Unfortunately, due perhaps to the procedural irregularities commented upon in the main opinion, the record in this matter is rather confusing. However, I believe that the following general statement may be accepted as either admitted, proven, or subject to judicial notice by this Court under the holding in Beasley v. Town of Beckley, 28 W. Va. 81. See also Jones on Evidence (2d Ed.), sections 399 and 493.
Prior to the year 1879, James Montgomery owned in fee simple one hundred and sixty-one acres of land which is now the principal part of the Town of Montgomery, subject to prior disposition of several small parcels within that boundary which likely formed a part of an unincorporated settlement called Coal Valley. In this record there is no date fixed concerning the time of James Montgomery's death, but a little prior to the year 1879, his heirs at law or devisees, the record not being clear as to which, employed a civil engineer named I. J. Settle, who, based upon an actual survey, prepared a plat of the boundary referred to, showing it sub-divided into lots, blocks, streets and alleys, and filed an authenticated copy of the plat in the office referred to as the office of the town recorder of the village of Coal Valley, turning the *Page 323 original over to the heirs at law of James Montgomery. Using the Settle plat as a means of locating individual lots offered for sale and as a basis for describing the property conveyed by their deeds, the heirs of James Montgomery proceeded to dispose of quite a number of the lots shown upon the plat, not, however, including any directly involved in this proceeding. In the year 1891, under chapter 47 of the then Code, seven petitioners filed in the Circuit Court of Fayette County their petition for a municipal charter to be issued to the Town of Montgomery, alleging that a majority of the qualified voters residing within the boundary of one hundred and sixty-one acres, a map of which accompanied the petition, favored the granting of the charter which was immediately granted. After the charter was granted to the Town of Montgomery and in the year 1895, acting pursuant to a decree of sale in what appears to have been a proceeding brought for the purpose of settling the estates of James and Amanda Montgomery, Sinclair and Gaines, special commissioners, conveyed to J. W. Montgomery, predecessor in title of A. L. Huddleston, among other lots, Lots 2 and 4 in Block 10, now owned by Huddleston, who, together with Mrs. Huddleston, are the plaintiffs in this cause. This deed describes the property conveyed as lying in the town of Montgomery and refers to the Settle map for lot and block number.
The foregoing, I believe, is an accurate resume of what I regard as the controlling and undisputed facts.
In order to determine whether the Huddlestons have the right to keep the twelve-foot alleyway open from behind their lots to Madison Street, to my mind, it becomes necessary to answer two pertinent questions: (1) What right, if any, did the Huddlestons or their predecessors in title acquire under the terms and provisions contained in the conveyance from the heirs of James Montgomery? And (2) what right, if any, are they entitled to assert based upon a claimed public dedication of the property included in the Settle plat from which their lots and all other property within the Montgomery boundary derive description? *Page 324
There can be little doubt that sale of town lots from a plat showing a tract of land divided into lots, blocks, streets and alleys creates a private easement in common over the streets and alleys in which the purchasers of lots become the dominant estate and the interest retained by the owner becomes the servient estate. 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; Rudolph v. Glendale Improvt. Co., 103 W. Va. 81,137 S.E. 349; Flanagan v. Brown, 107 W. Va. 315,148 S.E. 113; Sommerville v. Carpenter, 110 W. Va. 167, 157 S.E. 160. This is so regardless of whether the plat is recorded or is not. Cook v. Totten, 49 W. Va. 177, 38 S.E. 49, 87 Am. St. Rep. 792; Edwards v. Moundsville Land Co., 56 W. Va. 43,48 S.E. 754. This principle is called the "Unity Plan" to which this Court is definitely committed. 1 Elliott on Roads and Streets (4th Ed.) 157; 2 Thompson on Real Property (Perm. Ed.) 37. There is some confusion in our West Virginia cases as to whether the lot owners become vested with an easement covering the entire boundary shown by the plat or only in that part thereof which, evidently in the judgment of the court before which the matter might be presented, will permit the unhampered, free enjoyment of their individual property. Undoubtedly, they are entitled to as much of the platted easements as will assure the full enjoyment of their property, the only restriction being that the servient estate must not be overburdened. Since owners of the servient estate created the easement by the exhibition of a plan shown by a plat including the entire boundary and selling property on that basis, the preservation of the entire plan should not be construed as an uncontemplated burden upon the servient estate. I, therefore, believe that the declarations of this Court could be reconciled by restricting the use of a private easement in common so created to method of use, and not to area. However, we are not confronted with that question in this case, and, I refer to it only to note what I believe to be a slight confusion that a careful reading of the following cases will *Page 325 reveal. 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; Mason v. Wall, 96 W. Va. 461, 123 S.E. 457;Rudolph v. Glendale Imprvt. Co., 103 W. Va. 81, 137 S.E. 349;Flanagan v. Brown, 107 W. Va. 315, 148 S.E. 113; Sommerville v.Carpenter, 110 W. Va. 167, 157 S.E. 160; Deitz v. Johnson,121 W. Va. 711, 6 S.E.2d 231. The opinion in the Edwards case makes it quite plain that the purchaser of lots shown upon an unrecorded plat, generally used and referred to in the conveyance to him, acquires an easement entitling him to the use of all the streets and alleys shown upon the plat, and, therefore, syllabus one in the same case, when read in the light of the opinion, restricts only the method of use and not the area.
There can be no doubt that the owners of lots in Block 10 became owners in common of private easements appurtenant covering the use of the streets and alleys in that block when the deeds to their predecessors in title were executed, resting, as they did, upon the Settle map. The right to the use of a private easement, however, can be abandoned and ownership of the ground acquired by adverse possession, which, as I understand, is claimed by the defendants here.
However, there can be no abandonment nor adverse possession of streets and alleys dedicated to public use, so that, in my opinion, when the town of Montgomery was incorporated in 1891, accepting and approving unrestrictedly the plan of the Settle map, and began to expend public money on the streets and alleys within its boundaries, it thereby accepted the entire offered public dedication that had begun by and continued under, the general use of the Settle map. See 13 Rawle C. L., page 30. If that be true, we are concerned only with the possession prior to 1891 when the town of Montgomery became a corporate body, for there has been no formal surrender of the public dedication and possession does not run against it. *Page 326
There is scant proof of possession during the time referred to and since the parties to this proceeding were the holders of a common right, there must be a clear showing that the claimed possession was hostile, and not such as would inure to the benefit of all the common holders. Higgins v. Suburban Imp.Co., 108 W. Va. 531, 151 S.E. 842. I do not think this record makes that showing. In addition, either adverse possession or abandonment constitutes an admission of the senior title and places the burden of proof clearly upon the party asserting it. I do not believe that burden has been met in this matter.