48 W. Va. 170 | W. Va. | 1900
Lead Opinion
The town of Weston by its mayor and common council undertook by means of its authority to remove from Water street, one of the public streets of said town, certain obstructions maintained thereon by Er. Ealston, who enjoined in the circuit court the action of said town authorities. Upon the hearing of which the circuit court perpetuated the injunction, when the defendant appealed to the Supreme Court,.and upon the case there being heard the decree of the circuit court was reversed, the court finding that plaintiff was maintaining a public nuisance, subject to abatement either by the municipal authorities, under their statutory powers, or by an appeal to a court of equity, and said cause was “remanded to the circuit court, with direction that plaintiff’s injunction be dissolved, and a mandatory injunction be awarded the defendant, at the plaintiff’s costs, directing the plaintiff to abate the nuisance maintained by him thereon, and that the strip of ground in controversy be restored to Water Street, and made subject to he public easement therein.” The case is reported in 46 W. Va., 544 (33 S. E. 326). The circuit court not only failed and refused to award the mandatory injunction directing the plaintiff to abate the nuisance maintained by him on said street, as required by said decree, but on the other hand when the municipal authorities undertook to abate the nuisance, the said circuit court entertained an action by said plaintiff of trespass on the case for damages against said town for removing the obstructions from said street, and also another action by him against said town of unlawful entry and detainer for the possession of said strip of ground upon which plaintiff had
Counsel for the parties have filed very elaborate and well prepared briefs, which would reflect credit upon any counsel as far as the research and industry necessary to their preparations are concerned. They have thoroughly discussed the questions already settled, and forever settled whether right or wrong, in the case of Ralston v. The Town of Weston, and the only question to be determined in this case is, whether, after it has been finally determined that the title under which Ealston sought to hold the property as against the town’s easement therein for the purposes of a street, was insufficient as against the town, while it had been for a half a century held by him and his vendors in actual adverse possession as against all the world beside, he can by procuring paper titles which never pretended to claim the particular strip of ground in controversy, and under which possession of said strip was never held for a single hour, sucessfully contest the rights of the town? The decision in the case of Ralston v. The Town of Weston forever settled the question that the town has an easement over the strip of land enclosed by Ealston, and which was in said cause in controversy, which under the rulings in said case is good against any and all titles
Concurrence Opinion
(Concurring).
I fully concur in the forgoing opinion. We are asked to reconsider and overrule the decision of this Court in Ralston v. Weston, 46 W. Va. 544, (33 S. E. 326), T Mun. Corp. Cases 748, holding that the statute of limitations under adverse possession does not bar the right of a town ox city to its streets. I have carefully examined this subject, and the opinion has constantly grown upon me that that decision is only the expression of sound
A case decided April 23, 1900, by the supreme court of South Carolina, Chafee v. City of Aiken, (35 S. E. 800), is very apt in this particular case, and surely expresses the law almost universally accepted in America. It holds: “Ho rights against a municipality, in a street dedicated to it, can be acquired by adverse possession.”
“Mere nonuser of a street by a municipality will not amount to such an abandonment as will destroy its right to open the same.” It is suitable to this case in the fact that Ralston is a privyinestato with-Flesher, who dedicated this street to the town, and Ralston holds by title derived from him. Flesher could not claim against his dedication by adverse possession, neither can one holding title under him, as does Ralston.
