Hast v. Railroad Co.

Beannon, Judge: The owner of land in Mineral County, across the river from the City of Cumberland, laid out a village by platting his land into lots and streets. The village is called Ridgely, but is not incorporated. In the village are two streets which we will call A and B. Viola G. Hast and Henrietta Hast own a house and lot on A street near the corner of A and B streets. The Piedmont and Cumberland Railway Company made an embankment for its tracks, taking part of B street and also part of A street, and laid its tracks on the embankment, and the said Hasts sued the company for damages resulting to their property from the embankment by rendering access to it less easy and from inconvenience and detriment from the operation of the railroad, and recovered a judgment in the circuit court of Mineral County for three hundred dollars damages, from which judgment the railway company has taken this writ of error. On the trial the company sought to defend itself upon the theory that when it so occupied those streets it acquired a lot in the village and tore down the fences enclosing it and threw a part of it open to the public use in lieu of the parts of the streets which it had occupied, and thus exchanged part of that lot for the parts of the streets which it thus occupied, and thus dedicated a part of the lot to public use for a public way giving access from A to B streets. The company gave evidence to prove by its general manager, that about the time of laying the tracks in the streets, it had purchased a lot for a street or way for the public, in the room and stead of the streets so occupied, and that the company, in execution of that purpose, took down the fence from around the said lot and threw it open to the public to use in lieu of the streets, though no street was actually constructed upon it, and that the public had so used it ever since in the sáme condition in which it was when it was so thrown open. It was otherwise proven that the public had so used the way over said lot. The company asked the court to instruct the jury that if they found from the evidence that the company acquired the lot with intent to dedicate it to the public use for such way, and did throw it open in execution of such intent, and that the public had since used it as a way, then such action amounted to a dedi — 399 — cation of the ground as a public way, which could not bo revoked by the company, and that the company could not thereafter close up the said way. The defendant thereby sought to show that the plaintiffs, having thus a way from street to street by reason of such dedication, either suffered no damage, or that such damage would be mitigated by the presence of the way under such dedication. This presents to us the question whether there was a dedication binding upon the company beyond its power of revocation. Is this substituted way a public highway? Can the company hereafter disavow the dedication and close up this substituted way ? A way may be a highway for some purposes and not for others. It is very certain that under our-statute, Code, chapter 43, section 31, declaring that every road, street or alley used and occupied as a public road, street or alley, shall be deemed to be a public one, mere user by the public however long continued will not make it a highway as regards the county or municipality, that is, to charge such county or municipality witn the burden of maintenance, or of liability for injuries arising from non-repair or defects. To make it a highway for those purposes our decisions are distinct that there must be shown action by the county court establishing, or in some way, recognizing the road as a highway, or it must be shown that it has been worked by a public surveyor of roads. An individual may la^ out a way upon his land for public use, and do all in his power t< dodicate it to the public use, and it may be accepted by the public by using it as such, but it does not thereby become a public highway so as to charge the county with the burdens above stated. It is true we find much law to show that by common law a dedication may be made by an owner of property, which if accepted by the public by long user, makes the way a public highway for all purposes, even to charge the public with its maintenance and with liability for its defects. Elliott on Roads & Streets, sec. 154; 2 Dill. Munie. Corp. sec. 642. But in this State our decisions do not allow the public use of a way to operate as an acceptance of a dedication so as to bind the county. Sampson v. Goochland Justices, 5 Grat. 241; Talbot v. King, 32 W. Va. 6; Ball v. Cox, 29 W. Va. 407; Yates v. West Grafton, 33 Id. 507; Dickens v. Salt Co., 41 Id. 511; Kelley’s Case, 5 Grat. 632. If an owner of land lays it out into streets, lots and — 400 — alloys and sells lots with, reference to such streets and alleys by plat or otherwise, it is a dedication of such streets and alleys irrevocable by him, and makes them public as to all lot owners, and consequently as to the general public. He is estopped to deny them that character. Ridle v. Charles Town, 43 W. Va. 796; Skeen v. Lynch, 1 Rob. 186; 9 Am. & Eng. Ency. L. (2d ed.) 34. To make a dedication valid there must be a dedication and an acceptance; there must be two parties, the dedicator and an acceptor. 9 Am. & Eng. Ency. L. (2d ed.) 43; Elliott on Roads & S. sec. 150; Angelí on Highways, sec. 157. In the present case the county court or surveyor in nowise accepted the dedication, and the question comes up, not whether the way is a public way as regards the county, but whether it is a highway as regards the plaintiffs and the general public. In other words, has the railroad company bound itself against a recantation of its dedication? Can it close this dedicated way against the plaintiffs and the general public ? Hnder this head the first question is: Was there a real act of dedication? It is not to be denied that as between the public and the dedicator there may, under circumstances,- be created a highway binding on the dedicator in favor of the public. This seems to be the case not only where people have expended money on the faith of such dedication, but also where there is no such expenditure; but the act of dedication must be shown by acts and declarations deliberate, unequivocal and decided, manifesting a positive and unmistakable intention to permanently abandon his property to the public use. Pierpoint v. Harrisville, 9 W. Va. 215; 9 Am. & Eng. Ency. L. (2d ed.) 38. How the mere opening of this lot to the public use is not adequate to evince an irrevocable purpose to dedicate, for we may attribute that use to a mere license, rather than an intent to dedicate. It is so common for railroad companies to let their lots lie open that we attribute it to license, mere permissive use, not to an intent to dedicate. Hor does the fact that the company purchase this lot with an intent to dedicate it bind the company, as it might change its notion. There is not such an unequivocal act as speaks unalterably an intention to dedicate. Ho writing is necessary to make a valid declaration of dedication. 