Under an act of the General Assembly of this State, passed in 1831, a company was organised, called the Weldon toll-bridge company, with power to build a bridge across the Roanoke river, at Weldon, and to charge and receive toll from passengers. It was further empowered by subsequent acts, to borrow money, and to issue bonds and other evidences of debt.
In 1832, an act passed the Legislature of Virginia incorporating a company called the Portsmouth and Roanoke railroad company for sixty years, which, in the same year, was sanctioned and adopted by the Legislature of this State, and, under the two acts, the company by that name was duly organised.
In 1833, an act was passed by our Legislature, authorising this rail-road company to subscribe to the stock of the bridge *Page 127 company, and to extend their rail-road across the river upon the said bridge.
These two companies continued to use the bridge jointly until 1840, when the General Assembly of this State, in that year, passed an act authorising the transfer of the rights and property of the bridge company to that of the rail-road, and a merger of the corporate existence of the former in that of the latter; which transfer was duly made, according to the terms of the act, and thence-forward the Weldon toll-bridge company ceased to exist as a corporation. One of the terms upon which this transfer was made, was, that the rail-road company should pay all the debts of the bridge company.
Among the debts owing by the Weldon toll-bridge company was one of the Board of Internal Improvements of this State for $7945, with interest. On the 20th of May, 1842, the Portsmouth and Roanoke rail road company, by a deed in trust of that date, conveyed to Edward B. Dudley, the said bridge and every part thereof, to secure the said debt due and owing to the Board of Internal Improvements.
The Weldon toll-bridge company was also indebted to Rochelle and Smith, for work done on the bridge, in the sum of $16,000, for which the Portsmouth and Roanoke rail-road company gave their note. This not being paid at its maturity, suit was brought upon it in the Superior Court of Halifax county, and at Fall Term, a judgment was obtained for that amount with interest. Upon this judgment an execution was taken out, directed to the sheriff of Northampton, by virtue of which, the equity of redemption in that part of the bridge, lying in that county, was levied upon, and duly sold to the plaintiff for the sum of $10,000, he having, in the mean-time, purchased the said judgment from Rochelle and Smith.
In 1848, by concurring Acts of the Legislatures of Virginia and this State, adopting and combining previous Acts upon the same subject, the Seaboard and Roanoke rail-road company was incorporated, with power and authority to construct a rail-road from Portsmouth, in the State of Virginia, to the *Page 128 Roanoke river, in this State. Under these Acts, this company was forthwith organised.
Under an Act passed in 1846, the debt due to the Board of Internal Improvements, with others similarly situated, was transferred to the public treasury of the State.
In 1850, the Legislature passed an act, by which the public treasurer was authorised "to transfer and surrender to the Seaboard and Roanoke rail-road company, the mortgage held by the State on the Weldon toll-bridge, on condition that the said company execute to the public treasurer, for and in behalf of the State, the bonds of the said company, bearing interest at not less than six per cent."
Accordingly, the bonds of the company were executed to the public treasurer, and he, on 21st of January, 1851, formally endorsed and assigned the deed in trust, made to E. B. Dudley, to the said company, whereby this company succeeded to all the rights of the Board of Internal Improvements and of the State in respect to this debt and deed in trust or mortgage.
About the year 1846, the Portsmouth and Roanoke railroad company ceased to exercise the franchises conferred upon it by law, and became extinct as a corporation.
On the 4th day of August, 1851, E. B. Dudley, having made due advertisement, sold the bridge under the deed of trust, at public auction. this was done at the instance and request of the Seaboard and Roanoke rail-road company. At which sale, the plaintiff bid off the property at the sum of $19,000. Afterwards, on proceeding to comply with the terms of the sale, he insisted on retaining all the surplus bid by him, after paying the sum secured by the deed in trust, but this was objected to on the part of the defendants, and the whole sum of $19,000 was paid, and a deed was accordingly made to him by the said trustee. Before the mortgage or deed in trust was transferred from the Board of Internal Improvements to the State treasury, but after the plaintiff had purchased the equity of redemption, he applied to the Governor of the State, who was ex officio president of the board, to pay *Page 129 up the amount then due on the mortgage, and tendered him the money for that purpose, demanding, at the time, that a conveyance should be made by him of the bridge as now contended for by him. This was refused by the Governor. On the occasion of the sale above stated, on paying the money to the trustee, Dudley, the plaintiff gave him notice of this tender to the president of the Board of Internal Improvements, and warned him not to pay interest on that debt after such tender, and that he should contend for the whole balance minus the value of the small part in Halifax, after deducting the debt and interest up to the time of the tender.