“Ho length of non-user bars a right granted by deed.” Wash-burn on Easements, section 6, page 550. The very deed under which Ralston claims derivatively from Flesher dedicates this street to the town, and limits the rights of its grantee by it. This is conclusive as to the title held by Ralston-under Flesher. See the number of states that hold that time will not give title to>a public strept by adverse possession cited in Judge Dent’s opinion in Ralston v. Weston. Thus there are two reasons, distinct reasons, which T have just mentioned that deny that adverse possession will destroy the public right in a street or other highway. One is that the statute does not run against sovereignty; the other is that such possession is a'public nuisance, a public offense, and no matter how long it'continues, it does not mature into right. “Once a highway, always a highway,” is found in all the.books, those musty with age, and those that are new. Instead of this doctrine changing in favor of the individual against the public as time goes on, just the reverse is the case; for a critical examination will attest that states which once held that time would bar this public right, have
No legal principle is ever settled until it is settled right. The true rule is laid down in 23 Am. & Eng. Ency. L. 36: “No prior decision is to be reversed without good and sufficient cause, yet the rule is not in any sense ironclad, and the future and permanent good to the public is to be considered rather than any particular case or interest. Even if the decision affects real estate interests and titles, there may be eases where it is plainly the duty of the court to interfere and overrule a bad decision. Precedent should not have an overwhelming or despotic influence in shaping legal decisions. No elementary or well-settled principle of law can be violated by any decision for any length of time. The benefit to the public in the future is of greater moment than any incorrect decision in the past. Where vital and important public and private rights are concerned, and the decisions regarding them are to have a direct and permanent influence in all future time, it becomes the duty as well as the right of the court to consider them carefully, and to allow no previous error to continue, if it can be corrected. The reason that the rule of stare decisis was promulgated was on the ground of public policy, and it would be an egregious mistake to allow more harm tiran good to accrue from it. Much not only of legislation, but of judicial decision is based upon the broad ground of public policy, and this latter must not be lost sight of.”
There is another reason why the town’s right is not barred. Ealston occupied only thirteen and one-half feet of the forty foot street, the balance being always open and used as a street. Now, in some of those states which still hold, and in some which once held, that the statute of limitations bars the public right where the whole street is adversely occupied, yet held that where the occupation extended dver only a part of the street, the statute did not apply in bar of the public right. This distinction is quite reasonable. Why? Because when a man entirely closes up a street, there can be no more decided notice to the world of his adverse claim; but where he obstructs it only partially, his act is equivocal, and does not so signally notify the world of his claim, and no one notices it, as he would if the obstruction was total. He may not really intend finally to claim it. His act does not put the town or city authorities and the public on their guard. Generally in the case of streets like Water street in Weston, at one time very little used, no one thinks of opposing a partial obstruction, and takes no steps against it. In such ease the states referred to-have decided that the town or city may let its rights lie dormant until there is public need for the whole width of the street, and that when that time comes, the town or city may open the whole width. Such is the case in Water street in Weston. Such was the holding in Krueger v. Jenkins, (Neb., 1900) 81 N. W. 844; Fox v. Hart, 11 Ohio 414; Lane v. Kennedy, 13 Ohio St. 42; McClelland v. Miller, 28 Ohio St. 488; Davies v. Huebner, 45 Ia. 574.
There is still another reason why the right of Weston is not barred. The right of a town or the public in a street or highway is not owenrship of the body of the land, but only the right to use it for passage, an easement. The statute of limitations never applied to an easement. Jones on Basements, section 161, says: “The statutes of limitation do not directly apply to actions in which incorporeal hereditaments, such as easements, are in
Consistenly with this view we find that in the late great work, Am. & Eng. Ency. L (2. Ed.) Vol. 10, page 432, where the modes in which easements may be lost are given “limitations” is not mentioned. “Abandonment” is mentioned as a means by which the public may lose its highway. So, Washburn on Easements does not give limitations as a means of loss of a public easement, but does give “abandonment” as the cause of loss of such easement. You will find the books treat abandonment as a cause of such loss,, but they do not apply the statute of limitations to easements. The books do treat non-user as working, under certain circumstances, the destruction of a public easement; but they sáy that such non-user must amount to an abandonment, and mere silence, mere inaction by municipal authorities, unattended with circumstances displaying and plainly manifesting an intentional abandonment, will not prejudice the right to the easement. Washburn on Easements, speaking of non-user in section 6, sub-section 1, uses this language: “Here, as in case of acts of abandonment, the non-user must be of such a character and duration as to show an intent to abandon the easement, or it must have induced another to expend money upon the supposition of such abandonment, which is known and acquiesced in by the one who might otherwise claim it, and where to enforce the right of easement would work injustice upon an innocent party.” Now, just here, note that the town council passed resolutions in 1879 and several times since directing the opening of Water street to its full width, and Ralstoh was informed and notified of such resolutions and of the continued claim of the town. ITo did not flatly assert a claim when so notified, but practically admitted the town’s right. Where is there anything to show an abandonment by the town of its clear right to this strip?. Nothing. On the contrary, the evidence shows the opposite; it shows that the town did not intend to abandon its right, and so notified Ralston. It is well established that mere non-user will not destroy an easement where its owner sets up a continuous claim, or protests against a use of the locus by the
But whilst this Court might retract the principles settled in the case of Ralston v. Weston, namely, that limitation does not bar the right of a city or town to a street, if this Court were now convinced that such decision were error, yet it could not alter the actual decision of this case, for the reason that that decision is res judicata and forever settles, between Ralston and the town of Weston, that the strip of land in controversy is a part of Water street and still subject to the public easement.
