Town of Paden City v. Felton

Given, Judge,

dissenting:

I am of the view that the town has a perpetual right to the use of the ditch, either by prescription, implied dedication and acceptance, or because the purpose and manner of the construction and the long use thereof have constituted the same a natural water course, within the legal meaning of that term. In an attempt to demonstrate that this view is not fanciful, pertinent provisions of the bill will be quoted at length.

There is no question that the ditch was constructed in 1908 by the land company for the very purpose for which it has since been used and maintained, namely, to protect the streets, alleys and properties along the same from damage by waters. Neither is there any question that the ditch was maintained for that purpose by the land company from the time of its construction until the incorporation of the town in 1917, or by the town from the time of its incorporation until the obstruction of the ditch by the owner of Lot No. 3, a period of more than thirty years. I assume that no one will deny that it was the duty of the town to protect its streets and alleys from such damage and to prevent them from being “rendered impassable and reduced from hard packed streets and sidewalks to a morass”; to prevent such waters from damaging properties of “residents of the town”; and from creating “an unsanitary condition * * *.” The bill alleges that:

*147“After opening such drainage ditch, the Paden Valley-Company thereafter maintained the same through its plan and upon its various lots and streets shown thereon, including lot no. 3 on Boston street, and drained surface waters from its various lots, streets, avenues and alleys shown on such plan until the original incorporation of the Town. Subsequent to its incorporation, the Town thereafter maintained such ditch to the present time, by cleaning it out from time to time and by draining surface waters collecting upon the various lots, streets, avenues and alleys, especially Fifth Avenue of the Town, into the same. Such ditch has for many years to the present time served as the southeasterly gutter of said Fifth Avenue which is as yet an unpaved street although the northeasterly end thereof has been cindered by the Town. For many years after its incorporation the Town provided a covering over such ditch where it crossed Boston street prior to the improvement of said Boston street. Sometime prior to 1940 Boston street was hard surfaced from Fourth Avenue to Sixth Avenue by the Town and at such time the Town installed a tile drain under Boston street from Fifth Avenue to lot no. 3 on Boston street to carry such ditch under Boston street at that point.

“At all times from 1908 when such ditch was created and opened until sometime in 1946, such ditch has remained open continuously and uninterruptedly and existed as a public drainage ditch, and has been continuously and uninterruptedly maintained as such by the Paden Valley Company, the Town and the inhabitants thereof under claim of right to so maintain the same and without any obstruction, interference or objection from any person during all such time. During all such period of time such ditch Jras continuously and uninterruptedly existed, plainly, and notoriously apparent, open upon the various lands through which it has passed.”

Another allegation contained in the bill is: “* * * The' aforementioned drainage ditch across Boston street arid through lot No. 3 on Boston street, during all that period of time, was continuously and uninterruptedly open, was

*148worked and cleaned at various times during such period by the Town to the defendant’s knowledge, was continuously used to drain surface water, as hereinbefore mentioned, from Fifth Avenue and other properties in the Town, and was patently and apparently necessary for such purpose. Such ditch where it passed through lot no. 3 on Boston street is, and has been during all that period, within twenty-five (25) feet of the defendant’s said dwelling house. The said dwelling house of the defendant was built prior to 1917 and has from that time to the present set in such proximity to said drainage ditch.” Still another allegation is: “* * * At all times prior to 1946 such ditch has been continuously and uninterruptedly used, and has openly and apparently been maintained, as a part of the general system for the drainage of the majority of such lots and of said Fifth Avenue, dedicated upon such plán as a public street and accepted and used as such by the Town. Such ditch, during all that period of time, has been necessary for the carrying of surface water from said Fifth Avenue and as a part of the general system for draining the surface water from the lots on the Paden Valley Plan of the Town. Such ditch was originally created by the Paden Valley Company for the benefit of the public street of Fifth Avenue and for its various other lots in the said Paden Valley Plan, and has at all times prior to 1946 been so used. Each of said Boston street and Fifth Avenue has been a public street of the Town since 1917.”

Other allegations are to the effect that the ditch, though small at its beginning, increased in size until at Lot 3 it is from two to four feet in depth and from four to six feet in width; that the owner and former owner of Lot 3 had full notice of the existence and use of the ditch by the town for more than ten years prior to the purchase of Lot 3 by defendant; and that defendant purchased the lot knowing that it was being sold to her at a reduced price because of the existence of the ditch. It may be noted that the land company does not question the right of the town to the continued use of the ditch.

*149Allegations of the pleading demurred to are, of course, ■taken as true. Also, every reasonable inference arising .from such allegations supporting the pleading must be considered as if properly pleaded. According to the holding of the majority, necessary requisites for acquiring an ■easement by prescription are: (1) Continuous and uninterrupted use and enjoyment thereof for the prescriptive period; (2) identity of the thing or right enjoyed; (3) claim of right adverse to the owner of the land; (4) ■acquiescence in the use by the owner; and (5) such use must not have been permissive.

