
    *Talbott v. Richmond & Danville R. R. Co.
    March Term, 1879,
    Richmond.
    1. C and G owning lots in Richmond each bounded east by Seventeenth street, and separated by what was at one time the bed of Shockoe creek, but from which the water of the creek had been diverted, enter into a deed by which they fix the boundaries of their lots respectively, and they covenant and agree that there shall be between their lots a street thirty feet wide extending from Seventeenth street westwardly to the eastern boundary of their lots, and that said street shall be forever kept open as a highway and common for the use of the persons who may be the owners of the lots or land bounded on either side of said street. The street thus provided for did not extend west to any street or alley — Held:
    1. Municipal Corporation — Dedication of Streets. — looking to the whole deed and the surrounding circumstances, there was not a dedication of the street to the public generally, but only to the owners of the lots or parts of the lots spoken oi in the deed; and it is not, therefore, a street over which the city authorities have control, and can authorize a railroad company to lay its track along it.
    This was an action on the case in the circuit court of the city of Richmond, brought by Charles Talbott against the Richmond! and Danville Railroad Company, to recover damages for injury done to certain real property of the plaintiff by a railroad track laid by the company in a street or alley in the city. The question on which the case turned is whether this street or alley was a public street or alley, over which the city of Richmond had authority under its charter, and could authorize the railroad company to lay down a track along it. This question depended upon the construction to be given to the provisions of a deed bearing date June 16th, 1838, entered *into between John G. Gamble, who owned the ground on one side of the street or alley, and George M. Carrington, who owned, or represented the parties who owned, the ground on the other side of said street.
    After the evidence had been introduced the defendant moved the court for two instructions ; which the court refused to give; but gave another. These instructions are as follows :
    First instruction asked for by defendant.
    If the jury believe, from the evidence, that the railroad track mentioned in the declaration was constructed with the assent of the common council of the city of Richmond, then they must find for the defendant.
    Second instruction asked for by defendant.
    If the jury believe, from the evidence, that the plaintiff’s claim of title to the use of the alley is founded upon the deed of - and possession thereunder, of the property conveyed in said deed, they are instructed that this deed constituted a dedication to the use of the city of Richmond, and that the defendants are not liable in damages for constructing and using their railroad track through said alley with the assent of the proper authorities of said city; which _ the court declined to give, but gave to the jury the following instruction, which is in the words and figures following, to-wit:
    Instruction given by the court.
    The jury are instructed, that under the deeds exhibited in evidence by the plaintiff, in tracing his title to the property in the declaration mentioned, taken in connection with ' the deed also exhibited by the plaintiff, of date of’ *June 16th, 1838, between George M. Carrington, administrator de bonis non, &c., and John G. Gamble, the rights of the plaintiff in and to the alley through which the railroad track of the defendants passes, were limited to the use of the same as a highway in common with the owners of lots on the other side of the alley, and subject to the control of the municipal authorities of the city of Richmond, whenever they should elect to exercise control over the same as a public highway or street. And the defendants, having shown that they became by purchase from Solomon A. Myers, the owner of a lot on the other side of said alley, and that they were authorized by the common council of the city of Richmond to construct a railroad track through the said alley, if the jury shall believe, from the evidence, that the defendants did construct their railroad track through the said alley, under the supervision of the authorities of said city, and in accordance with the conditions upon which they were authorized by the said common council to construct the same, and with reasonable care and caution to avoid injury to the plaintiff in the obstruction of the right of ingress and egress to his property, the plaintiff has no right to recover any damages in this action, and the jury should find for the defendants; to which instruction and the opinion of the court granting the same, the plaintiff, by counsel, excepted, and prayed that his bill of exceptions may be signed and sealed and allowed by the court, which is accordingly done.
    There was a verdict and judgment for the defendant, and Talbott applied to this court for a writ of error; which was allowed. The facts are stated by Judge Burks in his opinion.
    Steger & Pleasants, and Guy & Gilliam, for the appellant.
    H. H. Marshall and F. Smith, for the ap-pellees.
   *BURKS, J.,

delivered the opinion of the court.

The assignments of error in this case are based exclusively on the instruction to the jury on the trial in the court below. The foundation of the instruction rests on the assumption that the alley on which the defendant laid its track was a highway, one of the streets of the city of Richmond, subject to the municipal authorities of said city, and that the defendant was duly licensed by said authorities to construct its road over and through the said alley. It is not claimed that there was any implied dedication of this alley to the public use, deducible from acts in pais, parol declarations, user, and the like. If there was any dedication at all, it was an express dedication by the deed of the 16th of June, 1838, between Carrington and Gamble, the former acting for himself and also in behalf of the devisees of Richard Adams, deceased, their representatives and assigns, under whom the plaintiff claims title.

The court did not err, as the learned counsel for the plaintiff in error seem to suppose, in not referring the question of dedication to the decision of the jury. It was the province of the court to determine that question, as it depended upon the construction of the deed. The true enquiry for this court is, whether there is any error in the construction adopted by the circuit court.

