142 S.E. 841 | W. Va. | 1928
The plaintiff herein appeals from a decree dissolving a temporary injunction restraining the city from paving an alley abutting on his property, and dismissing the bill.
By a deed dated 1884, the heirs of Wm. Goshorn, Sr., partitioned their property on the corner of State and Summers Streets in the City of Charleston into seven lots, with the alley in question running from State Street between the lots to the opposite property line. A map was recorded with the deed on which the alley is designated "Alley 12 ft. Wide". Plaintiff is now the record owner of Lots Nos. 1 and 7.
The city takes the position that the alley is public because of dedication and acceptance, prescription, and section 3, Chapter 43, Code. It also contests the right of plaintiff to maintain this suit on the ground of non-assessment and nonpayment of taxes on the alley, and lack of equity.
In support of its position, the city introduced evidence showing that when State Street was sewered and paved, the cost of the portion abutting on the alley was not assessed against any property owner, but was paid for by the city; *397 that a sewer put in the alley by an owner of one of the lots abutting thereon was graded by the city engineer; that the alley as such has not been entered for taxation; that Lot No. 7 has been off the land books for more than twenty years; that a small amount of work was done on the alley by the city about fifteen years ago, such as draining and filling mud holes; and that a telephone pole stood in the alley for a number of years. Five witnesses testified that the alley has been open, and used generally by the public for many years.
The plaintiff, W. F. Goshorn and H. D. Goshorn, who were parties to the partition deed, testified that the alley is private; and that it was made for the sole use and convenience of the lot owners and their tenants, and has not since been used otherwise to their knowledge. The plaintiff introduced in evidence a letter written by him in 1922, to an adjoining proprietor giving him permission to use the alley. He further testified that for many years following the partition, gates and bars were maintained across the alley, which finally rotted down about eight or ten years ago; that about twenty years ago he and a tenant utilized the alley for a time as gardens; that his property did not abut on State Street and he had no notice of its paving; and that he had never seen any work done by the city on the alley. A tenant who had occupied one of plaintiff's lots for twenty-three years, testified that gates were across the alley when she first moved there, but had disappeared sometime afterwards, since when people generally had used the alley.
In an unbroken line of decisions this Court has held that an owner of land may dedicate it to public use by acts and declarations without an express grant. But in such case the conduct relied upon to show the animus dedicandi must be deliberate and unmistakable, active rather than passive, and "the result of intention rather than inattention". Pierpoint v.Town of Harrisville,
Witnesses who stated that the public used the alley, admitted that they did not know personally the people whom they saw using it, and with the exception of some school children, did not know but what such people were hucksters, icemen, or others having business with the owners of the lots or their tenants. It is not necessary, however, to weigh this proof carefully, as it is settled law that when once the private character of a way is established, mere use by the community is held to be permissive and in subordination to use by the owner. "Where a way is laid out and used as a private way, the mere fact that the public also makes use of it without objection from the owner will not make it a public way." Elliott, Roads and Streets, (4th ed.) sec. 5. See also sec. 29, and in addition to the many cases cited by this author, see Washburn, Easements and Servitudes, 4th ed.) p. 213, sec. 13; 18 C. J., p. 105, sec. 1201; Brinck v. Collier,
The contention is also made that because the public has had access to the alley and has not been denied the right to use it, and the defendant has made some expenditures on it, the alley has become public by virtue of section 3, Chapter 43 of the *400 Code. If this contention were sustained, all neighborhood accommodation over private roads would cease. For if it were understood that the passage of neighbors through one's property over a way prepared by one for his own use, was likely to result in the way becoming public, a discontinuance of that courtesy would immediately follow. We cannot conceive that the Legislature contemplated such a result and we hold that the section does not apply to a purely private way which is used by the public at the sufferance of the owner. To hold otherwise would violate the constitutional inhibition against taking private property for public use without just compensation to the owner.
A discussion of defendant's claim of its acceptance of the alley is unnecessary, since without a dedication there can be no valid acceptance.
It is not shown that the owners of the alley knew of any expenditures of public money thereon. Their title is accordingly unaffected thereby. Morlang v. City of Parkersburg,supra, p. 517.
The alley has never been assessed integrally on the land books, and no taxes have been paid upon it as such. The defendant contends that if the alley is not a public alley, it was the duty of the owners to have it assessed and pay the taxes thereon; that their failure to do so has resulted in its forfeiture to the State; and that the plaintiff is without right or title to maintain this action. The plaintiff replies that under the general law the title of abutting lot owners extends to the center of the alley; that the lots have been assessed and the taxes paid thereon (with the exception of Lot No. 7); that the value of the alley has been included in the valuation of the lots for assessment, and that therefore no forfeiture has occurred.
