The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-08-14
pragramme from an army OF reporters,
and time will have to develop that mat
A DECISION DEFENDED.

A Weston Correspondents Comments
on 'The Bars" Criticism OF Judge
Dents Decision in Case Of Ralston
VI. Weston.
To the Editor Of the Intelllgeneer
sIR-The August number Of the Bar
condemns Judge Dents opinion in the
case Of Ralston VS.. the town of Weston.
Reason, time and law will defend that
opinion. It defends the public high
ways against unlawful appropriations
for private use. For centuries the law
has been that any obstruction on a
highway is a public nuisance. and that
no time will justify 1t. every day being
fresh indlctable ofEense. This is law
yet everywhere. The question Is gov
erned by this law. No length Of pos
session gives tide to an Individual
against the public road. The Virginia
court Of appeals, in 20 Grafton, holds
"that any occupation OF a street or part
OF It by owner Of an adjoining lot, how
ever long. cannot give such occupant
right to hold It or bar the right Of the
public TO the use Of the street TO It's
full extent and width"
Thirty out Of thirty-dve Of the states
that have decided the matter hold like
wise, especially the late cases. Several
have changed their decisions to agree
with this position. Writers on roads
say II Is the true rule. One case In
West Virginia fully discusses the point
and held the other way. Several cases
follow It. but did not discuss It. That
case went on the idea that as the old
rule that no time runs against the state
had been done away with by q statute
saying limitations run against the
state; therefore adverse possession OF
part OF n street would give title to 1t,
but the point cannot be based on that
ground. The rule that such possession
Is public nuisance, which no time can
Vindlcate, is the true principle solving
the matter That statute says that linz
itations apply to the state. So 1t would
as to It's wild land or Its personal prop
erty, but not the roads OF the people.
The state does not own them.
The title to the ground is In the adj
Joining owner. not the state, but 1t Is
subject to the right OF the people for
road purposes, but TINT right is In that
great interest, the people" not the
state, not even the county or town,
which only control the roads for the
people. holding them only In trust Tor
the public, as judge Dent senslbly puts
IL. That statute does not mention coun.
~ or town as barred.
why destroy the public right by q
mere strained construction when the
act does not say so? With what reason
can the old rule that no one can get
title by public nuisance be overthrown
by mere doubtful construction Of stat
ute to the great public injury for the
benefit OF an Individual?
A county court. nor town council,
could not sell or transfer a rond or
street to an Individual. and cannot let
him have 1t by neglect But II is ar
gued that our court has wrongfully
changed Its position; other courts have
done so In this very matter. A court
is not bound to forever continue In the
error Of It's predecessors, when 1t Is
clearly error
The article in the Bar admits vir-
tunlly that the former decision was
error. The true rule is that when a de-
clsion is plainly unsound and Is hurtful
to public welfare. and Its continuance
viii do more public harm than It's re-
versal, it ought to be set right. When
change affects title 1t should be rarely
adopted, but this change Affects no title,
none acquired by purchase, by deed or
by Will, but a wrongful claim, based
on public nuisance.
VIII the Bar, whose editorial Is tull
Of abuse and red with the blood OF the
Judges OF the supreme court, publish
this in Justice to the other View
PRO BONO PUBLICo.
Weston, W. Va, Aug. 10.