Intent is the vital principle of dedication. In a case where acts and declarations are relied upon to show such intent, to be effectual, they must be unmistakable- in their purpose and decisive in their character; and in every case it must be unequivocally and satisfactorily proved. Harris’ case, 20 Graft. 833; Holdane v. The Trustees of the Village of Cold Spring, 21 New York R. 474, 477; Washburn on Easements, marg. pp. 133, 134; 2 Dillon on Mun. Corp. § 499, and notes. And this would seem to be the right guide to judicial interpretation *in such cases; for we know that the individual owners of property are not apt to transfer it to the community, or subject it to the public servitude, without compensation, and such donation is not to be readily inferred.

To ascertain the intent of the parties is said to be the fudamental rule in the construction of agreements; (Canal Co. v. Hill, 15 Wall. U. S. R. 94) ; and in such construction courts look to the language employed, the subject matter and the surrounding circumstances. _ They are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are entitled to place themselves in the same situation which the parties who made the contract occupied, so as to view the circumstances , as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described. Nash v. Towne, 5 Wall. U. S. R. 689, 699. See also Maryland v. Railroad Co., 22 Wall. U. S. R. 105; Moran v. Prather, 23 Id. 492, 501.

It appears by the recitals in the deed, which is the subject of construction, that at the time it was executed, the dividing line between Adams’ lot, known in the plan of the city as lot No. 339, now the property of the plaintiff, and the Gamble lot, which lay south of it, designated in said plan as lot 323, was the ancient course and channel of Shockoe creek, which had been changed by certain artificial works constructed by the said city, so that it was matter of doubt and difficulty to determine where the ancient channel of the creek was. The object of the deed, as indicated by the recitals, was twofold: First, to fix permanently and with certainty the boundary between the two lots, “for the purpose,” as expressed, “of avoiding disputes and litigations respecting boundaries.” Second, to promote “the convenience of all parties interested” *in- the lots. To accomplish this double purpose, the parties agreed as follows: “The parties to this indenture have this day agreed that the boundary between said described land of said Richard Adams, deceased, and said lot number three hundred and twenty-three (323), shall be a street thirty feet wide, extending from 17th street westwardly to the eastern boundary of lot number three hundred and thirty-nine (339), which street shall be parallel to D street, and distant therefrom one hundred feet; and it is agreed that said street shall be forever kept open as a highway for the benefit of the lands and lots on both sides thereof.”

The deed, after conveying to Gamble, on behalf of the devisees of Richard Adams, all the right, title and interest which, the said Richard Adams, at the time of his death, had in and to all and every part and portion of the land and lot of ground lying south of said thirty-foot street, and to the said devi-sees, on behalf of Gamble, all the right, title, and interest which said Gamble has in and to all and every part of said land, lying on the south side of D street, between seventeenth street on the east, and lot No. 339 on the west and north of the said thirty-foot street, concludes with the following covenant, substantially the same as the agreement before recited: “And the said parties do covenant and stipulate with each other that said thirty-foot street shall forever remain open as a highway and common for the use of the persons who may be the owners of the lots or land bounded on either side of said street.”

It is upon the language of this covenant and the preceding one before recited, that the learned counsel for the defendant in error _ chiefly rely as establishing the alleged dedication to the public use of the strip of land concerning which the controversy in this case has arisen. The land is designated as a “street” — “a *thirty-foot street”— and the agreement is, “that said street shall forever be kept open as a highway.” This language, taken alone, might be a sufficient indication of a purpose to dedicate to the public use. The term “highway” is a generic name for all kinds of public ways — ways common to all the people of the state haying occasion to pass over them. Holt, Chief Justice, Queen v. Saintiff, 6 Mod. R. 255, 258. To constitute a highway, it must be one over which all the people of the state have a common and equal right to travel, and which they have a common, or at least a general, interest to keep unobstructed. People v. Jackson, 7 Mich. R. 432, 446.

But seeking the intent of the parties as manifested by the instrument, we are not, under the established rules of construction, to be tied down to the terms and expressions referred to. Especially are we not at liberty arbitrarily to break up the intimate companionship of words and lop one member of a sentence from another. The maxim is, nos-citur a sociis. We must consider all the language employed — -the instrument as a whole and every part of it. The general intention to be collected from the whole context, and every part of the written instrument, is always to- be preferred to the particular expression. _ “Every deed,” observes Hobart, Chief Justice, “ought to be construed according to the intention of the parties, and the intent ought to be adjudged of the several parts of a deed as a general issue out of the evidence, and ought to be picked out of every part, and not out of one word only:” and such a construction should be put upon particular words as will best answer and effectuate the apparent general intention. Ex an-tecedentibus et consequentibus optima fit inter-pretatio. Addison on Contracts (2d Amer. ed.), top p. 845, marg. 846.

