I respectfully dissent from the reasoning contained in the majority opinion.
The Court's decision evidently turns upon the premise that the alley in question is a public way. In establishing this premise, the majority of the Court took the view that the case of City of Point Pleasant v. Caldwell, 87 W. Va. 277,104 S.E. 610, is not in point with the instant case. But the opinion simply says that the two cases are distinguishable upon factual grounds. No effort is made to direct attention to the grounds of distinction. Personally, I have been unable to find any satisfactory ground upon which the cases may be distinguished. Here the alley in question, shown upon the Settle map, was neither used by the public nor accepted by public authority. In the Point Pleasant case the offer to dedicate, as here, is shown by the plat. There, as in the instant case, the acceptance of the offer to dedicate did not extend to the right-of-way sought to be declared public. It occurs to me that if the view entertained by the Court in the Point Pleasant case, as well as in more recent cases of Town of Glendale v.Glendale Improvement Co., 103 W. Va. 91, 137 S.E. 353, andState Road Commission v. Chesapeake Ohio Railway Co., 115 W. Va. 647,117 S.E. 530, represents sound law, for a right-of-way to become public under a dedication there must be an acceptance, either *Page 327 formal or implied, of the offer to dedicate. The conclusion inevitably follows that the alley here is not a public way.
I have not overlooked the fact that earlier West Virginia cases and a number of cases in other jurisdictions have held, at least in effect, that an unequivocal offer to dedicate may make dedication complete without acceptance. For a clear statement see note by Charles C. Wise, Jr., of the Kanawha County Bar, 41 W. Va. Law Quarterly, 293. Whether the former holdings of this Court on the question are correct is not for me to say here, because the overruling of decisions of this Court is not properly the subject-matter of a dissenting opinion.
I joined in the decision in the recent case of Dietz v.Johnson, 121 W. Va. 711, 6 S.E.2d 231, because, as I viewed it, the Court in that case simply held that, where parties buy according to a common plat, they, in the absence of laches, estoppel, or other barring circumstance, "become entitled to such use of the streets and alleys, appearing on such plat, or provided for in subsequent allotment of the remainder of the tract, as is necessary to the complete enjoyment thereof, independently of whether or not there has been a dedication of such streets and alleys to the public and an acceptance thereof by a public authority." See Pt. 1, Syl.
It seems to me that the reason courts of equity entertain the rights which we have under consideration is not properly based upon the existence of vested property right, for such cases do not involve ownership in the right-of-way shown upon a plat with reference to which the lot owner purchased his lot, and such purchase does not give rise to a covenant running with the land. Strictly speaking, it seems to me that the rights in question should be viewed as lying within the field of adjective and not substantive law. Though a lot owner enjoys no covenant running with the land and has no vested rights in the ways shown upon the plat, he is entitled, in the absence of barring circumstances, to relief on the ground that it is inequitable for the original owner, or the other lot *Page 328 owners, to narrow such enjoyment which one lot owner, from the markings and recitals appearing on the plat, was reasonably led to believe would follow a purchase according to the plat. To state the matter another way: where such lot owner is inequitably wronged, a court of equity, because its door is open to prevent the doing of inequity and there is no adequate remedy at law, will entertain a suit to protect the lot owner on the basis of an equitable covenant, mutually binding the original owner and all lot owners.
For these reasons, I find myself unable to concur in the majority opinion.