157 S.E. 160 | W. Va. | 1931
This is a suit in equity by one lot owner against certain other lot owners of the same addition seeking a mandatory injunction for the removal of certain fences across a street in said addition on the ground that their maintenance is a public nuisance. The circuit court granted the injunction as to two wire fences, but denied it as to a paling fence, which was located across the dead-end of the street, and on line with the western boundary of said addition.
The Dolan Addition, in the unincorporated town of Wolf Summit, consists of forty-one lots. It was laid off in 1902, and a plat thereof duly recorded. The plaintiff and defendants, and their predecessors in title, having purchased lots in relation to said plat, acquired the right to the free and unobstructed use of the streets as located thereon.Cook v. Totten,
At the time the addition was laid off, the father of one Lloyd Fultz owned a large tract extending along the entire western boundary. Francis Street — which ran east and west — came to a dead-end at the division line between Fultz and the addition. So, under the situation then existing, there being but one way of ingress and egress, the property owners necessarily made only a limited use of Francis Street.
Defendant Carpenter's predecessor purchased lot 40, which was located to the north of Francis Street, with its western boundary coinciding with that of the western boundary of the addition. In 1905, Lloyd Fultz, who had succeeded his father in ownership of the tract west of Dolan addition, laid off lots facing said addition, leaving a strip running with the western *169
line of the Dolan addition to the public highway on the south for a street. The reservation of the street by Fultz for the use of his lot owners was only verbal. Prior to such dedication he had given defendant Carpenter's predecessor and others verbal permission to lay a sidewalk (of railroad ties) on his property along the line of the Dolan addition to the highway, the same passing the closed end of Francis Street. This permission being verbal was revokable at will (Pifer v. Brown,
On broad equitable grounds we would extend this right to a second addition where lots were laid off with reference to streets and alleys of the first addition. And this is true notwithstanding that in so doing the ingress and egress of some abutting property owner may be in some measure disadvantageously affected. The use of the one must yield to the larger use of the many. So believing, we would require the defendant to remove the paling fence and restrain him from thereafter maintaining such fence across Francis Street. The mandatory injunction will be enlarged to achieve this purpose.
Reversed and entered.