I do not understand that the majority contends the allegations of the bill are insufficient as to the use of the •ditch by the town being continuous and uninterrupted'for the prescriptive period. I think there no basis for any such ■contention, in the face of the clear and unequivocal allegations that such use was “continuously and uninterruptedly * * *”; that the town from the time of its incorporation in 1917 “maintained such ditch to the present time; by cleaning it out from time to time by draining surface waters” from various lots, streets, avenues and alleys '“through the same”; that the town maintained the ditch for a period of more than thirty years as “a public drainage ditch”; that for over thirty years the ditch “has been continuously and uninterruptedly used, and has openly and apparently been maintained, as a part of the general system for the drainage of the májority of such lots and ■said Fifth Avenue * *

Neither is there any question as to the identity of the easement or right claimed or enjoyed by the town, namely, the right to protect and preserve its streets and alleys from damage by drainage through the ditch, as it has done for more than thirty years. It should not be overlooked “that the ditch was not constructed by the land company for its own use, but “for the benefit of the public * * *.” True, the land company may have derived benefits from “the ditch through drainage of its own lots. Such benefits, .however, do not destroy the identity of the right claimed *150and used adversely by the town to drain its own streets', through the ditch.

I find no basis for questioning the sufficiency of the-allegations as to the claim of the town being adverse under a claim of right, or that the landowner did not acquiesce in the use under that claim for the full prescriptive period. The bill would, however, be sufficient without any such allegations, since the admitted use by the town, for over ten years, openly, unobjected to and unprotested, creates a presumption that such use was adverse and acquiesced in by the land company. The majority opinion recognizes this principle in these words: “This Court has' frequently decided that the open, continuous and uninterrupted use of a private way by one land owner over the land of another person for a period of ten years or more, with the knowledge of such other person, is presumptive evidence of the claim of right to an easement and of the adverse character of the use, and that the presumption will be deemed to be conclusive, unless it is shown that the use was protested and that the owner of the land so used protested and objected to such use.”' “Open, continuous and notorious use by an owner of land, of a private way over an adjoining tract owned by another person, known, acquiesced in, unobjected to and unpro-tested by the latter, is presumptively adverse to him and' enjoyed under a bona fide claim of right.” Hall v. Backus, 92 W. Va. 155, 114 S. E. 449. To the same effect are Staggers v. Hines, 87 W. Va. 65, 104 S. E. 768; Hawkins v. Conner, 75 W. Va. 220, 83 S. E. 982. In Walton v. Knight, 62 W. Va. 223, 58 S. E. 1025, Points 2 and 3 of the syllabus, the-Court held: “Such use is presumed to be with the knowledge and acquiescence of the owner and to prima facie-give the right; which presumption will-be conclusive, unless accompanied by the protest and objection of the owner under such circumstances as to repel it.” “When there-has been such use of another’s land for the period requisite-to create an easement by prescription, the bona fides of' the claim of right is established.” We do not have to rely upon any presumption or inference, however, for the bill *151clearly alleges that the use was “under claim of right to so maintain it without any restriction, interference or objection from any person during all of said time”; that the town used and maintained the ditch for more than thirty years “as a public drainage ditch”; and that the ditch was, during the prescriptive period, “maintained as a part of the general system for the draining” of the lots and streets.

I can not agree with the statement of the majority that the bill contains no allegation to the effect that the “plaintiff, at any time, assumed complete or partial regulation or control of the ditch, kept it in repair, or made any expenditure of public money to equip or improve it.” I think the following allegations completely refute that position. “Subsequent to its incorporation, the Town thereafter maintained such ditch to the present time, by cleaning it out from time to time * * *”; that for more than ten years it “was continuously, uninterruptedly open, was worked and cleaned at various times during such period by the Town to the defendant’s knowledge, was continuously used to drain surface water, as hereinbefore mentioned, from Fifth Avenue and other properties in the Town, and was patently and apparently necessary for such purpose”; and that the ditch “At all times prior to 1946, * * * has openly and apparently been maintained, as a part of the general system for the drainage for the majority of such lots and of said Fifth Avenue * * While I do not find any allegation in the bill to the effect that other persons used the ditch for drainage purposes, I think that immaterial. What the town did, and what it now claims the right to do, was to use the ditch to drain its own streets and alleys. The use by any other person for some other purpose has not interfered with the exercise of that right by the town and therefore any such use by any other person would not be inconsistent with the use of the ditch by the town. The right asserted by the town was distinct and independent of any right or use asserted by any other person. See McWhorter v. City of Clarksburg, 111 W. Va. 9, 161 S. E. 577.