The prayer of the bill is for an account of the fund in the hands of the trustee, and that, after discharging the debt, with interest, he may have a decree to his portion of the overplus, and for general relief.
In behalf of the defendants it was shown that the Weldon bridge, which is now the bridge of the Seaboard and Roanoke rail-road company, is about five hundred and ninety yards long, and that the larger part of the same is over an island in the Roanoke river, called Carter's or Burke's island; that this island is formed by a small shallow and rocky channel, called Little river, which leaves the main stream some distance above the site of the bridge, and unites with it again below; that the whole of this island, as also the land covered by the water of Little river was, at the time this bridge was constructed, the property of Mary Carter, the wife of John Carter, who, by virtue of his marriage, had a tenancy for their joint lives in the same; that Carter consented that the bridge in question might be erected upon his wife's land, but that there was no such permission given by her; that she made no conveyance of any privilege, easement or right to, or in, the same received no equivalent in the way of damage, and that there was no judicial proceeding had to condemn the land to the use of the said company; that Carter died in the year 1843, and his wife in 1847; that her estate in this property descended to William R. T. Williams, and Martha, the wife of John J. Bell; that Williams, on the 6th *Page 130 of March, 1848, sold his moiety thereof to bell, who, with his wife, by deed, properly authenticated, conveyed all the land upon which the said bridge stands, from the low-water mark, on the main river to, and beyond, the northern butment, with a space of eighty-feet on either side of the bridge, throughout this extent;, to the defendants, the Seaboard and Roanoke rail-road company, in fee simple; that the southern butment of this bridge, and a small portion of the superstructure, lying in the county of Halifax, are the undisputed property of this company, purchased under a judgment and execution issuing from the Superior Court of Warren county.
The defendants, the Seaboard and Roanoke rail-road company, in their answer, say, that when the said bridge was sold by the trustee, he only professed to sell such right as he had acquired by the deed of trust, and that as the part above described was vested in them, only the part spanning the main channel from the island to the Halifax shore vested by such sale in the plaintiff; they insist that the surplus of the money, therefore, ought to be divided between them and the plaintiff, in proportion of their respective interests in this property, as above set forth.
The plaintiff, in proportion of their respective interests in this property, as above set forth.
The plaintiff, in an amended bill, admitting the facts in reference to the title, contended,
1st. That there was a presumed dedication of the land in question, to the use of the public, the same having been used by the bridge company, and their assignee, the rail-road company, for ten years.
2nd. That the deed from Bell and wife to the defendants, the Seaboard and Roanoke rail-road company, passed only the land, and did not pass the piers, butment and superstructure of the bridge.
3rd. That when the bridge was sold by the defendant Dudley, the whole of it was offered (as the whole had been advertised) for sale; that this sale was made at the instance and for the benefit of the Seaboard and Roanoke rail-road company, and that the president and one of the directors of that company were present, controlling the sale and bidding for the *Page 131 property, and that no suggestion was made by them, or any other person, that less than the entire property, in the bridge, was offered and sold; that these defendants said nothing of any title derived from Bell and wife, and that he had no knowledge of such claim until after the sale and the payment of his money, when these defendants seized upon it, and have, under that claim, held it ever since. He says it would be against conscience for them now to set up that title, and he prays, in addition to his other prayers, that they may be compelled to convey this title to him. He also prays, that in the ascertainment of the surplus he may not be charged with interest on the debt, secured by the deed in trust, from the time that he made a tender to the president of the Board of Internal Improvements.
But if the court shall be of opinion that he is only entitled to the title of the defendants on the condition of paying all the money bid by him, he prays that a decree may be made in his behalf of those terms.
The defendants answered, severally, the amended bill, denying the allegations, and insisting that the trustee sold only the right vested in him by the deed in trust, and averring that the deed from Bell and wife, was not only spoken of, and its contents discussed in the presence of the plaintiff, but that the deed itself was produced on that occasion, before the land was cried off to him. They, therefore, aver that he had express notice of this title, and that there was no suppression or other unfair means used to entice the plaintiff into the purchase.
