The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-08-26
RALSTON vs. WESTON.

.'Stnre Declsls" on the Recent De-
tense by Pro Bono PubIlco : Tho
Decision Destroys Vested Rights.
Five Decisions by the Highest Court.
An Interesting Response Which
Concerns municipalities and Pro-
pcrty Holders in Cities and Towns.
To the Editor OF the Intelligeneer.
sIR:-In your Issue OF the 18th, the
opinion Of Judge Dent in Ralston vs..
Town OF Weston is defended by Pro
Bono Publlco. Truly 1t needs defense.
The error OF the position which the cor
respondent undertakes to support, is in
yolved In the claim that the change of
opinion Of our supreme court does not
AFFECT title. The writer says;
when a change afrects title 1t should
be rarely adopted, but this change at
fects no title, none acquired by pur-
chase, deed or by will, but by wrong,
full claim based on q public nuisance.
The manifest error. lies In failure to
appreciate the fact, that adverse pos
session will create as perfect title as
can De acquired by grant or other spe-
Judge Snyder in Hall VS.. Webb, 2lst
West Virginia, 3lS, when the period
prescribed by statute has once run so
as to cut on the remedy one might have
had for the recovery Of property In the
possession Of another, the title TO the
property, Irrespective Of the original
right, is regarded In law, as vested In
the possessoF, who Is entitled to the
same protection in respect to It which
the owner Is entitled to In other cases.
In this opinion Judges Johnson ana
Green ooncurred. II is supported oy
an array Of pointed and pertinent au-
thorities.
In Adkin VS.. SpurloclS. decided April
/, 1893, 3 s. 2. R., l2l, in which Judge
Dent rendered the opinion, syllabus
reads as follows: 1.-THE bar Of the stat
ute OF limitations not only defeats the
REMEDY, but dIVests the title and con-
fers It upon the adverse holder"
This Is the sOundest kind OF doctrine.
II has for twenty-five years been held
by the highest court IN the state to
have direct application. and to anord
ample protection TO every encroaching
occuparit upon any road, street or alley,
and upon the faith OF his title, settled
and established by repeated adJudica-
lions of our supreme court, In many In
stances, costly structures and valuable
improvements have been made, which
must now be destroyed by the ENFORCE
ment OF the new decision, whereby five
former ones which had hxed and. es-
tablished n rule OF property, are re-
versed.
1t is said that the reversal Of former
decisions only affects wrongful claims,
based on public nuisance. But II
should be remembered that our court
has. by a number Of decisions, express
iyJheld that such encroachment Is NOT
a public nuisance, and that such
claim, whether wrongful or rightul'
will create a perfect title in the adverse
occupant.
oyerruled In the five cases before the
Rniston case Ak and establish a rule OF
property, and that the decision in the
Ralston case reverseS this rule ana de-
stroys vested rights. In the face OF nVe
decisions directly to the contrary, It Is
dlficult to conceive how It can be said
that every encroaeher upon a street or
alley during the last % years has been
maintaining a nuisance. He Is a Grim
inal according to this last decision. He
could be prosecuted for maintaining
nuisance, in the face OF Ave decisions
declaring him to have a perfect title:
A crime Is an act committed or omit
ted in violation Of q public law COM
mandlng or forblddlng It. Tested by
the Ralston case, crime Is an act
which may be made so by the reversal
OF the supreme court. According 10 the
contention Of Pro Bono Publlco, an act
NAV not be a crime to-day, but may be
Tomorrow, II, between the two days,
supreme court reverBes Its opinion on
the subject. ,-.,,..
cited Does not Pro Bono Publlco
know enough to know that Virginia and
West Virginia have opposite statutes
and opposite policies on this subject
VIrEinla's doctrine Ia that the statute
shall not run and West Vtrgtnta's that
II shall run In such cases.
II Is denied that thirty OF thlrty:hve
states that have decided the matter hold
like our court has recently held. Many
OF the states that have so held have
statutes like Virgintn, which, as Just
stnted, Is exactly the opposite OF ours
II IA not correct that only one case In
West Virginia discusses the point. II
was discussed in other decisions. II
Il be true, however, that tho one case
was 40 long followed without question,
II Is but stronger reason that II should
have stood, and that the alleged evils
resulting from II never existed. Some
writer's on roads and streets say that
the rule asserted In the Ralston case Is
Inc true one, but these same writer's an.
nounce and recognize the doctrine or
equitable estoppel In favor OF encronch-
Ing occupants. who have expended mon
ey. But this sound doctrine Is also re-
pudlnted In the Ralston case. Our
statute Of limitations has no exception
in favor OF municipal corporations ana
where there Ia none In the statute, the
court Gun make none.
why would our statute apply to the
wild lands and personal property OF the
state, hut rot to the Tonda Of the peo-
ple? The people own the Wild lands
ana the personal property as well as the
ronds. As matter Of law It Is sufi-
Client to say that our court Of last re-
sort has repeatedly held that no such
distinction exists, and in 30 holding was
In harmony with concurrent authority