*152What has been said also demonstrates that the use of the ditch by the town was not permissive, as that term is "used in connection with the acquiring of an easement by prescription. The allegations are clearly to the effect that ■the ditch was constructed and has been maintained for a period of more than forty years “as a public drainage ditch”. That being true, there was something different from a mere permissive use. Thus we find in the bill allegations plainly charging the existence of each necessary requisite for acquiring an easement by prescription. Hence, the allegations of the bill are not “vague, uncertain and indefinite”.

Has there been an implied dedication of the ditch to public use? I think so. Since the existence of the ditch is not mentioned in the deeds or indicated on any recorded map, it is not contended, of course, that there was an express dedication. In Morlang v. City of Parkersburg, 84 W. Va. 509, 100 S. E. 394, 7 A. L. R. 717, the Court, Point 1, syllabus, held: “The law recognizes two classes of dedications of a street to a city, express and implied, the intent to dedicate being essential to both, though in the latter case it may be shown by acts of the owner justifying the public authorities in believing the intention exists, where they act upon such belief, even though the owner may never have actually intended a dedication.” In the opinion, page 515, West Virginia Reports, the Court stated: “That an owner of real estate, under circumstances like this, may dedicate an easement therein to the public without any expression of his. intent in that regard, or without any writing conveying the same, there is no doubt.” In Miller v. City of Bluefield, 87 W. Va. 217, 104 S. E. 547, Point 3, syllabus, the Court held: “If private property is used by the public as a street or alley and recognized by the public authorities, as a public highway, by work done upon it, a dedication thereof is not thereby effected unless the owner of the property acquiesces in such use and recognition, for the statutory period of limitation.” In Dickinson v. Rand, 102 W. Va. 574, 136 S. E. 42, the landowner solicited the county court to open and *153construct a road through his land, which the county-court did. It was held that a public road was thereby-established. In the instant case the acts of the landowner-are more significant. The ditch was constructed and maintained by it until the incorporation of the town for the purpose of protecting and draining the streets theretofore dedicated by it to public use. After the incorporation of' the town the ditch was maintained by the town, with full knowledge of the landowner, for the very same purpose, at the expense of the town, for more than thirty years. The land company recognized the public nature thereof not only by acquiescing in such use by the town but by selling lots along the same and along the former water course, the value of which lots would necessarily depend upon the continued use of the ditch. The town expended funds in the maintenance thereof, under claim of right, thereto, for more than thirty years.

Public use of the ditch for the prescriptive period raised a presumption that the ditch had been dedicated to public use. Under certain circumstances such a presumption will arise where the use is for a shorter period. 26 C. J. S., Dedication, Section 17. In City of Staunton v. Augusta Corporation, 169 Va. 424, 193 S. E. 695, it was held that dedication may be implied from long use by the public.. The case of MacCorkle v. City of Charleston, 105 W. Va. 395, 142 S. E. 841, relied upon by the majority, has no application to the facts of the instant case. There property owners partitioned certain lands, and, on- a map recorded, designated “an alley 12 ft. wide”. The-partition deed provided that “Each of said grantees is to have full use and enjoyment of said alleys, so far as the same are-adjacent to their respective lots, and full and free right of ingress and egress through and over said alleys to and from the public, streets”. The -Court held that there was an express dedication to private use, not to public use, and that “The mere use by the public of a private alley in connection with the owners of the alley does not show a dedication thereof to public use, or vest any right in the public to the way.” Point 2 syllabus.

*154As I understand, the majority concedes that if the ditch is a natural water course, within the legal meaning of that term, or partakes of the nature thereof, the defendant would have no right to obstruct the flow of water through the same. The majority opinion simply dismisses the question of whether the so called- ditch is a natural or an artificial water course with the statement that “the ditch is obviously a man made, artificial water course, * * *.” It is not so clear to me that the so called ditch is either “man made” or “artificial”. It had, of course, its origin in the action of man. The natural flow of water through the same for a period of over forty years may have not only changed its nature, size and appearance but changed its existence from what was originally a mere ditch to a natural water course, depending upon circumstances. Prior to the construction of the ditch the waters now drained by it from the area of the streets and alleys of the town flowed in almost the opposite direction from that in which the waters now flow through the ditch. For the purpose of better draining these streets and alleys, and no doubt for the purpose of increasing the saleability of its lots, the land company constructed the ditch changing the direction of the flow of the waters. For over forty years the land company, or its successors, has sold its lots in conformity with the existence and use of the ditch, being lots along the streets drained by the ditch, as well as lots along the old water course. Property has been improved and the town has been built in accordance with the change. The use has been open and apparent to everyone who sold, purchased or improved property in the vicinity of the ditch. For over thirty years the town, at its own expense, has cleaned out, worked and maintained the ditch for the protection of its streets and for the benefit of its residents and property owners.

