49 W. Va. 669 | W. Va. | 1901
On tbe 18th day of October, 1818, Daniel Stringer and wife conveyed by deed of that date to Lewis Maxwell “The following lots or parcels of ground situate, lying and being in the town of Preston. * * * * Lot as named in the ground plan of said town Nos. 1 and 2, adjoining each other, aiid bounded as followeth (to-wit) on the north side by lot No. 3, on the south side by First street, on the east end by Centre street for one hundred and forty-five feet and on the west end by an alley, each containing seventy-two, one-half feet in breadth and one hundred and fifty feet in length. By deed of date 23d December, 1836, Lewis Maxwell conveyed to John Lorentz the said lot No. 1, described in said deed as “situate in the town of Weston, it being lot No. 1, on the west side of Centre street on which said Lorentz’s shop now stands, seventy-two and one-half feet in front and one hundred and fifty feet in length. By deed dated 20th November, 1844, John Lorentz and wife conveyed to Banldn W. Douglass' the same lot No. 1 described as situate in the town of Weston on the west side of Centre street, it being lot No. 1, and bounded on the southwest by First street, on the west by an alley, on the north by lot No. 2, on the front by Centre street, being seventy-two and one-half feet in front and one hundred and fifty feet back, containing one-fourth of an acre.” By deed dated 16th day of November, 1846, Douglass and his wife conveyed said lot No. 1 by same description to William E. Arnold. Said William E. Arnold by his last will and testament devised said lot to Susan M. Arnold, his wife, for life, remainder in fee to his daughter, Floride McClellan. The General Assembly of Virginia by an act passed January 14, 1846, incorporated the town . of .Weston, by which name it had been called for several years before its incorporation, but had theretofore at one time been known as Preston and at another as Flesherville. Section 8 of said act provided, “That all streets, cross streets and alleys which are already laid off and opened, or which may at any time be located, surveyed and opened in said town, shall be and they are hereby established as public streets and alleys of the said town.” And section 9 provided that the trastees for whose election it was provided in said act should “within six months after the passage of this act, open all the public streets and alleys of said town; shall make or cause to he made a survey and correct plan
The lay out of the town being thoroughly established, the appellee can only claim title by adverse possession by virtue of the statute of limitations, which under the rule in the Ralston-Weston Case cited, does not and cannot apply in this case, and as she acquired no right by virtue of what she claims to be adverse possession, the question of due process of law cannot arise in this case. It is not a taking of private property for public uses, it is only the taking of that which belongs to the public by dedication, and of which the public cannot be deprived; such an easement as an individual cannot destroy “by setting up a cl aim by prescription, adverse possession, or equitable estoppel,” as held in Ralston v. Weston, cited.
The decree of the circuit court will be reversed, the injunction dissolved and plaintiff’s bill dismissed.
Reversed.