36 W. Va. 427 | W. Va. | 1892
At the October rules held for the Circuit Court of the county of Jefferson in 1888, Daniel B. Lucas filed his bill in equity against the Smithfield, Charlestown & Harper’s Perry Turnpike Company, in which he alleged that he was the devisee of the late William Lucas in the month of August, 1877, who left a will which was duly probated,
The defendant demurred to the plaintiff’s bill, and also answered the same, putting in issue all of the material allegations of the bill. Several depositions were taken by both plaintiff and defendant, and several affidavits were also filed, andón the 28th day of February, 1890, a'decree was rendered in said cause, dissolving said injunction, and on the 8th day of December, 1890, another decree was entered therein, dismissing the plaintiff’s bill; and from these decrees the plaintiff’applied for and obtained this appeal, wdiicli action of the court is assigned as error.
It appears from the evidence in the case that the defendant turnpike company’s road was built from Charlestown to Harper’s Ferry, passing through the lands of the late William Lucas, in the years 1830 and 1831, and by the terms of its charter it was made subject to the provisions of the act entitled “An act prescribing certain general regulations for the incorporation of turnpike companies,” provided that the said company should not be compelled to make the said road more than fifty feet wide, or the summer or side roads more than fifteen feet each ; and section 16 of chapter 234, 2 Code 1819, which contains said act, pi’escribing certain general regulations for the incorporation of turnpike companies, provides that “in consideration of the expenses which the proprietors will incur in opening, improving and repairing the said road, with all the tolls and profits, shall be and the same is hereby vested in the respective proprietors forever, in proportion to their respective shares.”
It appears also that this turnpike road was located through the lands of said William Lucas on the site of an old State road which was thirty feet in width. So that, in constructing said turnpike in accordance with its charter, it was necessary to widen the old road twenty feet. The road passed through the lands of said William Lucas for one mile, taking a strip of his land twenty feet in width, an area of about two acres.
1 Greenl. Ev. § 109, says : “In regard to the declarations of persons in possession of land, explanatory of the character of their possession, there has been some difference of opinion, but it is now well settled that declarations in disparagement of the title of the declarant are admissible as original evidence. Possession is prima fade evidence of ‘seisin in fee simple; and the declaration of the possessor that he is tenant to another, it is said, makes most strongly against his own interest, and therefore is admissible. But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title or otherwise qualifying his possession, if made in good faith, should not be received as a part of the res gestee, leaving its effect to be governed by other rules of evidence.”
So, also, 1 Whart. Ev. § 203, says: “Evidence of the declarations of a party taking possession of property may be received as explaining the nature or limitations of such possession.” And in section 264 he says : “What is done is part of the res gestee, as much as what is said.”
The declarations proven by the testimony to have been made by William Lucas were explanatory of his acts in daily passing over ' this road to and from the town of Charles Town, with his teams and family and servants, without payment of toll on said turnpike road; and every time he or one of his family or servants passed over said road without paying toll, and without toll being demanded of them, during the forty six years of his life, which transpired between the date of the construction of said turnpike road and his death, it was a mute assertion on his part, and concession on the part of the agents of the road, of his right to pass toll free over the same.
Elliott, Loads & S. p. 71, lays down the doctrine that “the right to toll generally may be waived by contract ;” and in the case of Com. v. Allegheny Bridge Co., 20 Pa. St. 185, it was held that it was not ground of forfeiture of the charter of a bridge company that less tolls are charged than are authorized by law. The tolls may be commuted for an annual sum, if the charter do not forbid it, and if done with an honest purpose.
And in the case of Park v. Turnpike Co., decided in 1888 in the Court of Appeals of Kentucky, and reported in Book 1, Lawy. Rep. Ann. 198 (9 S. W. Rep. 252) the facts presented are very similar to those in the case at bar; and section 1 of the syllabus reads as follows: “A turnpike company to which plaintiff orally sold land in consideration of the right to himself and family to pass perpetually through certain tollgates free of charge, which right he exercised for over fifteen years, can not rescind the contract because not in writing.” That one who purchased all the stock of a turnpike company can not repudiate a contract previously made giving to a certain family free passage perpetually ; and the fact that his family had increased, could make no difference with the question of the right of the party to rescind.
The court, in its opinion, says : “The corporation has been in the undisputed use and possession of his land un
Whatever may have been the consideration paid by said William Lucas for the privilege of passing over said road, to be exercised by himself and his tenants when on his business, the letter dated July 31, 1850, signed by John Yates, the president of said company, and addressed to said William Lucas twenty seven years before his death, clearly recognized such right. It is clearly shown by the testimony of the plaintiff that he and his brother went to school near the town of Charlestown, passing twice a day, commencing in the year 1847, through the tollgate now kept by said Burkit, and no toll was either paid or demanded, and that from 1847 to the date of said William Lucas’ death, in 1877, no toll was paid by any of the family, servants, tenants, or employes living on said land; that this free passage was claimed as a right, and aequiesed in as such by the company and its toll keepers.”
