30 W. Va. 606 | W. Va. | 1888
It is evident from an inspection of the record that the defendant, the town of Aracoma, although regularly served with process, never appeared to or answered the bill, and therefore the same, as to it, has, in legal effect, been taken for confessed. J. R. Perry, the mayor of the said “ town,” is not a defendant in the cause, and therefore he had no' right to appear and answer the bill, and the fact that he did so can not have the effect to make him a party to the cause, nor can his answer be taken as the answer of said corporation, which is always required to be made under its corporate seal. Bank v. Canal Co., 1 Paige 311; Railroad Co. v. City of Wheeling, 13 Grat. 40; 2 Story Eq. Jur., § 874. The corporation is not in any manner barred by such answer, and therefore what Perry is pleased to admit or deny can not change the legal status of the town of Aracoma, against which the bill stands taken for confessed. The denials in his answer can not have the effect to put the plaintiff upon proof of the allegations of his bill, nor can its admissions relieve him from the necessity of proving them, where, without such admissions, it would be incumbent on him to do so. This answer ought never to have been filed, and, if the plaintiff had objected to the filing thereof, it would doubtless have been rejected; or, if the objection had been afterwards made, it would have been stricken out of the cause. But from the view we have taken of the matter, the plaintiff has not been injured, for the bill as to the town of Aracoma stands as taken for confessed; and the court did not err to the prejudice of the plaintiff, in hearing the cause on this answer in connection with the other matters mentioned in the decree. Dingess, having an interest in common with all the inhabitants of the town of Aracoma, and also a special interest peculiar to himself in opening the alley in controversy, if if ever in fact existed and has been unlawfully fenced up,
Was there ever any alley between the piaintiff’s lot (25 no w) 24, and lot 23, now claimed by Dingess? And, if so, was this alley ever dedicated to the public ? It is not pretended that such alley was ever made or dedicated by the plaintiff or his
We will first consider whether, at the time Ellis purchased from Floyd the lots now owned by the plaintiff, there was an alley between the lots now numbered 23 and 24. It is an admitted fact that before-the sale to Ellis, Floyd had laid off upon a map certain lots, with streets and alleys designated thereon ; that on this map, at the time of the sale to Ellis, were two lots numbered respectively No. 25 and No. 26, and that there was an alley 12 feet wide between them; whether there were at that time any other alleys designated on that map, does not appear. This map was present at the time Floyd sold the lots to Ellis, for in the title-bond then executed these lots are described as “ a certain lot or parcel of land lying on the east side of Guyandotte river, in Logan county, West Ya., and laid down on a map nowin the hands of Floyd, embracing the entire two lots, and the alley between them, No. 25 & No. 26, and this day marked by Wm. Stratton, on said plat, "A and B, sold to Simpson Ellis.’ ” If this map, so marked by Stratton, had been filed in the cause, and considered at the hearing; or if it had been proved by Floyd, Stratton, or any other credible witness, that the one tiled by the defendants as Exhibit A, and considered at the hearing, was a copy thereof; or that the lots as now laid down on said Exhibit A, and numbered “ 24 ” and “ 25,” with the alley on the south-west side of lot No. 24, were laid down in the same manner on said map so marked by Strat-ton, the conclusion would be inevitable that, at the time Floyd sold lots 25 and 26, and the alley between them, that- he then intended to open an alley between lots 23 and 24, as claimed by Dingess. Although it is admitted by all parties that the lots which 'were purchased by Ellis were then numbered “25” and “ 28,” and the same were subsequently numbered “ 24 ” and “ 25,” it is not pretende! that they are different lots. It is apparent from an inspection of the map filed in the cause, marked “ Exhibit A,” and now
Has any such alley been made or dedicated to the public since that time-? But twowitnesses were examined by the defendants, and to neither of them did they propound a single question touching the existence of this alley. Only one of these witnesses mentioned or even referred to it, and what he said was stated on his cross-examination by the plaintiff. The substance of these answers so given on cross-examination is as follows : “ I came to Logan Court-House in the summer of 1873, and went to Mr. Ellis, with a view to buying his property. At that time there was a shed on the upper side of the stable, next to the lot now occupied by Dingess. He showed me the lines of his lots. My impression now is that the fence joined the stable near-the corner, next to the lot now occupied by
In the case of Pierpont v. Town of Harrisville, 9 W. Va. 215, this Court established the doctrine that “where there has .been no public use of a street, the owner may dedicate his land to the public use for such use by acts and declarations without a deed. But in such a case these acts and declarations must be deliberate, unequivocal, and decided, manifesting a positive and unmistakable intention to permanently abandon his property to such public use.” This doctrine was reaffirmed by this Court in Boughner v. of Mason, 23 W. Va. 211, this Court held that if an in Town of Clarksburg, 15 W. Va. 394. In Mining Co. v. Town corporated town attempt to open streets and alleys through the land of any person against his consent, claiming that the land sought to be taken for that purpose had been dedicated to the use of the town, the burden of proving such dedication is upon such town.
The testimony of Ellis, taken on' behalf of the plaintiff, proves that he took possession of the lots in controversy in 1871, and resided there four or five years: that he inclosed the premises with a fence when he went there ; that his fence on the upper side of his lot between
The defendant’s proofs in this case are clearly insufficient to prove that the alley claimed had any existence on the 9th day of February, 1871, when Ellis purchased the laud, or that any such alley was ever opened by Ellis or the plaintiff afterwards, or that the public ever had any use of such
REVERSED.