as located on the ground in accordance with such conveyances. The deed of Hirsh aforesaid, however, contained the following language in its description of the metes and bounds of lot 627, viz; “bounded on the south by an alley, which separates the premises hereby conveyed from the lot of said McFarland, but the southern line of the premises hereby conveyed shall be extended ten (10) feet further south to the centre of said
At the time of the Hirsh deed the' Keppler lot belonged to said John B. Richardson but was not conveyed by said deed of trust under which the deed to Hirsh was made.
At such time the situation also was that much more than eleven feet of the rear end of the Keppler lot was vacant and doubtless uninclosed. There was then an open space across the rear end of the Keppler lot much wider than eleven feet.
And we find within the clause of the Hirsh deed itself above quoted the rebuttal of any inference which might otherwise be drawn therefrom that the ten feet in width to the north of the old alley aforesaid, to which it refers,
Subsequently, the deed of 1851, quoted from in the statement preceding this opinion, conveyed the Keppler lot by metes and bounds, which, by. well established rules of construction of deeds, extended the lot back to the old alley; and such deed furnishes convincing evidence that up to the date thereof, in 1851, there had been no dedication by the owners of the Keppler lot of the strip of land in controversy for use as a public alley, or any appropriation of it by them as :an alley in common.
(c) The city also relies upon two deeds in the chain of title of the Young Men’s Christian Association to that portion of its real estate shown on the plat preceding this opinion which is on the corner of Grace and Seventh streets, and extends back to said long existing old alley on the opposite side of it from the strip of land in controversy in this cause; one of such deeds being of date December 2, 1861, and the other of date January 16, 1868, which describes the lot conveyed as running back a certain distance to “a wide paved alley.”
We come now to consider the principal question involved • in this cause, and that is—
Since, as we have above seen, neither its charter provision above mentioned nor prescription has conferred upon the city of Richmond or the public the easement in question, the city must rely upon a common law dedication. There are two classes of such dedications, express and implied. The intent to dedicate is essential to both classes in order to complete a dedication. The city in this cause must rely upon an implied dedication, since there is no evidence tending to show that there was ever any express dedication. An implied dedication is not founded upon a grant, nor does it necessarily pre-suppose one. It is founded on the doctrine of estoppel in pais. 1 Elliott on Roads and Streets, sec. 132-7; Benn v. Hatcher, 81 Va. 25, 29, 59 Am. Rep. 645; City of Norfolk v. Nottingham, 96 Va. 34, 30 S. E. 444; 2 Greenleaf on Evidence (2d ed.), sec. 662; and many others of the authorities elsewhere cited.
In the cause before us we cannot inquire or decide whether the doctrine of estoppel aforesaid is-applicable in favor of any private owners of lots abutting on the alley in question, since no such parties are before us. With respect to the city, the facts- in evidence disclose that the city has acquired no property nor made any expenditure on the faith of the strip of land in controversy being a public alley or a part of such an alley. The.sole ground on which it must rely in this cause for the application of said doctrine of estoppel is the long continued user by the public, as it claims, of said strip of land as a public alley or as a part thereof.
As said in Harris’ Case, supra, 61 Va. (20 Gratt.) at p. 840: “Where no public or private interests have been acquired upon the faith of the supposed dedication, the mere user, by the public, of the supposed street or alley, although long continued, should be regarded as a mere license, revocable at the pleasure of the owner; unless, indeed, there be evidence of an express dedication; or unless, in connection with such long-continued user, the way has been, by the proper town authority, recognized as a street, so as to give notice that a claim to it as an easement was asserted.” (Italics supplied.)
Since 1911 the facts leave no room for any presumption of dedication, and no claim is made on the part of the city that any dedication occurred since that time.
And with respect to the user by the public of the land in controversy, the whole of such user is satisfactorily accounted for by the existence of the old alley aforesaid adjacent thereto, without the need for any implication of a dedication of such strip to public use. Whether that alley was a public alley, or merely an alley in common appurtenant to the abutting property, is immaterial on that subject. Indeed, to what extent public use was made of said strip itself is left vague and undetermined by the evidence. Much of the public user in question was doubtless of the old alley aforesaid; and such of it as invaded the strip of land in controversy, the evidence leaves equally consistent with being a user permitted by the landowners for their own private advantage, or a user in common with their private use, as with its being an adverse user by the public. Such public user, therefore, as there may have been was not, as aforesaid, unequivocally such, but the contrary. The act of the appellants and those under whom they derive title, in assenting to such public user was, therefore, not unequivocal in its meaning.
There are many other facts and circumstances in evidence not mentioned in this opinion or in the statement preceding it, which would tend to strengthen, and none of
We conclude, therefore, that the question under consideration must be answered in the negative.
For the foregoing reasons, we are constrained to reverse the decree complained of, and we will enter a decree to the effect that we are of opinion that a preponderance of the evidence in the cause sustains the bill, and shows that no dedication to the public has been made of the eight-foot strip of ground in the bill and proceedings mentioned; that the appellants are the owners in fee of such strip of ground, as against the city of Richmond and the public; and that such city be perpetually enjoined and restrained from interfering with, the rights of the appellants therein and thereto.
Reversed.