But Ralston claims that after said decision in Ralston v. Weston, he obtained a new right to that identical strip by a conveyance from J. P. Cole. This cannot change the result, and wiry? First, Ralston’s long enclosure had barred Cole’s right, if he had any right, and vested Cole’s title in Ralston, by force of the statute of limitations; for the statute would bar the private right of Cole, but not the easement of the town, Cole being a private individual. Thus, when this Court decided that said strip
Second. If Cole had any title to that strip, as he had not, it was subject to the public easement, and even if the statute could run against that easement, it would not run in favor of the Cole title, because it is not pretended that Cole ever had any possession of that strip, ór set up any claim contrary thereto. Where did Cole have any possession to bar the town right, which nobody denies was once good? Ralston had an enclosure; but his right and Cole’s right wore distinct and not in privity, and Ralston’s possession would not enure to the benefit of the Cole title. And the same rule of law, moreover, which, rmder principles above stated, would prevent Ralston from using the bar of the statute, would forbid Cole’s so doing, and all other persons having any claim to that ground. That was an easement over that ground against 'all titles by whomsoever owned.
Third. In a suit between the town of Weston and Cole, in 1889, the town contested Cole’s right to build a stable on the bank of the river on the west side of Water street, if counted at only forty feet, and on the opposite side of Water street from the strip now in controversy between Ralston and the town, the town claiming the whole space to the river. Cole by an answer claimed that the land between the west .side of a forty foot street and the river had never been a part of the street, and also claimed some grant from the town; but his answer distinctly conceded the existence of a street of forty feet width, which included the thirteen and óne-half feet enclosed by Ralston and now in controversy. If Cole ever had a shadow of claim to that thirteen and one-half feet along the east side of Water street, his answer renounced all right to it in favor of the town, and conceded that the public street included it, that is, that Water street began one hundred and fifty feet from Main street, and was of the width of forty feet, which would include the strip now in controversy. He
I can see no shadow to claim any basis under this head, except the theory that the decision in Wheeling v. Campbell that limitation bars a right to a public street, makes a law, and that under it title had already vested in Ralston before this Court overruled that decision, and that the overruling decision devested a vested right of property in Ralston. This cannot be, unless we can say that Ralston had a vested right of property under the facts and the law. This he had not. Even if we could regard the first decision, Wheeling v. Campbell, as making a “law,” still Ralston would have no vested property under it, in the view of a Federal Court, or of a state court, for the simple reason that Ralston’s possessio: was never adverse to the town’s easement, as held, upon the facts, by this Court in the case of Ralston v. Weston, and thus Ralston did not acquire vested property by adverse possession. But suppose Ralston’s possession had been adverse in character, would it give him title ? Hot unless we can say that the first decision of this Court holding that limitation applies to bar a town or city of its easement in a street, was “a law,”- just like a statute, and that title vested under it. There must be law to vest a title to property. A decision of a court is not a “law,” so that by its 'force alone property may vest. Property will vest under the law, but not under a mere decision, an erroneous decision, except in the particular case, and that is not because such decision is a law,
To enable a party to say that he has been deprived of properly without due process of law, he must be able to show a “law” under'which the property could vest; he must show a right of property under the law, recognized by the law. New Orleans v. Water Co., 142 U. S. 179; Essex &c. v. Shinkle 140 U. S. 334. Ralston’s only show of title against the easement, for he owned the soil, Avas by adverse possession, and he could not get title by it, because there could be no adverse possession against a public easement in a street. Possession ever so long contrary to law, a nuisance, cannot give title. Clearly this shuts out all claim of Ralston existing at the date of the decree in Ralston v. Weston. How as to Ralston’s claim derived from Cole? I repeat that that colorable claim is barred by the former decree as res judicata. But for argument’s sake, say that it was a title acquired after the former decree. There is no color for claiming title by possession under it against the town’s easement, because Cole never had any possession of this.strip. All admit that the street was once valid to cover this strip with the public easement, and Cole never acquired any title by possession agáinst that easement, as he never had possession at any time, and Ralston could not get from him a right which Cole himself did not possess; so there is no pretense for Ralston to say that he is deprived of property under this Cole claim without duo process of law, since he had no vested property to bo deprived of without
In Hart v. Burnett, 15 Cal. beginning at page 597, is an able discussion of stare decisis, and it is shown that whore a renunciation of erroneous decisions, though several in number, and though they concern title to real estate, will promote public interest, they often have been, ought to be, renounced.
