
    CHARLESTON.
    A. G. & R. R. Flanagan v. C. C. Brown et als.
    
    (No. 6409)
    Submitted April 23, 1929.
    Decided April 30, 1929.
    
      A. D. 'Daly, for appellants.
    
      James H. Miller, filed brief for appellees, but died prior to tbe bearing of tbe case.
   "Woods, President:

A. G. and R. R. Flanagan instituted this suit to restrain tbe defendants from exercising any dominion over a certain plot of ground, designated as “Central Park”, on tbe plat filed with tbe deed under which plaintiffs bold, and also to require tbe bouses built thereon to be removed, and that tbe deeds under which defendants claim be cancelled as clouds upon tbe title to the property of tbe plaintiffs and others enti-tied to tbe use of said park. Plaintiffs appeal from an order entered on tbe bearing denying tbe relief sought and dismissing tbeir bill.

Sometime in 1908, thirty individuals were interested in a scheme to take over and make a summer resort out of what was then known as tbe Barger’s Spring property, in Summers county, and incorporated in 1904 as tbe Greenbrier Springs Company. Bach stockholder paid in $300.00 to be used in purchasing and improving tbe property, with tbe understanding that each was to receive three shares of stock in tbe corporation and a lot to be drawn from tbe subdivided portions consisting of some sixty-eight or more lots. It was also tbe understanding that lots drawn could be exchanged for more desirable ones. In 1905, tbe several lots so drawn, or those taken on exchange, were transferred, by one deed, to tbe several stockholders as of that date. A plat, showing the location of the lots, streets, parks, etc., was referred to in the deed and made a part thereof, and was recorded along with the deed. In the description of A. G. Flanagan’s lot the “Central Park” shown on, the plat was mentioned as contiguous thereto, and the plat likewise showed the same. A dance pavilion was erected on the park site, and remained there for some fifteen years. A deed of trust was executed on behalf of the corporation, in 1911, to secure a certain loan, and the property was later sold thereunder. Sometime thereafter the pavilion was moved further down the hill and across the road from “'Central Park”. C. C. Brown, one of the defendants, in 1925, bought a part of the property, including “Central Park”, from the purchasers under the trust deed. He, in turn, made sale of the same to the other defendants, who built thereon. Flanagan testified that he had no notice of any claim of ownership over the park property until he saw the houses thereon.

The plaintiffs, while stockholders in the Greenbrier Springs Company, were in fact purchasers of the lots so transferred to them by the corporation. They took the same in reference to the plat filed as any other purchaser. It is well settled that where a purchaser of a town lot has purchased with reference to a plat and dedication, without reservation, he has acquired an express private easement in all tbe streets, alleys and parks, and may enjoin tbe closing or obstruction thereof by tbe owner, without waiting for'municipal acceptance of tbe dedication. All such streets and alleys are presumed to be appurtenant to bis lot, and, together with tbe parks, were considered in tbe purchase of bis lot as a part of tbe value. Rudolph v. Glendale Improvement Company, 103 W. Va. 81. Not only did tbe corporation file tbe plat, but it made reference in tbe deed to tbe tract contiguous to A. G. Flanagan as “Central Park” in describing tbe latter's property. There is evidence of user by tbe public. Tbe pavilion erected thereon was used for dancing, 'Sunday School, and tbe like.

Tbe property rights of A. G. Flanagan in tbe park could not have been transferred by tbe deed of trust of 1911, or tbe deed made after tbe sale thereunder, even though tbe corporation bad attempted so to do, unless it could be shown that tbe parties interested consented thereto. 18 C. J. 61; 9 A. & E. Ency. 57, et seq. This deed of trust, under which defendants claim, reserved not only tbe lots and conveyances made to tbe individual stockholders, but tbe rights, privileges, franchises, passways, etc., as set forth in tbe former deeds, contract and conveyances. So a' waiver could not possibly be construed against Flanagan on account of bis being a stockholder in tbe enterprise. Tbe case of Briers v. Alderson, 101 W. Va. 662, relied on by tbe appellees, has no bearing on tbe situation thus presented. Tbe plat, under Rudolph v. Glendale Improvement Company, supra, was a part of tbe conveyance to Flanagan.

While it is contended that Flanagan ought to have known of tbe building on tbe “Central Park” adjoining him, there is no positive proof that be did. He denies any knowledge thereof until it bad been erected. Under tbe case made, tbe decree of tbe lower court must be reversed, tbe bill re-instated, and a decree entered here granting tbe relief prayed for.

Reversed; decree entered.  