There was replication to the answers, and proofs taken, and the cause being set down for hearing, was sent to this Court for trial. 1. The plaintiff alleges, that by his purchase at the sale, made under execution, by the sheriff of Northampton *Page 132 county, in January, 1843, he became entitled to the equity of redemption in all the bridge, except that part lying in the county of Halifax, the equity of redemption in which part, he admits, belongs to the defendants, the Seaboard and Roanoke rail-road company; and he insists, that the excess of the proceeds of the sale, made by the defendant Dudley, in August, 1851, after deducting the amount secured by the deed of trust, should be divided between the defendants, the Seaboard and Roanoke rail-road company, and himself, in the proportion of their respective interests in the equity of redemption, that is, in the proportion of the value of the part lying in the county of Halifax, to the value of the party lying in the county of Northampton.
The defendants, the Seaboard and Roanoke rail-road company, oppose this claim, by denying that the plaintiff acquired the equity of redemption in that part of the bridge lying in the county of Northampton, by his purchase at execution sale; for, as they insist, the Portsmouth and Roanoke company, the maker of the deed of trust to Dudley, owned but a "term of years" in the bridge, and the equity of redemption therein was not liable to execution sale.
We are of opinion that the estate of the Portsmouth and Roanoke company in the bridge, was not a "term of years," but a fee simple, and consequently, the equity of redemption was subject to sale under execution. The company was authorised, by its charter, to purchase land or have it condemned for the purposes of the road, and there is an express provision that the land, so acquired, should be held and owned by the company in fee simple; so that although the existence of the company was limited to sixty years, yet the land, acquired by it, was owned in fee, and the company could transfer an estate in fee therein.
By the amended charter in 1840, it is provided, that "the Weldon toll-bridge, shall vest in, and be owned and possessed by, the Portsmouth and Roanoke rail-road company, in the same manner that all other property, real and personal, which *Page 133 has been acquired by said Portsmouth and Roanoke rail-road company, is owned, held and possessed."
It follows, that the deed to Dudley, having apt words therefor, conveyed an estate in fee simple, and that the equity of redemption of the company, was subject to sale under execution, by force of the Act of 1812; indeed, the title of the defendants to the equity of redemption, to that part of the bridge lying in Halifax, was acquired by a sale, under an execution issued from the Superior Court of Warren county; so, both parties claim in the same mode; and if the title was not valid, the Portsmouth and Roanoke rail-road company having lost its corporate existence, there would be no one to call upon the defendant Dudley to account for the excess of the trust fund. As both parties assumed that an equity of redemption is divisible, and may be sold in separate parcels, it is unnecessary to express an opinion upon the question; it alluded to merely to say that we have formed no opinion in regard to it.
2. The defendants, the Seaboard and Roanoke rail-road company, oppose this claim by denying that the plaintiff, (if by his purchase at execution sale, he acquired the equity of redemption in any part of the bridge,) acquired it in that part lying in the county of Northampton, which is erected over the land, from low-water mark at the north side of the river, across the island and Little river to the north butment; for, as they insist, this part of the bridge was not owned by the Portsmouth and Roanoke rail-road company, and, consequently, did not pass by the deed of Dudley; and they contend that the plaintiff, is entitled to any part of the excess, is only entitled to such part as is in proportion to the value of that part of the bridge lying over the channel of the main river, compared with the value of the part lying in the county of Halifax (about which there is no dispute), and also the value of that part lying over the land on the Northampton side, from low-water mark to the north abutment; in other words as the value of the middle section (as it may be termed) is to the value of the rest of the bridge. *Page 134
In support of this position, it is averred, that the land, upon which the "north section" of the bridge is erected, belonged, at the time of its erection, to one Martha Carter, the wife of John Carter; that said John died in 1843, and Martha in 1847, leaving, as her heirs, one Williams, and Martha, the wife of one Bell; that Williams sold to Bell in 1848, and Bell and wife, in 1849, sold to the defendants, all the land covered by the bridge, and a slip, eighty feet wide, from low-water mark to the north butment, whereby, these defendants insist, the title to this part of the bridge vested in them. It is admitted, that the bridge was built on said land by the consent of John Carter, but it is denied that there ever was any judicial condemnation of the land to the use of the company, nor] was there ever any conveyance of the same, or any grant of the privilege to erect the bridge, made by Martha Carter to the company, but the bridge was built without her consent, and without any damages paid or secured to her.