*The agreement of the parties is not merely that there “shall be a street thirty feet wide” and “that said street shall be forever kept open as a highway,” but the purpose for which it is to be' kept open is declared. It is called a highway, but it is expressly for “the benefit of the lands and lots on both sides thereof.” While called a highway, it is not for the public accommodation, not for the public use, but, in express terms, “for the use of the persons and parties who may be the owners of the lots or land bounded on either side of the said street.” The common meaning of the term “highway” is explained and qualified by the language used in connection with it. If, indeed, it was used by the parties to the deed in the sense of a public way, then the attempted dedication i was to a limited portion of the public, and such a partial dedication is simply void and will not operate in law as a dedication to the whole public. There may be a dedication of a way to the public for a limited use, but there cannot be a dedication to a limited part of the public. Poole v. Huskinson, 11 Meeson & Welsby, 837. But I do not regard any dedication, partial or otherwise, as intended. I think the language of the deed fairly construed manifests a purpose merely to adjust and fix with certainty the boundary between the two lots, and establish a common right of way to be annexed as a permanent easement to the lots, and not for the accommodation of the public.

This construction appears the more reasonable, when we consider the situation of the property in dispute. It is not a thorough-far' , but what is denominated a cul-de-sac. It is an alley thirty feet in width, and only two hundred feet in length, with an entrance from Seventeenth street on the eastern side and no outlet on the western. It affords no accommodation to any persons except the owners of the lots bounded by it. To them it is of great convenience. It is of no advantage to the public, and could not be unless extended westwardly so as to connect *with some public street in that direction. It is most unreasonable, therefore, to suppose that any dedication of a way to the public could have been intended. People v. Jackson, 7 Mich. R. 432, 448.

The conduct, too, of the parties, which may be looked to in a case like this, throws much light on the subject. Railroad Company v. Trimble, 10 Wall. U. S. R. 367.

In 1846, the plaintiff, in conjunction with his brother, became the purchaser of one-half of the Adams lot, upon which they immediately erected a foundry. They found the thirty-foot alley, from its condition, wholly useless, and they filled it up and improved it at their own expense, so as to make ‘it a fit way of ingress and egress to and from their foundry. They purchased the residue of the lot in .1853, and from the date of their purchases they had the continued use and enjoyment of the lot and the alley in the rear without any objection from any quarter, and without molestation until the defendant laid the railroad track, which was the occasion of the present suit. Jn 1846, when the first purchase was made, the plaintiff and his brother, who were co-purchasers, put up a high gate, closing the entrance to the alley on Seventeenth street, without objection on the part of the owners af the Gamble lot or any other person, and this gate remained until removed some time in the winter of 1865-6. In the mean time and hitherto, so far as appears, the municipal authorities of the city of Richmond have never in any way recognized the alley as a public street, or exercised any control over it in the way of grading, paving, lighting, police regulations, or user of any sort.

As it thus appears that no dedication to the public was intended, there could be, of course, no acceptance, without which a dedication is incomplete, and the common council of Richmond, if it attempted to do so, could not confer a right where it had none.

*It follows, from what has been said, that the instruction given to the jury is, in my opinion, erroneous, and that the judgment of the circuit court should be reversed, the verdict of the jury set aside, and the cause remanded for a new trial.

It appears that the defendant has purchased from one Myers a portion of the property bounded by the alley in question, and is therefore a tenant in common with the plaintiff of the way over it. As such tenant, it is entitled to use said alley as a way in common with its co-tenants, but without prejudice to their rights. Whether it has the right to lay a railroad track at all on said alley and use it as such, is a question not presented by the instruction given in this case, and I express no opinion upon it.

Judgment reversed. 
      Written Contracts — Construction by Courts. — The principal case is cited in Scoville v. Terry, 84 Va. 549, as .authority for the rule that in construing written contracts courts must look to the language employed, the subject matter and the surrounding circumstances. See also Bank v. McVeigh, 32 Gratt. 531 and note; French v. Williams, 82 Va. 467; Collier v. Express Co., 32 Gratt. 718.
      Same — Same—Parol Evidence. — That, in order to arrive at a proper construction of written contracts oral evidence to show the circumstance under which it was executed may be admitted, see Richardson v. Planters Bank, 94 Va. 137, citing the principal case and Crawford v. Jarrett, 2 Leigh 630; Tuley v. Barton, 79 Va.. 387; French v. Williams, 82 Va. 467. See also Knick v. Knick, 75 Va. 21; Senger v. Senger, 81 Va. 704.
      Municipal Corporations — Dedication of Streets. — As to what constitutes a° valid dedication of a street to the public, see Burtin v. Danville, 93 Va. 204, citing the principal case and Richmond v. Stokes, 31 Gratt. 713; Kelly’s Case, 8 Gratt. 632.
      Railroads in Streets — Risthts of Lot-Owiiei'S to Compensation. — Concerning the question as to whether owners of adjoining lots are entitled to compensation from a railroad company legally occupying a street, see Spencer v. R. R. Co., 23 W. Va. 423, citing the principal case and Mayo v. Murchie, 3 Munf. 358; Kanawha Co. v. Anderson, 12 Leigh 278; Skeen v. Lynch, 1 Rob. 186; Bolling v. Petersburg, 3 Rand. 563; Warwick v. Mayo, 15 Graft. 528; Norfolk v. Chamberlaine, 29 Gratt. 534; Wheeling v.* Campbell, 12 W. Va. 36.
     