9 Am. & Eng. Ency. L. (2d ed.) 34; Pierpoint v. Harrisville, 9 W. Va. 533. There is no act to tie the company to this dedication. Who made this dedication? — 401 — I interpret the evidence to mean .that the general manager of the company threw open this street, or some agent of the company when constructing the road. There is no action by the directors, and the president or general manager would have no power, unless authorized by the directors, to dedicate this lot away. 1 Elliott on Railroads, sec. 285. “A general business and financial agent, though he is also the president, has no authority to sell or mortgage the property of the corporation.” . 1 Rorer, Railroads, 667. “A general agent of a corporation has no power to convey.the real estate of the corporation; to effect such an object a specific authority is indispensable.” Stow v. Wyse, 18 Am. Dec. 99. Some of the authorities hold that in order to bind the dedicator other persons must have expended money or acquired rights on the faith of the dedication, and in the absence of some such circumstances it seems difficult to see how a dedicator can be bound irrevocably, he receiving no consideration, perhaps, and other parties not having made any expenditure on the faith of the dedication. I should have stated a few lines back that we cannot say that an act of dedication binds the company when there is not a shadow of evidence competent to bind it; that is, action of its directors, the only competent and authorized agent of the corporation. Nothing has been shown to bar the company in future from repudiating its dedication. If time enough had elapsed to bar the company by reason of the adverse continuous, open user by the public, then this way wordd be a highway valid against the company in favor of the public. Then the public right would rest on the statute of limitations, not on dedication and acceptance. 9 Am. & Eng. Ency. L. (2d ed.) 67. But it is not shown that the period required to thus give title has expired. Thus I see no error in the refusal to give defendant’s instructions. Another point of error is that after a witness had given his opinion that the plaintiff’s property had been damaged one-half, and stated that that opinion was based considerably upon the fact that the railroad company might close up the lot which had been opened, counsel for the defendant asked the witness the question, “If the company cannot close up its lot, and assuming that it will be left open for use, what would you sav would bo the decrease in value then?” and the court refused to allow the wdtncss to answer the question. This question is — 402 — based on the assumption that there was a valid, binding dedication, when none was shown; it assumed also that the company would not and could not close the way, when nothing was shown to debar it, adequate to debar it from so doing, and therefore the court did not err in refusing to allow the question to be answered. The point is made by a second brief hied by counsel for the plaintiffs that a corporation cannot make a valid dedication for the reason that it can perform only certain functions, is incorporated to do only certain things, and cannot do other things not contemplated by its charter; in other words, that such an act would be ultra vires. Some English cases are cited to this effect; but in the immense ocean of conflicting and confusing cases, we can hnd authority for almost any proposition. It is very well settled by modern authority that corporations may dedicate land to the public use. Elliott on Roads & S. (2d ed.) sec. 146; 2 Elliott on Railroads, sec. 425. So it do not interfere with the purposes for which it was incorporated, a privato corporation may make a dedication. 9 Am. & Eng. Ency. L. (2d ed.) 33. The point is made that two of the plaintiffs’ instructions assume that the plaintiffs were entitled to damages by the language that “the jury in estimating the amount of damages may take into consideration,” etc. I do not think this language assumes the right of recovery. Surely the jury would understand that the question of damages depended on evidence, and that it was with the jury to pass on such evidence, and that the court did not intend to express an opinion upon that point. We must not so lightly assume that a jury does not understand its functions, and .will so easily bo mislead in the performance of its duty. Besides, I think the language is very common in instructions telling the jury, how to estimate damages, and is not inapt or improper. And still' further, if these instructions taken alone were objectionable on that account, the objection would be obviated by the fact that another instruction for the plaintiff reads: “The court instructs the jury that if they believe from the evidence that the property of the plaintiffs has been permanently injured and its value depreciated by the laying and construction of the embankment and railroad track, and that the defendant constructed and laid, or had constructed and laid by its agents, — 403 — tlic said embankment and track, then the plaintiffs are entitled to recover damages,” thus plainly telling the jury that they could only find damages on proof of the facts supposed in'the instruction. Plaintiffs’ instruction Ho. 3 as to the mode of assessment of damages is supported by principles contained in Stewart v. Railroad Co., 38 W. Va. 438; Blair v. City of Charleston, 43 Id. 62; Quinn v. Railroad Co., 46 Id. 151. I should have noticed in its proper place the position taken by defendant’s counsel that rvlrat it did in occupying the streets and in their place dedicating a passage over its lot, was an exehang-justified by section 48, chapter 54, Code, 1899, providing that a corporation may take and hold “under any grant or ordinance made by a municipal corporation any interest or right such municipal corporation may have in any street, alley or public ground, and may in exchange therefor, in whole or in part, dedicate or otherwise secure to public use another street, alley or parcel of ground out of real estate owned by such railroad corporation.” How, it is apparent that there is no justification under this section, because there is no warrant for a railroad company to take a street and make such exchange, unless a statute allows it, and this statute docs not allow it, .because it in terms applies to incorporated municipal corporations, and contemplates a treaty of exchange between the two corporations evidenced by proper memorials of the consent of the municipality, if not of the actual dedication also. Moreover, under that section what the company did was not of such a character as to constitute such a dedication in such exchange, oven if the statute applied. Under that statute there must be an organized town in order to become a party to the exchange. It should be affirmatively shown that the exchange ivas declared by the directors of the company. It does not appear that the company did any acts or made any declarations expressive of such dedication at the time and constituting a valid dedication. There was no express dedication ; at best, only an implied dedication, -and the mere tearing down the fences on the lot, and the passage of 'people over it are not enough. Theró was no consent of the county court. Therefore we affirm the judgment. '. ¿ 1 Affirmed