126 Va. 424 | Va. | 1919
delivered the opinion of the court.
The road was originally constructed between 1856 and 1859 as a turnpike, and the right to take tolls thereon was accorded in 1859. Tolls were taken thereon by the predecessor in title of the appellant, and the latter, since it acquired title, has been, and still is, taking tolls thereon. Under the general turnpike act of 1887 (Rev. Code 1819 ch. 234), a turnpike company could not condemn the fee in land for its purposes, but only the right of way. The former owner still held title to the land subject to the easement.
The appellant was unable to show title to its right of way either by grant or condemnation, but "was compelled to rely upon long user, founded upon dedication and acceptance. The appellant insisted that the road was originally constructed by the Jackson River Turnpike Company under its charter which required it to take and clear a right of way sixty feet wide at the least. The appellee, on the contrary, contended that the road was constructed under a charter to the Hot Springs and Miller’s Mill Turnpike .Company which allowed the construction of a road “not less than 16 feet, exclusive of side ditches;” each party claiming a presumption of dedication of the width allowed by the charter of the company' constructing the road. This point of difference was hotly contested by the parties, and they took evidence. to support their respective contentions. The trial court took the view that the construction was not under Jackson River Comnany’s charter, but was probably under the charter of the Hot Springs and Mil
That there was a dedication and acceptance of a right of way for the turnpike is not disputed, and the turnpike has been in active operation, as such, for over half a century. The only question in controversy is the extent of that dedication and acceptance.
Drawings filed with the testimony of witnesses and also their testimony, show that the turnpike is enclosed by fences on both sides through the lands of appellee and others, and apparently for its whole length. What the appellant proposed to' do, and was engaged in doing, at the time the injunction was awarded, was to construct a way four feet wide for. the use of persons riding horseback and for pedestrians. This way was being constructed wholly within the fence enclosures of the pike, by cutting benches in the cuts and fills of the existing roadbed, where necessary, and at other places making necessary cuts and fills within said enclosures. These cuts and' fills varied in depth and height from a “feather’s edge” to four feet. In some places the adjacent landowner had erected his fence on the fill of the original roadbed several feet from the bottom of the fill, and when perpendicular cuts were made in such fills, it left exposed and liable to fall down the posts of the fence erected thereon.
In Supervisors v. Norfolk & W. R. Co., 119 Va. 763, 91 S. E. 124, Judge Sims has very' fully and clearly set forth the views of this court on the subject of the width of a public road acquired by prescription, in the absence of any evidence as to the nature and extent of the dedication under which the prescriptive right was acquired. After a very full examination and consideration of the authorities, he says: “Our conclusion, therefore, is that the width of the public road in question at the time the railway company made changes in its location was confined to, and was the width of, such road as was in use by the public at that timé, including the side ditches and slopes, in addition to the roadbed or traveled portion of the roadway.” It will be observed that the width of the road-' includes “the side ditches and slopes” as well as “the roadbed, or traveled portion of the roadway.”
“And when it is complete, it is irrevocable. No obstruction of the subject of the dedication, or encroachment upon it by the original owner of the soil, or by any one else will affect the dedication, or impair the right of the public to its benefits, unless the land so dedicated has been aban
In Village of Lee v. Harris, 206 Ill. 428, 69 N. E. 230, 99 Am. St. Rep. 176, it was held that acceptance by a city or village of some of the streets and alleys appearing on a plat is an acceptance of the entire system of streets and alleys so appearing, unless an intention to limit the acceptance is shown. It was further said: “The immediate opening and use, by the public, of all the streets in ground laid out and platted into lots, for their entire length, or an immediate formal acceptance by some competent public authority, is not necessary to give effect to the dedication of land to the public use, of a street, by the making of a town plat and the selling of lots with reference to the plat. The public authorities must be allowed a reasonable time for opening and improving public streets, as their resources and the public necessity may allow and require.”
What we have said on this subject is intended to be limited to dedication and acceptance as between the adjacent owner and his alienees, on the one side, and the public on the other.
It appears from the testimony that' this road • is three miles in length; that it has in recent years been widened and treated with asphalt; that travel on it has greatly increased; that the road-bed is very hard and smooth and at times very slick, and as a result thereof horses when ridden thereon frequently fall, and hence it is desirable to construct a dirt road, which will at once'furnish a safe road for persons riding and will also provide a suitable and safe way for foot passengers. As the driveway of the pike is narrow, and automobiles are frequently passing each other thereon, it was deemed best to put the bridle path a little removed from the driveway and thus furnish greater safety to those using it.
We are of opinion that the decree of the circuit court should be reversed, the injunction awarded by it dissolved, and the bill of the appellee dismissed, but without prejudice to his right to maintain an action at law to recover such damages, if any, as he has sustained or may sustain by reason of the change of grade of the turnpike, or any part thereof, or by reason of the removal by the appellant of the lateral support of the land of the appellee, or of the structures thereon, if any.
Reversed.