To meet this objection, the plaintiff, by an amended bill, admitting the facts in reference to the title of the land, and the deed made by Bell and wife to the defendants, the Seaboard and Roanoke rail-road company, insists, in the first place, that there was a presumed dedication of the land to the bridge company, the bridge having been used by that company and the Portsmouth and Roanoke rail-road company, from 1837, until about 1845, when the company lost its corporate existence, say eight years in all, and two years after the death of John Carter, during which time, Martha Carter, was not under the disability of coverture. 2nd. That the deed to Bell and wife, (if there was no dedication,) passed only the land, and did not pass the piers, butment and superstructure of the bridge. 3rd. That the president and some of the directors of the company were present, and bid for the bridge, at the sale made by the defendant Dudley, and did not make known, in any manner, that the company claimed the bridge, or any part thereof; but concealed the fact that any claim was set up, other than that which Dudley was about to sell, whereby the plaintiff was induced to bid, and become the *Page 135 purchaser, under the belief that he would acquire title to the whole bridge; and the prayer is, that the defendants, the Seaboard and Roanoke rail-road company, may be decreed to release to the plaintiff any title that may have been acquired under the deed of Bell and wife.
As to the question of a dedication: The user of the easement, by the bridge company and the Portsmouth and Roanoke rail-road company, after it succeeded to the rights of the former, was continued but for eight years. This is too short a time to raise a presumption of a grant, or in which to acquire title to an easement by prescription. Twenty years is the shortest period that is allowed to have that effect. This was admitted by the counsel for the plaintiff; but he insisted, that the principle of a dedication to the use of the public, was altogether different from that of prescription; the former is not based on the idea of presuming a grant, and no particular length of time is necessary to give it effect; it may under peculiar circumstances, have effect immediately
The plaintiff cannot sustain himself upon the principle of a dedication to the use of the public. John Carter, at the time the bridge was built, had only a particular estate; the fee was in Martha Carter, his wife. It is settled, that a dedication by the owner of a particular estate, will not bind those in remainder or reversion, or prevent them from stopping the way dedicated, when the estate comes into possession; Wood v. Teal, 5 B. and A. 454. But we will waive this objection, for the sake of avoiding the pint presented by the fact, that the bridge was used for two years after Martha Carter was discovered, and put out opinion upon the broad ground, that the principle of dedication has no application to the case.
What is the principle? It is this: if the owner does an act, whereby he signifies his intention to appropriate land to the use of the public, as a highway or street, or square, to be used by the public as a pleasure ground, or the like, in individuals, in consequence of this act, purchaseproperty, or build houses, with reference to its being so used by thepublic, and become interested to have it so continue, he is precluded *Page 136 from resuming his private rights of property over the land, because it would be fraudulent in him to do so. When individuals have become interested i reference to the use of the land by the public, the dedication takes effect immediately. Without such particular showing, lapse of time, as in cases of prescription, raises a presumption that a resumption of the private right would be injurious to interests acquired on the faith of its continuing to be used by the public, and the resumption would, therefore, be fraudulent. The dedication to public use does not operate as a grant, but as an estoppel in pais. The doctrine is adopted, ex necessitate, because there can be no grantee, and regarding it, not as transferring a right, but as operating to preclude the owner from resuming his right of private property, on the ground that it would be fraudulent in him to do so. We are freed from the necessity of inventing an anomalous interest, which passes without any legal ceremony, and vests without any legal owner. See notes to Dovostan v. Payne, 2 Smith's Leading Cases, 90, where the English and American cases are examined with great ability, and the above principle is clearly deduced.
By way of illustration: if the owner of land makes a street opening into ancient streets at both ends, and builds a double row of houses, and sells or rents the houses, this is instantly a street or highway; Woodyer v.Hadden, 5 Taunt. 125. So, if the owner of a tract of land lays it off into streets and a public square and lots, and sells the lots, this is forthwith a dedication of the streets, and square; City of Cincinnati v. White, 6 Pet. 431; New Orleans v. The United States, 10 Pet. 662.