Kent says: "The established inference of law is that a conveyance of land founded upon a public highway carries with it the fee to the center of the road as part and parcel of the grant. The idea of an intention in the grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be *401
presumed. * * * It would require an express declaration or something equivalent thereto, to sustain such an inference." Kent's Commentaries (14th ed.), Vol. 3, p. 433-4. Dembitz "heartily agrees" with the doctrine of Kent. Dembitz on Land Titles, Vol. 1, sec. 11, p. 75. The defendant says, however, that its contention is within this rule because the descriptions of most of the lots call for a line of the alley, and Clayton v. County Court,
The seller of land can ordinarily have no object in retaining a narrow strip along a line of his grant, particularly a strip subject to the rights of others. The strip is of no value when separated from adjoining property. The grantor's use of and concern for it ends with his conveyance, unless some fortuitous circumstance later makes it worth while. The retention of the strip may seriously retard the improvement and further alienation of the adjoining property, especially if the strip is on a private way. Its proximity to his purchase makes the strip of direct and substantial value to the grantee. The rule as stated by Kent is therefore indispensable to prevent rapacious demands of former occupants of lands abutting on highways, and quiet the title of present claimants thereto. *402
The rule is compelled to "uncontrovertible public policy".White v. Jeffarson,
The descriptions in deeds are usually prepared by surveyors who compose the calls with reference to the lines as they exist on the ground. Surveyors are not informed of or concerned with the fastidious refinement in the use of language favored by some courts. The parties to deeds almost invariably have the general notion that the fee in a road passes to the grantee of an abutting lot by force of an ordinary conveyance. Hence, they see no reason for preciosity. The rule was designed to meet just such a situation and to supplement the absence of specific grant. It therefore seams that a rule so salutory should be furthered with liberal construction — not fettered by literal discrimination. Many Well considered cases support this view. "There is no doubt whatever as to the existence of the general rule; but it is thought by the plaintiff in error that where the deed calls for a particular side of a street the case is taken out of the rule. In our opinion this is a circumstance entirely too insignificant to produce a result so inconvenient and so contrary to the practice of the people. * * * A rule founded upon policy, and tending to guard against inconveniences of the most alarming character, ought not to be frittered away by distinctions founded on differences in phraseology, which might readily escape attention. The paramount intent of the parties, as disclosed from the whole scope of the conveyance, and the nature of the property granted, should be the controlling rule." Paul v. Carver,
The same general rule applicable to highways is, by the weight of authority, applied to private ways and alleys. "The rule is the same whether a deed calls for a public highway or opened private alley as a boundary, it passes title to the grantee as against the grantor to the middle line of the alley." Saccone v. Trust Co.,
A well considered case on this subject is Clark v. Parker,
"In the construction of deeds, where lands are bounded on or by a way, either public or private, the law presumes it to be the intention of the grantor to convey the fee of the land to the centre of the way, if his title extends so far. This presumption is of course controlled, whenever there are words used in the description showing a different intention. But it has been held that giving measurement, in the deed, of side lines, which reach only to the outer line of the way, are not alone sufficient to overcome it. Phillips v. Bowers, 7 Gray 21. Fisher v. Smith, 9 Gray 441. Codman v. Evans, 1 Allen 443. This rule of interpretation *404 applies, with more force, to a return of commissioners of partition, which has been confirmed by the court, when the way located by them is wholly upon the land which by the warrant they are required to divide. The return itself here shows that the commissioners intended to perform the whole duty required, so that the parties should not be left tenants in common of any part of the original estate. The difficulty arises from the statement that the strip of land appropriated for a street or way was to be held in common and undivided, by the abutters thereon. But it was clearly within their power to create a new incorporeal estate, such as a right of way over a part of the land divided, to be enjoyed in common, after the partition, by all the owners. This they did; and the tenancy in common which they created and intended to describe was a tenancy only in the easement, and not in the soil. To hold otherwise would make their proceedings imperfect. The right of way secured was doubtless the main consideration, for there could be little value in the undivided interest of a tenant in common in the strip of land subject to it, independent of the ownership of the adjoining lots."
While the partition here was voluntary, the deed recites that the owners of the property "have agreed to make partition between themselves". This partition is therefore entitled to the same presumption which arises in a partition by a court, to-wit, that a complete division of the property was intended. We therefore hold that the fee in the alley passed in severalty to the abutting lot owners.
The forfeiture of Lot No. 7 changes nothing but the ownership of that lot. It affects the rights of the other lot owners no more than had it passed to a private individual instead of the State.
Whether the dimensions of the several lots, as charged on the land books, are equal to the entire area of the lots and the alleys, is immaterial. Bare deficiency in the area charged does not ordinarily cause a forfeiture. The alley was included in the assessment of the lots. State v. Hines,
The Parthian shot of the defendant is that no case for equitable interference has been made. Jackson v. Big Sandy R.R. Co.,
The decree of the circuit court is reversed and the injunction heretofore granted herein is perpetuated.
Reversed; injunction perpetuated.