Rose v. Fisher , 130 W. Va. 53 ( 1947 )

I concur in the opinion prepared by Judge Kenna solely on the ground that the plot of ground owned by plaintiff, and on which he bases his suit, was not included in and as part of the subdivision, the use of the streets and alleys of which he seeks to have decreed to him herein. I do not concur in point one of the syllabus. In my opinion, when the owner of land subdivides the same into lots, streets and alleys, and dedicates such streets and alleys to public use, such dedication becomes effective, not only as to those who purchase lots, but to those who wish to visit or transact business with lot owners, as well. This, of course, amounts to a public use. Where there has been such dedication and lots sold in reliance thereon, it cannot be revoked to the prejudice of a lot owner, but, at any time before acceptance of such dedication by a public authority, the subdivision may be abandoned by the original land owner, or his successor in title, and the land covered thereby reclaimed by the owner, free of such dedication of streets and alleys, so long as such abandonment does not interfere with the full use and enjoyment of lots purchased by others and located in such subdivison. This was the holding inDeitz v. Johnson, 121 W. Va. 711, 6 S.E.2d 231. That case, as understood by me at the time it was decided, and as I understand it now, was not a departure from the so-called "unity rule" except, perhaps, that it does permit the abandonment of a subdivision where it can be done without prejudice to persons who have purchased lots therein, a point not clearly established by prior decisions. I have been speaking of instances where there has been no acceptance of a dedication by a public authority. Of course, where there is such acceptance, the dedication becomes irrevocable unless through some authorized legal proceeding, a street or alley is vacated and closed. Generally speaking, the result of an acceptance of a dedication of a street or alley to public use, by a public authority, is to protect them against private encroachments, however long practiced, and place on that authority the burden of maintaining them as public streets and ways of travel. It does not, in my opinion, have any effect on the right of the public to use the streets and alleys of a subdivision.