Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-05-29


ST: 81 much of i sensat iona1 and
misleading character has been said
and published about the decision Of the
Court Of Appeals in the street case OF
e. Ralston against the town OF Wes-
ton, that statement of the facts
seems proper.
Early In the present century man
by the name of Flesher set apart site
for a town on his property on the West
Fork river and laid out certain streets
which were designated on plat made
by him and to which he gave certain
names, among these being Main and
Water streets. This town site and
streets he dedicated to public use, and
then sold lots bounded by these streets.
He sold the same lot which is now
owned by Ralston, but limited it by
saying it ran from Main street $50 feet
to Water street. Ralston or his pre-
decessors in title gradually extended
their fences over this line until 1t had
enclosed 1917 feet of Water street, not
withstanding his deed expressly called
for only $50 feet He had no right to
this, but claimed it by possession
against the people of the town. The
town, in 1879, by James Wofindin,
mayor, Joseph A. Watson, William
Mcbride, Jacob Schmitt and John Shea,
councilmen, by order of the council,
ordered Ralston and others encroaoh-
ing upon this street to move off the
street. Later, in 1886, W. W. Brannon,
mayor, and C. H. Hale, James B. Fin
ster, M. j. Case and Frank c. Gaylord,
councikmen, upon application OF j. H.
Bare, A. j. Wood and others, passed
a similar order requiring Ralston and
Others to move off the street, and still
later C. NJ Gaylord, mayor, took the
same action.
At the time of the institution of this
suit by Ralston he and a single other
lot owner still encrOached upon the
street for a distance of block, the
others having moved in to the proper
line without objection or protest.
Lately Ralston raised this cOntro-
versy by asking the council to grant
him the right to obstruct the street
permanently with a brick building,
which was to extend over this 1872 feet
of the public street, and thus forever
take it from the people The council
refused and ordered him to give it up.
He then got an injunction against the
use of this ground as street.
He claimed this ground against the
people by adverse possession.
The Court of Appeals held that he
held under deeds dedicating it to
public use and his possession was not
adverse to the town, and also if it had
been adverse no time would bar the
right of the people to 1t. The opinion
prepared by Judge Dent as the unani-
nous decision of the court, is an able
treatment of the subject and is unan-
swerable, for it POUNDS the decision
upon the sovereign rights Of the people
When read it will Convince any fair
minded and reasonable man that it is
right and has for its basis the right of
the people. 1t is supported by de-
oisions of 81 States, by an opinion of
the United States Supreme Court and
by number OF decisions of the Fed
eral Appellate Circuit Courts. Only
four States hold the contrary doctrine.
The decision of the West Virginia
Court of Appeals in Taylor VS.. the
Commonwealth, 20 Graf. Rep. 780, is a
fair sample of all these decisions. 1t
was there held: ANY encroachment
upon, or obstruction OF, public high
way or street, is public nuisance
which no length of time will legalize
or render lawful, and the fact that
such entertainments or distractions
have been maintained and continued
for long time, it matters not how
long, does not operate as bar to the
right of the public to have. the nuisance
abated or the encroachments or OBJ
structions removed, nor to give per-
son the right to continue or keep such
obstruction of Entertainments in the
highway or street. This case has
been followed by four later cases in
Virginia
The doctrine is right. Why should
the people lose their highways by the
wrongful possession Of a private in
dividual and the carelessness and neg
lect of public officers?
1t is said this decision is a reversal
of former decision. So it is. But
Ohio, Virginia, New Hampshire, Mis-
sissippi Iowa, South Carolina, Texas,
Illinois, Missouri, New York and
Maryland have changed their former
holdings E. A. Brannon, town attor-
ney, was instructed by the council
to ask the Court of Appeals to recon-
slider its former decision. The court
did so and changed its former decision
because THAT decision was bad law
as it was against the ancient law that
no time would legalize a public nuis
ance in highway, and adopted the
true rule, and thus defended the pub
lie right to a highway. This was a
much needed reform in the interest of
the people.
The council has not, as has been
stated in sensational reports sent from
Weston to newspapers, made any or
der to remove any building or struc-
lures of Importance. Its order applies
| only to removal of fences and back
buildings of little value. TRUTH.
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