I can not see that the mere definition of a natural water course, as stated in the majority opinion, can be of much assistance, for the so called ditch, whether an artificial or a natural water course, “consists of a bed, banks and water, and in which water usually flows in a certain direc*155tion and by a regular channel with banks or sides.” The manner of the creation of the water course does not control its classification. It is not unusual for owners of land, acting alone or jointly, to change the channel of a natural water course through their lands. The change may straighten the course of a stream, reclaim valuable land or better drain certain areas. In such circumstances I do not presume that it would be contended that the new channel, though man made, would not be the natural course for the flow of the water. It would be an artificial change in the water course, but a water course nevertheless.

All authorities seem to agree that a landowner may change the natural course of a stream flowing through his land. Of course this may not be done to the injury of another. 56 Am. Jur., Waters, Section 14. In 56 Am. Jur., Waters, Section 15, we find this statement: “Where a landowner makes an artificial change in a watercourse, the view has been taken in some cases that other persons whose interests are affected by such change may acquire a right to insist on the continuance of the artificial condition, so as to preclude a restoration of the stream to its original channel or condition. Thus, it has been declared that if a landowner makes a change in the course of the stream which to all appearances is permanent, and holds out to the world the representation that such condition is permanent, he will be bound by his acts; and after the other persons have acquired rights by changing their positions on the faith of such representations, he will not be permitted to deny that they were true, or claim that the stream is not flowing in its true channel. * * See Sanderlin v. Baxter, 76 Va. 299, 444 Am Rep. 165; Schumacher v. Brand, 72 Wash. 543, 130 Pac. 1145; Brown v. Honeyfield, 139 Iowa 414, 116 N. W. 731; Walters v. Hill, 149 N. Y. S. 545; Kallenberg v. Long, 39 Cal. App. 731, 179 Pac. 730.

In 27 R. C. L., Waters, Section 9, we find this statement: “It has often been decided, both in England and America, that watercourses made by the hand of man may have *156been created under such conditions that, so far as the rules of law and the rights of the. public or of individuals are concerned, they are to be treated as if they were of natural origin; the principle is analgous to that under which other rights are acquired in real property by prescription or adverse use.” In Ribordy v. Murray, 177 Ill. 134, 52 N. E. 325, the Court, in dealing with the question whether a ditch constitutes a water course, held that: “A fixed course over which surface water from adjoining land is uniformly discharged at a definite point, is a ‘water course’, within the rule prohibiting one from filling up a water course so as to impede the flow from the adjoining land, though the course has no well defined banks or beds.” In Schwartz v. Nie, 29 Ind. App. 329, 64 N. E. 619, the Court held: “That a ditch has been constructed over and along a natural water course, so that its waters are confined in the artificial channel, does not change its character as a natural water course.” In Pippen v. Carpenter, 208 Ala. 1, 93 So. 878, the Court held: “A small stream well sunk and permanent held a water course giving rise to riparian rights though it had at one time been ditched.” In Lumley v. Village of Hamburg, 170 N. Y. S. 462, the Court held: “Neighborhood drainage ditches, opened by common consent and used for more than forty years, became water courses as fully as if they were not of artificial origin, and riparian owners have the same right and duties as those on natural streams.” See Hull v. Harker, 130 Iowa 190, 106 N. W. 629; Falcon v. Boyer, 157 Iowa 745, 142 N. W. 427; Rait v. Furrow, 74 Kan. 101, 85 P. 934; Railroad Company v. Binkley, 1 Tenn. Chancery App. Reports 531. Even a swale may be a natural water course. Thompson v. Andrews, 39 S. D. 477, 165 N. W. 9; Parizek v. Hinek, 144 Iowa 563, 123 N. W. 180; Lambert v. Alcorn, 144 Ill. 313, 33 N. E. 53. These cases and many more hold that landowners adjoining an artificial water course may have the same right and be charged with the same duties as if the water course had a natural origin. No case with facts comparable to the facts in the instant case has been found which holds that such a ditch should not be considered as a natural water course.

*157Under the holding of the majority, surface waters reaching the so called ditch, and thereby forming a water course, whether natural or artificial, must now, in legal contemplation at least, reverse their direction and find the original course abandoned over forty years ago, and flow through that course to its mouth, notwithstanding such original course may now lead through improved streets, yards, basements and parlors, thus destroying properties of those who have relied upon the continuous use of the ditch for more than forty years. This is equity in reverse.

It may be true that the allegations of the pleading could have been stated in language more definite. They could, of - course, have been stated in different language. The question for the Court, however, is whether the language used, together with reasonable inferences arising therefrom, informs as to each necessary element of the right claimed. I would not forget that we are commanded not to “regard any defect or imperfection” in a pleading “unless there be omitted something so essential to the action or defense that judgment, according to law and the very right of the case, can not be given.” Code, 56-4-37.

Being of the views indicated, I respectfully dissent.-

I am authorized to say that Judge Lovins joins in this, dissent.