Vaughan v. Lewis
Vaughan v. Lewis
Opinion of the Court
delivered the opinion of the court.
The record of this case shows that when the city of Roanoke was incorporated a tract of land belonging to Mrs. Jane Lewis was included within the corporate limits, which she
Major Lewis, finding that the property-owners adjacent to the northern boundary of this land would not open the street, advertised lot No. 12 for sale; whereupon Mrs. Vaughan enjoined the sale.
At the hearing this injunction was dissolved, and from that decree this appeal has been taken.
The right to an injunction is rested upon two grounds, namely :
1st. That there has been a dedication of Lewis street to the public; and
2d. That if it be not a street, yet that the representations of Andrew Lewfis, the agent of Mrs. Jane Lewis, and the terms of the deed, were such as to give Mrs. Vaughan a right to use said lot as a street, and that they have such an easement in the lot.
But neither of these positions seem to be tenable.
We have looked in vain through this record for any evidence of dedication. We have not even been able to find that lot No. 12 was even opened to the public as a street; or that the public have used for the period of five years, which is one of the requirements of the charter of Roanoke to constitute a statutory dedication; nor is there the faintest trace that the city ever accepted it by the proper proceedings of the council or by working on it. A witness, one B. D. Card-well, does say that Major Lewis stated to him that Lewis street would run through the Borer land ; and another witness states, in substance, that Major Lewis gave him to understand that it would be carried across the town. Neither of these witnesses state, however, that there were any ploughed furrows nprth of John street, and the last-mentioned witness says, in so many words, “ I cannot give any reason why it was
Again, we see nothing in the language of the deed which amounts to an implied covenant that there was a street existing, or that Mrs. Vaughan was to have the easement of a street. The words “ on northeast corner of John and Lewis streets,” are mere words of description, and could not possibly have misled the appellant or her agent. Here the map or plat was made a part of the deed, and this gave her the means of seeing exactly what she was getting.
In Noovan v. Braly, 67 U. S., p. 499, the court says where a map or plat is thus referred to, the effect is the same as if it were copied in the deed. 2 Devlin on Deeds, § 1020 et seq. ; see Parke, B., in Llewellyn v. Earl of Jersey, 11 M. and W. 180; s. c., 12 L. J. Exch. 243.
Undoubtedly, describing lands in a deed as bounded on a street of a certain description raises a covenant that the street shall be of that description, and that the purchaser shall have the use thereof. Loving v. Otis, 7 Gray 563 ; Parker v. Smith, 17 Mass. 413 ; Moale v. Mayor of Baltimore, 5 Maryland 314. But in this ease there has been no such description.
The decree of the corporation court of Roanoke is right, and must be affirmed.
Decree affirmed.
Reference
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- Dedication of Street—Description in deed—Parol evidence.—The owner of a sub-division conveyed Lot 13 therein, describing it as being on the northeast corner of J and L streets. L street extended from south to J street, and had not been extended further. The space that L street would have occupied, if extended, was designated on a map of the sub-division as “ Lot 12.” The owner’s agent had told the vendee that L street would be extended if other parties beyond would continue the extension. The owner continued to pay taxes on Lot 12 until sold. L street was never so extended nor accepted by the city council, nor was it used five years, as is required by the-city charter in order to constitute a dedication. Held : Insufficient to constitute a dedication of the street.