A. L. and Sallie Huddleston instituted this suit in the Circuit Court of Fayette County as property owners in Block No. 10 in the City of Montgomery against other property owners in the same block, to require defendants to remove certain designated obstructions from an alleged alley, and to perpetually enjoin the further obstruction thereof. This appeal is prosecuted to an order of the Circuit Court denying the relief prayed for and dismissing plaintiffs' bill, after submission of the cause on bill, answer and depositions.
The land here involved, as well as a greater part of the land upon which the City of Montgomery is now situated, was owned prior to 1879 by James Montgomery. In that year, at the instance of James Montgomery or his heirs, the same was laid out in about fifty blocks and several hundred lots by I. J. Settle, a civil engineer, and called Coal Valley City. On the Settle map, streets and alleys were provided so that each lot fronted on a street, with a twelve-foot alley extending through the block and in the rear of each lot. The Settle map was revised in the year 1919 by H. A. Gentry, and a copy of the revision recorded in the office of the County Clerk of Fayette County in the year 1922. The community did not expand to any great extent until about 1912, but since that time the growth thereof has been such that the original Montgomery land is now practically occupied by residences and business buildings, the population of the municipality being now about three thousand.
Block No. 10 was designated as such in the Settle and Gentry maps and is bounded, as originally, by Fourth Avenue on the North, Adams Street on the East, Third Avenue on the South, and Madison Street on the west. A map of Block No. 10 was prepared in 1937 by E. B. Roeser, *Page 315
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 316 showing the same as originally laid out and the extent of the present encroachments on that portion of the block designated as the alley. A copy of the Roeser map is filed herewith, from which it will be seen that the alley runs from Madison Street to Adams Street, through the center of the block, a distance of some four hundred feet. This alley at the present time is open only at the Adams Street end, for a distance of about one hundred feet by E. P. Champe for his own purposes. The remainder thereof has never been opened or used as an alley, and photographic exhibits show the alley to be entirely closed on the Madison Street end.
Referring again to the Roeser map, Lot 4 was acquired by Sallie Huddleston in 1919 and Lot 2 by A. L. Huddleston in 1932; defendants own Lots Nos. 1, 11 and 12, and 13 and 14. Beginning with the Deans' Lot No. 1, it will be observed that the alley is obstructed by the following: three or four feet of porch on a residence constructed about 1895 by J. W. Montgomery and a stone wall built by Deans about 1917; in the rear of Lots Nos. 11 and 12, part of a building constructed about 1912 and a garage and concrete driveway placed there about ten years prior to the institution of the suit; a fruit tree, gardens, vines and shrubbery back of Lots Nos. 2, 3 and 4, the fruit tree being from twenty-five to thirty years old; a summer kitchen, hedge, lawn and shrubbery placed at the rear of the Claypool Lots Nos. 5 and 6 about 1911; and the servants' quarters and part of the residence of Annie F. Champe so constructed in 1882. The relief herein sought, if granted, would open the alley from the eastern property line of Lots Nos. 4 and 14 through to Madison Street.
The deed by which defendant Dalporto and wife acquired title to Lots Nos. 11 and 12 in 1932, refers to the lot numbers and block "as laid down on a map of the City of Montgomery * * * as prepared by the late I. J. Settle, of record in the office of the Clerk of the County Court of Fayette County", and the metes and bounds therein run to and along an alley. The deed to Deans' predecessor in title conveyed "lot number 1, in Block *Page 317 10, as per Settle's map of the town of Montgomery", and the metes and bounds in the deed also run to "an alley". Defendant Sarah Dent's deed to Lots 13 and 14 and part of Lot 12, refers to Third Avenue and Madison Street and the lot numbers, with metes and bounds running to and with an alley, although there is no reference to the Settle map. W. L. Montgomery's title to Lot 3, Block 10 came to him by inheritance from his grandfather, J. W. Montgomery. There is no assertion that defendants have any record title to the portion of Block No. 10 laid off as the alley. However, reference is here made to the deeds by which defendants or their predecessors acquired title to indicate the recognition therein of the existence of the original map and the streets and alleys as laid out thereby.