Equity Jurisdiction. This is clear in this ease. The right of the town to the street being valid, settled by adjudication, as shown by Judge MoWiioetee and above, shall it be called upon to re-litigate its right in two suits brought against it in denial of that right? If its title to that street is good, those actions are groundless. If judgments were recovered in them, could this Court sustain them? Clearly not. To do so, would nullify its own decision. This Court held the right of the town good, and made a mandatory injunction to enable the town, authorizing the town, to do the very thing for doing which it ’is now sued. The town only executed its decree. Had this Court not adjudged the matter, equity might take jurisdiction on the mere ground of avoiding multiplicity of suits; but the town has established its right by adjudication. Is Ralston to be allowed to recover from the town damages for doing an act held by this Court w be a lawful act ? Is he to be allowedi by his action of unlawful
Another plain ground of equity jurisdiction is to quiet title by removing the cloud over the town’s right caused b}r the conveyances from Cole and McG-ary, commissioner, and give peace against litigation, especially as its right has been adjudicated. The town was in possession and for this reason, and because it had a mere easement, could not bring ejectment, and had no remedy to give adequate relief but in equity. Smith v. O'Keefe, 43 W. Va. 172; Davis v. Settle, 43 W. Va. 17, 37; Christian v. Vance, 41 Id. 754; Clayton v. Barr, 34 Id. 290. In the Davis Case, Judge Dent held that equity would plainly interfere to prevent an act to defeat an adjudication of this Court. Even if Ralston’s procurement of these deeds be ever so free from an intentional obstruction of the former decision, yet if they are in fact such an obstruction unwarranted in law, equity will step in to cancel and give peace. “The jurisdiction is now maintained to the fullest extent, and these decisions are founded on the true principle of equity jurisprudence, which is not merely remedial, but also preventive of injustice. If an instru
In no view should Balston be upheld in using these deeds to defeat tlie ptmlic right, to becloud the public right, fixed and settled by actual adjudication. Equity should say, “Peace, be still.”
‘“Jurisdiction in equity will be exercised to enjoin nuisance and avoid vexatious litigation and a multiplicity of suits.” 4 Ency. Plead. & Prac. 1126.
Balston’s action cannot be successfully predicated on any idea of forcible entry, because an officer making an entry under process -is not guilty of forcible entry. Ogg v. Murdoch, 25 W. Va. 139. The order of the council to make such entry to remove such nuisance was warranted by chapter 47, Code, by the actual adjudication of this Court, and was due process, even without such statute, and adjudication, it being a nuisance. The council order as the unit or process. Driggs v. Phillips, 103 N. Y. 77. Any one may remove an obstruction on a highway. 2 Tucker 4, note; Dimmett v. Eskridge, 6 Muf. 308. A town surely has a plainer right inherent in it. It is commanded to do so, and may do so in a summary way, and destroy the thing creating the nuisance. Yates v. Warranton, 84 Va. 337; Yeager v. Carpenter, 8 Leigh 454; Young v. Gooch, 2 Leigh 646; Baker v. Boston, 22 Am. Dec. 421; Hart v. Albany, 24 Am. Dec. 165; 2 Beach, Pub. Corp. 1022.
As equity has jurisdiction on several grounds, it is useless to cite law to show that no common law jury right is invaded.
Affirmed.