104 Va. 580 | Va. | 1905
delivered the opinion of the court.
During what is now commonly spoken of as the “boom” period, the West Buena Vista Land Company, the owner of a tract of several hundred acres of land lying just across North river, from, and west of, Buena Vista, a town then rapidly growing in population, and which afterwards became a city, desiring to enhance the value of its property and make sale of its land in town lots for building purposes, etc., laid the same off into lots, blocks, streets, alleys, jiarks and other public places, and on the 23rd day of September, 1890, placed a map or plat of said land, so divided, upon record in the clerk’s office of the County Court of Rockbridge county, according to law. The idea of the West Buena Vista Land Co. seems to have been to make its lands across the river from Buena Vista practically a part of that town, and to that end determined to build a bridge across the river connecting the prospective town of West Buena Vista with Buena Vista, and this bridge across North River was shown on the map or plat, made and recorded as stated. The streets of West Buena Vista were to be connected continuously with the streets of Buena Vista by this bridge, and Lexington and Moore streets, appearing on the map of West Buena Vista, and which converge together .at the west end of the bridge, form with the bridge a continuation of 20lb street in Buena Vista at the east end of the bridge.
This bridge, contemplated and contracted for in 1890, was well under way in construction when Oney and his associates bought the mill property, which was connected by open and convenient streets and alleys with the bridge, and within a few yards of its west end, and was subsequently completed, extending not only across the river, but also over the railroad tracks of the Furnace Company, the Chesapeake and Ohio, and the Norfolk and "Western Railway Companies, and terminated in Sycamore (20th) Street in Buena Vista, with the consent of these several companies, but the completion of the bridge was in accordance with the representations of the company in effecting sales of its lands.
By the bridge, “Moore’s Mill” was brought within one-half mile of the business centre of Buena Vista, while without it the distance was about two miles around by the county road and bridge below. It is admitted that this bridge was built as a pass-way “for the owners of the West Buena Vista Co.,” and, after its completion, the public was permitted to use it, and it was used for both horse and foot passengers by those desiring to use it; and for a long time, while the county bridge below was down, it was the only thoroughfare into Buena Vista from the western portion of the county; but there has never been any other acceptance of it as a highway by the county of Rockbridge or the city of Buena Vista.
After many years of service to the public, but especially to the persons who had bought land of the West Buena Vista
In their bill the complainants set out the origin of the bridge, its use, etc., as hereinbefore stated, and charge that they and others similarly situated bought their property in West Buena Vista in good faith on the existence of the bridge as a most valuable easement to their property; that the removal of it would inflict a serious and irreparable injury to the complainants by reason of the fact that they would then be without access to Buena Vista save around- by the old county bridge, a distance of two miles; that the West Buena Vista Company is insolvent; and that complainants desire to repair and keep in repair the said bridge a's an indispensable and valuable easement to their property, etc.
Upon the hearing of the cause on the bill and answer and the .proofs submitted on behalf of the respective parties, .the Circuit Court dissolved the temporary injunction theretofore awarded the complainants, and dismissed their bill; whereupon ■they obtained this appeal.
While there was, unmistakably, an offer of appellee to dedicate the bridge in question to both the county of Bockbridge and the city of Buena Vista as a part of a public highway, it is not claimed — at least it is not shown — that it was in any manner accepted by either; but it is equally as certain from the facts proved that it was not only the purpose of appellee to dedicate the bridge to the public use, and that the bridge was urged as an inducement to appellants and others to purchase the company’s lands, and that it was one of the most important if not the principal inducement to them to buy. It is true that neither the bridge nor any part of it was conveyed in the deed to appellants or to any other purchasers of the company’s lands,- but the map showing the bridge was not only recorded as provided in the “Plat Act,” supra, but was referred to in the deeds made to appellants and others; therefore, the law im-. plies a grant of the bridge as an easement to the property conveyed. But the rule is that the grantor or dedicator of an
There is nothing in this record to take the case out of the control of the general rule, so that while appellants and others similarly situated acquired by their purchase of lands from ap-pellees a right in this bridge as .an easement incident to their property, the burden rests upon them to keep it in proper condition for the uses for which it was constructed; and a fail-use to do this for an unreasonable length of time would amount to an abandonment of the easement, as an abandonment will be presumed where the owner of the right does, or permits to be done, any act inconsistent with the future enjoyment of the right. 10 A. & E. Ency. L., 435; Buntin v. Danville, 93 Va. 205; 24 S. E. 830; Norfolk v. Nottingham, 96 Va. 34, 30 S. E. 444; Scott v. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. Rep. 749. Non-user of an easement, however, unaccompanied by proof of an intention to abandon it, is not sufficient; the evidence must be clear that there was the intention to abandon. See the authorities just cited.
While the evidence shows that the bridge, since the flooring was taken up over the railroad tracks, is absolutely useless except for foot passengers, it also shows that the structure, built mainly of iron and steel, is, with the exception of the flooring well preserved, and the materials therein perfectly sound. Therefore, it cannot be said that it has become entirely useless, as appellee contends, as an easement to the property of appellants. Nor can it be said, under the circumstances, that it has been abandoned by the appellants. On the contrary appellants have been all along and are now using the bridge
But we are further of opinion that to entitle appellants to a continuing right of interest in this bridge .as an easement they should be required to restore it, within a reasonable time, to such condition as will render it safe and useful for the purposes for which it was constructed, and that if this is not done they should be regarded as having abandoned the essement, in which event appellee will be entitled to make such disposition of the materials in the structure as it may see fit. 13 Cyc., 490; Bolling v. Petersburg, 3 Rand. 563; Harrison v. Parker, 6 East. 563.
Therefore, the decree appealed from' will be reversed, the temporary injunction awarded in the cause reinstated, and the cause remanded to the Circuit Court with directions to put appellants upon the terms that unless they repair, or cause to be repaired, the said bridge, putting' it in a good and safe condition for the uses for which it was constructed and formerly used, within a reasonable time to be fixed by the said court in its decree, the injunction will stand dissolved and their bill dismissed.
Reversed.