Ogle v. Mayor of Cumberland

Schmucker J. delivered the opinion of the Court. This case was instituted by the appellant to recover damages from the city of Cumberland for personal injuries sustained by him from falling into a ditch or sewer at the point where it crossed a road, which he contends was a public street of that city. The facts of the case are substantially as follows : Prior to the year 1887 persons and vehicles having occasion to pass in either direction between Creek street, in the city of Cumberland, and the basin of the Chesapeake and Ohio Canal were in the habit of crossing in a nearly direct line over the land of the canal company, lying between the basin and the corner of Creek and Canal streets. Early in 1887 the West Virginia Railroad Company acquired this land from the canal company by condemnation and erected trestles and other structures upon it which prevented its use as a roadway and thus made it necessary to provide a new way of access to the canal basin from the corner of Creek and Canal streets.

In the condemnation proceedings, by which the railroad ⁶¹ company acquired this land, it was agreed in the presence of the jury and set forth in the return of the inquisition that another road, twenty-four feet wide, extending over the condemned land from Creek street, near its intersection with Canal street to the basin should be “kept open for the use of the canal and the public for passing for all purposes for which a public road is commonly used to and between Creek street, and the canal.” This new road crossed the railroad track by passing under the trestle, which supported the track, and just before passing under the trestle the road crossed the ditch or sewer into which the appellant fell when he was injured. The appellant kept a saloon in a house near the basin, which he rented from the canal company. He was injured by falling into the ditch after dark on the evening of February 1st, 1894, as he was going from Creek street along the new road toward his saloon. He sued the city of Cumberland for damages, alleging that this new road was a public street, which it was the duty of the city to keep in repair, but that it had negligently been permitted to be in a dangerous condition, &c., &c.

There never was any grant to the city of the new road as a street,-nor was there ever any formal acceptance by the city of its dedication to public use, but the appellant relies upon the facts about to be mentioned as amounting to an implied acceptance by the city. In January, 1891, the City Council, in response to a petition addressed to it by the appellant, ordered a light to be placed “ at or near the railroad crossing under the trestling of the West Virginia Railroad leading to the towpath,” and appointed a committee to execute the order. This committee finding a light already located within fifty feet of the place where the road crossed under the trestle, advised that this lamp be moved into such a position as would throw its light upon the crossing under the trestle, and the council ordered it to be done, but it had not in fact been done when the accident to the appellant occurred. The ditch into which he fell had for ⁶² many years carried the surface water from Creek and other streets down to the canal basin, and on one or more occasions, prior to the accident, the employees of the city had been seen to clean out the ditch and scrape the surface of the streets which it drained. in November, 1886, the City Council passed an ordinance accepting an offer of the railroad company to locate its freight depot so as to occupy a portion of the east side of the bed of Canal street, at and near its intersection with Creek street,upon condition that the railroad company would give to the city sufficient land on the west side of the street to maintain its original width.

The Court below being of the opinion that none of the transactions appearing in evidence were legally sufficient to show an acceptance by the ' city of Cumberland of the twenty-four foot road on which the accident occurred as a public street granted the prayer of the defendant taking the case from the jury, and the plaintiff appealed. There can be no question that the facts