In our case, there is not a single element upon which the principle of dedication rests. The land was not appropriated by the owner to the publicuse. On the contrary, the bridge company entered and appropriated the land to its own purposes. The suggestion, that the company intended the bridge to be used by the public as a "toll-bridge" has no bearing on the question. The same may be said of every rail-road. The point is, this property was not to be that of the public, *Page 137 but was to be the private property of the company, to be used by it for gain; and the circumstance, that its use would be of public convenience, is entirely collateral. So, the dedication was not to the public.
No individuals had acquired property or interests, in reference to this land, as having been dedicated to the public, and without "that particularshowing," as we have seen, the dedication can only be perfected by laps e of time. In the last place, here was a company capable of purchasing and taking by grant; so the necessity, because there could be no grantee, did not call the principle of dedication into operation, or justify and departure from the ordinary modes of acquiring title to land.
It was the folly of the company to build the bridge without securing the title to the land, and the interest is so large, that we cannot help being astonished at the negligence or ignorance of its agents.
2. If one enters upon the land of another, and builds thereon a house, bridge or other fixture, the owner of the land is entitled to the house, bridge or fixture. This is familiar learning. Whether the party can, in equity, recover compensation from the owner, who stands by, and sees him expend his money, depends on circumstances. Albea v. Griffin, 2 Dev. and Bat. Eq. 9. But this is beside our question. We are of opinion that the deed of Bell and wife, did pass to the defendants, the Seaboard and Roanoke rail-road company, the piers, butment and superstructure of the bridge, as well as the land on which it was situate.
3. This is a question of act. The defendants, in their answer to the amended bill, aver, that the plaintiff had full notice of the existence of the deed of Bell and wife, before he became the purchaser; that the defendant Dudley, at the opening of the bidding, stated, in the presence of the plaintiff, that he sold only such right and interest as he had a right to sell, under the deed of trust to him, and that Bell, at the time, produced, and either read or recited, the contents of a copy of the deed, which had been executed by himself and wife, to *Page 138 the defendants, the Seaboard and Roanoke rail-road company, in the presence and hearing of the plaintiff. These facts are proven by the witnesses Simmons, Crowder and Bell, and fully establish that the plaintiff had notice of the claim of the defendants, under Bell and wife, before he purchased. It is true, the purpose avowed by Bell, and his reason for reading a copy of the deed, was to assert his own rights, if he had any; but nevertheless, the plaintiff, was thereby informed of the fact, that the defendants had procured the execution of that deed. Whether the defendants had thereby acquired any rights, and to what extent, was a question which could not then be determined; but notice of the existence of the deed, was sufficient to prevent the plaintiff from having the aid of the principle of equity, which he invokes for the purpose of being relieved from the effect of that deed. He had notice, and was, therefore, not deceived; although he may have been mistaken as to the legal effect of the deed.
It must be declared to be the opinion of the Court, that the plaintiff has no title to the "northern section" or that part of the bridge on the north side of the river, from low-water mark to the north butment.
3. Having decide that the plaintiff is not entitled to the north section of the bridge, it follows that the mode of dividing the surplus suggested by him must be rejected. We also reject the mode suggested by the defendants. As the Portsmouth and Roanoke rail-road company did not own the north section, it did not pass by the deed of trust to the defendant Dudley, and was not sold by him, and must consequently be put out of the case.
The excess of the fund, after deducting the debt secured by the deed of trust, together with interest, will be divided between the plaintiff and the defendants, in the proportion of the value of the middle section, to that of the south section or part lying in the county of Halifax; for this purpose a commissioner will be appointed to make the valuation and division. The cost will be paid out of the fund. No abatement of interest upon the debt secured by the deed of trust, is *Page 139 allowed; became the plaintiff, at the time he made the tender, required, as a concurring stipulation, that a release of the lien in the whole bridge should be executed to him; whereas, the defendants, the Seaboard and Roanoke rail-road company, had the equity of redemption in the south section.
PER CURIAM. Decree accordingly.
NOTE — His Honor, the CHIEF JUSTICE, was detained at home for several days during this term, by the extreme illness of one of his family. *Page 141