{dissenting)
I can not concur in the conclusion reached in the foregoing opinion for the .following reasons: The plaintiff in his declaration avers that he is, and long has been, the *239owner of a lot or parcel of land situated on Front street, in the town of West Columbia, Mason county, W. Va., bounded on the east by a passage-way or alley, and giving the other boundaries; that on said lot is situated bis dwelling-house, stable, and other buildings necessary to the free use and enjoyment of the same; and that he is, and long has been, occupying said lot, with the buildings thereon, as a residence, and the gravamen of his complaint is that, while he was so occupying, using and enjoying said property, the defendant by its agents and employes took possession of and appropriated to its own use said alley, forming the eastern boundary of his said property, and built thereon its road-bed, laying its track on the same, and using it as a railroad right of way, and running its locomotives and cars over the same, with out compensating him for the damage occasioned thereby, without condemning the land lying in said alley, as required by law, the plaintiff being the owner in fee of said alley to the median line thereof, thus'depriving the plaintiff of access to the back part of his said lot over and by means of said alley, which he had previously used and enjoyed as a right appurtenant, and also depriving him of the use of his stable and coal-house. The only evidence offered to show that the fee-simple of said lot was in the plaintiff' or to show its boundaries or abuttals was the oral testimony of the plaintiff himself, who stated that he owned the lot, giving the boundaries — no muniment of title of any character being offered — and the only evidence in support of the existence of said alley was the oral testimony of the plaintiff that said lot was bounded on the east by a street or alley, upon which or alongside of which was situated his .coal-house and stable, and that, by reason of the defendant occupying said alley with its railroad, he was compelled to abandon the use of his stable for stock, and to wheel his coal into his coal-house from another street, and by reason of the construction of defendant’s railroad on said street he purchased adjoining property to give him access to his outbuildings. Now, in order to show himself entitled to the use of said alley, it was first necessary to show by competent proof the existence thereof, either by dedication or that the original owner of the land *240had allowed it to become a public alley by allowing it to remain open and acquiescing in its use as such for a sufficient time to allow the public to acquire a right to use it as such. Grant that the plaintiff states that he used said alley; non constat that he used it long enough to acquire a right to the same, or «that he did not use it as a more trespasser, and he does not pretend to state that any other person ever used it as an alley or street. See Pierpoint v. Town of Harrisville, 9 W. Va. 215, where it is held: “Whore there has been no public use of a street, the owner may dedicate his land to the public for such use by acts and declarations, without a deed; but in such a case these acts and declarations must be deliberate, unequivocal, and decided, manifesting a positive and unmistakable intention to abandon his property to public use.”
The plaintiff having alleged that said alley was a public street or alley, the burden of proving such dedication is upon him. See Mining Co. v. Town of Mason, 23 W. Va. 211. And the plaintiff, as it seems to me, having utterly failed to show that said alley had in any manner been dedicated to the public, or that he was the owner thereof, and entitled to use it, I can not think the evidence was sufficient to support the verdict, and for that reason it should have beeu set aside on defendant’s motion “to set aside the verdict rendered, upon the ground that the damages therein awarded were excessive, and contrary to and not warranted by the evidence.”
Affirmed.