Before discussing the merits of this litigation, we refer to certain procedural defects as to parties, abatement and revival and service of process. Summons commencing the suit was issued for D.C. Deans, Arnelio Dalporto, Letizia Dalporto, Sarah Dent and William Montgomery, the three defendants first named therein being personally served, as shown by the return. Sarah Dent died before the institution of this suit, but her heirs were not made parties thereto and the summons was served on her daughter.
William L. Montgomery was not personally served with process, the return stating, "he being out of the State of West Virginia, but summons left at his place of residence." Arnelio Dalporto became insane during its pendency, and it is attempted by stipulation to waive scire facias and revival. There is an assertion in brief of appellees that D.C. Deans died some time during the pendency thereof. This condition of the record prevents us from passing on the rights of persons who were not properly before the trial court at the time of the entry of the final decree. We find no defective procedure in the trial court as to Letizia Dalporto and therefore hold that this is sufficient for the purpose of determining a general principle which will also apply to other persons *Page 318 when they or their rights are properly before the trial court, in accordance with the statutes of this State dealing with service of process, abatement and revival, and descent of title to land.
It appears that the City of Montgomery is a growing municipality and that the land within its territorial limits was laid out by the owner thereof into lots, streets and alleys. From the exhibits appearing in this record, we observe that Block No. 10 is occupied by residences and other structures. All the defendants, except William L. Montgomery, by their joint answer assert that the alley has been abandoned; that they have title to the portions thereof occupied by them by adverse possession, and that laches of plaintiffs and their predecessors in title estops the plaintiffs from showing their right.
The plaintiffs rely on the making of the Settle map; a long continued use of said map in describing parcels of land in Block 10 and the reference to the map and alley appearing in various deeds of conveyance.
There is a clear showing of an offer to dedicate the streets and alleys depicted on the Settle map. This offer, as well as the long continued acquiescence by the grantees of the dedicator, gives rise to an estoppel in favor of the lot owners, which prevents a revocation of that offer and the right to use the streets and alleys shown on the plat can not be withheld from them by other land owners who derive their title from the dedicator. Dietz v. Johnson, 121 W. Va. 711,6 S.E.2d 231. The municipality has not formally accepted the dedication of the streets and alleys. This case does not involve the responsibility of the city to open and keep the alley in repair, the controversy being between the alienees of the dedicator.
The Settle map was made at the instance of the owner or owners of the land; on it lots, streets, and alleys are delineated, and although the map was not recorded until the year 1922, lots in Block 10 were sold with reference thereto and without reservation. Under such circumstances the purchasers of lots in Block 10 are entitled to the immediate use of all the streets and alleys shown *Page 319 thereon which are necessary for the complete enjoyment of their property. Cook v. Totten, 49 W. Va. 177, 38 S.E. 491, 87 Am. St. Rep. 792; Edwards v. Moundsville Land Co., 56 W. Va. 43,48 S.E. 754; Griffin v. Richardson, 83 W. Va. 442,98 S.E. 523; Rudolph v. Improvement Co., 103 W. Va. 81, 137 S.E. 349;Dietz v. Johnson, supra. The rights thus acquired by the lot owners are in a measure limited by necessity. Mason v. Wall,96 W. Va. 461, 123 S.E. 457. The City of Montgomery is a populous municipality; many residences and other structures having been erected therein. In other words, it is an actual town. The rule invoked in the case of Mason v. Wall, supra, is, therefore inapplicable.
Have the plaintiffs lost their right to the use of the alley by abandonment, by adverse possession of defendants, or by laches and estoppel?
The acts of the plaintiffs or their predecessors in title, even if showing abandonment, would not extinguish that right as to other lot owners. However, the acts of the abutting lot owners seem to show a permissive use of the alley rather than any intent to abandon. The alley seems to have been occupied by persons who owned land on each side thereof, in which condition it remained until the institution of this suit. Even if the plaintiffs have the right and power to abandon the alley, which we believe they do not, the factual showing does not support a conclusion that the plaintiffs and their predecessors in title have relinquished their rights.
