114 Va. 90 | Va. | 1912
delivered the opinion of the court.
This is an appeal from a decree dissolving a preliminary injunction and dismissing the bill in a suit brought by the appellants to injoin the appellee from obstructing the plaintiffs in the use and enjoyment of a private roadway affording them means of outlet from their respective properties, which are entirely surrounded by the lands of private parties, through Lot No. 1, the land of the defendant, to the “Vinton Public Road.”
*91 The following is a copy of the map referred to in the opinion of the court:
For many years during the lifetime of John B. McClung there was a private roadway, known as the old road, leading from the mansion house to the “Vinton Public Road” at the present outlet. The route of the old road was from the mansion house, passing a white oak at station 16 (on a map filed Avith the record) to Berkeley’s corner; thence, in part over and along Berkeley’s line to station 15, and thence off through what is now Lot No. 1, by station B, to station A, on the public highway. Several years prior to McClung’s death a dispute arose between himself and Berkeley touching the correct location of the dividing line between them from station 16 to station 15, the latter claiming to the center of the road. The line was eventually surveyed, and Berkeley erected a line fence in the middle of the roadway from 16 to 15. Thereupon, McClung discontinued the old road between those points, and from 15 to B, and established what is now known as the new road, a straight road from 16 to B, thus providing a continuous road over his own land from the mansion house to the public road at station A. The portion of the old road from 16 by 15 to B, on McClung’s side, was wholly discontinued and plowed up, and since that time has been under cultivation as other parts of the farm.
We have not undertaken to discuss the evidence in dé
When appellee bought Lot No. 1 the new road had been established for several years, and was apparent and necessary, and in continuous and uninterrupted use by the appellants. Moreover, the defenses relied on by the appellee show that he purchased Lot No. 1 with actual knowledge of the existence of the new road. Thus, he proved by T. B. Jones, the husband of his vendor, that McClungdiscussed with him a purpose on his part to discontinue-the new road and to open in place of it another road along the route of the old road. But, however that may have been, McClung did no act in furtherance of such intention, but continued to use the new road as long as he lived.
Gish also attempted to prove by Jones a parol agreement between them, which he says was acquiesced in by “the heirs,” to change the location of the new road to its-original position. Yet if any such agreement was made, it was inchoate, and was never attempted to be consummated.
The remaining ground of defense involves the contention that appellants had another outlet to a public road by a private way over the land of W. G. Wood. But this allegation is wholly disproved and seems to have been abandoned.
The roadway in question having been established by John B. McClung during his ownership of the entire-boundary of 405 acres of land, it will, if reasonably convenient and necessary, be continued for the use and benefit of his devisees (and those claiming under them) upon a.
For these reasons the decree of the circuit court must be reversed and this court will make such decree as the trial court ought to have made, perpetuating the injunction, with costs.
Reversed.