And the fact that the privilege of passing said tollgates free was accorded to the tenants' occupying the lands of said William Lucas, and to the members of his family, tends very strongly to show that this privilege was not a mere easement in gross, as we find that it is said in 6 Amer. & Eng. Enc. Law, p. 140, that “an easement in gross is attached to the person alone, and can not be assigned to another.”
Returning again to the question as to whether, under all the circumstances of this case, we must presume that a contract was entered into between the said William Lucas and said turnpike company, we find that, in a court of equity, it is not regarded as material that such contract should be by
In support of this proposition we fihd that in the case of Lydick v. Railroad Co., 17 W. Va. 427, which was exhaustively considered by the court, it was held (second point of syllabus) that “a parol contract, whatever is its character, can not, at law, run with land; but if a parol contract is of such a character that it would, if it were a covenant, run with the land, and be a covenant real, such parol contract will be regarded by a court of equity as running with the land, audit will, at the instance of the party who owns the land and has acquired it under the covenantee, whether he holds the legal or equitable title, enforce specifically such contract.”
The facts in that case were as follows: A right of way through land was granted to the railroad company, and in the deed, as a consideration for such grant, the railroad company covenanted with the grantor, his heirs and assigns, to build and forever maintain a switch from said railroad to a mill on the land for the use of said land; and it was held that this was a covenant real, that ran with the mill, and it was also held, in the seventh point of syllabus, that, “if such grant of a right of way and contract for such switch were only verbal, such contract would in a court of equity be regarded as running with the mill, and its specific performance would be enforced in favor of the future owner of the mill, holding title, legal or equitable, under the original covenantee.”
Counsel for the appellee seeks in his argument to show that a turnpike road is to be regarded as a public easement, .and not as the owner of the land over which it passes, and therefore incapable of supporting an easement; but, as we have seen, under the statute in Virginia (section 16, c. 234, 2 Code 1819) it is provided that “in consideration of the expenses the proprietors will incur in opening, improving, and repairing the said road, with all the tolls and profits, shall be, and the same is hereby, vested in the respective proprietors forever, in proportion to their respective shares.” ’
If, then, the company is the owner of the road, and entitled to the tolls, why might they not pay for right of way
That such a contract, was made between said William Lucas and said company is clearly shown by the conduct of said William Lucas, his family, tenants, and servants, in passing through the tollgates during his lifetime, which continued for forty six years after said road was coustruct- ■ ed, and by the same course being continued by his son, his family and his tenants, for eleven years after the death of his father; said right during all that time being acquiesced in by the collectors of toll on said road, and clearly recognized by the president of said road in his letter to said William Lucas, in which he says, in speaking of the tenant, “when he is on your business, we allow the claim.”
This letter, it will be remembered, was written twenty seven years before the death of said William Lucas, and we find that Angelí on Highways, on page 486 (3d Ed) says, “Individuals or the inhabitants of a particular district who have for more than twenty years been permitted to pass a turnpike gate toll free may, it has been held, prescribe for a right so to pass,” citing numerous authorities.
Under the word “prescription,” Webster, in giving the legal meaning, quotes from Bacon as follows : “A prescribing for title; the claim of title to a thing by virtue of immemorial use and enjoyment; the right or title acquired by possession had during the time and in the manner fixed by law.”
Goddard on the Law of Easements (page 134) says : “Prescription is described by Mr. Justice Blackstone as meaning, at common law, a mode of acquiring real property, when a man could show no other title to what lie claimed than that he aud those under whom he claimed had immemorially used to enjoy it. The reason why the law allowed a title to be thus acquired is that if a man had (to use an old and familiar phrase) enjoyed an easement from time whereof the memory of man runneth not to the
The demurrer filed by counsel for defendant was not insisted on in argument, and, if it had been, we think the cases cited by counsel for the plaintiff, viz., High, Inj. § 886; Shipley v. Caples, 17 Md. 179; Mason v. Bridge Co., 17 W. Va. 396; Berkeley v. Smith, 27 Gratt. 892 ; and Eden Inj. 237 — clearly show that the plaintiff is in the proper forum.
That there was a covenant between the said William Lucas and said company is fairly to be presumed from the conduct of the parties for so many years; and, as we have seen, it is immaterial whether the contract was verbal or in writing, since the circumstances clearly indicate that the contract was of such a character as to constitute it-a covenant running with the land. Had such not been the case, William Lucas, and his family and his servants and tenants, would never have been allowed for so many years to pass over said road free of toll.
Applying the law which we have quoted to the facts proven in the case, our conclusion is that we are bound to presume that said William Lucas exercised said right, not as an easement in gross, but under a covenant entered into at the time of the construction of said road, for a valuable consideration, and that said covenant was not merely personal, bnt ran with the laud ; that, as contended by counsel for the appellaut, said easement had ripened into an indefeasible prescriptive right many years before his death, and
For these reasons the decrees complained of must be reversed, and, it appearing that the plaintiff was entitled to the relief prayed for, this Court proceeding to render such decree as should have been rendered, it is ordered that said injunction be perpetuated ; and the appellee must pay the costs of this appeal.
Reversed.