The defendants can not invoke laches against plaintiffs to defeat the purpose of their common grantor in dedicating the alley. Defendants are charged with knowledge of the existence of the alley. The instruments of conveyance by which they acquired their title made reference thereto or to the Settle map on which an alley is shown. The knowledge of the defendants was equal to that of the plaintiffs. Under this state of facts an estoppel does not exist as against plaintiffs and in favor of defendants. The people who placed the structures in the alley did so at their own risk and should not be heard to *Page 320 complain when removal is enforced, the removal being a compliance with an easement imposed on the land by the original land owners.
That there was an intended dedication of all the streets and alleys laid down on the Settle map seems clear; improvement by public authority and user by the general public is likewise clear, such streets and alleys, in the main, having been improved and devoted to public uses. The land covered by the Settle map has been occupied to such extent that it may be said that the City of Montgomery is a congested area. Except in extraordinary cases, acceptance of a part is an acceptance of the whole. It seems clear to us that, in the circumstances of this case, there was an acceptance by public authorities of the dedication in its entirety. The case of Point Pleasant v.Caldwell, 87 W. Va. 277, 104 S.E. 610, is distinguishable from the instant case on factual grounds. That such acceptance may, as to certain alleys, be implied does not lessen the public's rights in the alleys affected thereby.
The right of purchasers of lots, who purchase in reliance on and with reference to a plat, are protected by our decisions. The dedication as to them, certainly to the extent of providing ingress and egress to lots so purchased, is binding, passes to successors in title and is irrevocable as against the original grantor and his successor in title, except through action of public authorities. A dedication and acceptance, express or implied, inure to the public to the same extent as to purchasers of lots. The situation thus created covers more than private rights. The public, by operation of law, becomes a party to the proposed dedication and the rights thus acquired by the public can not be destroyed by encroachments of owners of abutting property. In Schoenberg v. O'Connor, (N.J.)185 A. 377, it was held that, "Right of public to appropriate dedicated street to public use at any future time when their wants or convenience may require it, attaches immediately on dedication, and lapse of time will not impair such public right." Also, "Although municipality must accept street dedicated by *Page 321 property owner by formal adoption before it can be forced to repair street, acceptance is not essential to consummation of dedication so as to cut off owner from power of retraction or subject dedicated lands to public use whenever wants or convenience of public require street for that purpose." The case also holds that there need not be a grantee in existence to accept the dedication, and there is the further holding that no rights can be obtained against the public in dedicated lands by adverse possession. In Pence v. Bryant, 54 W. Va. 263,46 S.E. 275, 277, the following language is quoted with approval: "While acceptance by formal adoption by public authorities or by public user is necessary to impose on the public the duty to keep in repair a dedicated highway or street, still that is not necessary to the consummation of the dedication so as to cut off the owner from the power of retraction, or to subject the dedication to the public use wherever, in the estimation of such authorities, the wants or convenience of the public require it for the purpose for which it was originally given." We understand these holdings to be to the effect that the public, immediately upon an offer of dedication, becomes vested with an interest in the property affected thereby, of which it can take advantage at any time, and that such rights may not be taken away from the public by adverse possession.
The strict rule which we have adopted may not apply in case there is a substantial abandonment of the plat. In such cases the public interest may disappear, leaving only the rights of purchasers to unimpeded access to their property. No such situation is here, and, therefore, we need not further discuss the law applicable thereto. Here the purposes of the original plan have been fully carried out, and the necessity of adhering to the unity rule, strongly upheld by the decisions of this Court, seems clear.
Failure of the City of Montgomery to accept an offer of dedication of the alley and require that it be opened does not bar the public's right therein. Ralston v. Weston, 46 W. Va. 544,33 S.E. 326, 76 Am. St. Rep. 834. There *Page 322 can be no rightful permanent possession of a public way, and an injunction may be maintained by an abutting land owner to open the same. Pence v. Bryant, supra. Once it is determined that the alley is a public way, it necessarily follows that occupancy thereof or encroachment thereon does not deprive the public and the plaintiffs, who are members thereof, of the right to have the alley open throughout its length.
In accord with the principles set forth herein, we reverse the decree of the Circuit Court of Fayette County, and remand the case for further proceedings consistent herewith.
Reversed and remanded.