Town of Carrollton v. Jones

Same Case — On a Re-hearing. Eustis, C. J. The object of the present suit, was the extension of certain streets in the town of Carrollton, through the land of the defendants. The decision of the court was 'against the plaintiffs. A're-hearing was granted, and a further argument has been had. The land through which the projected streets are sought to be extended, has been enclosed and cultivated since the year 1837. Part of the dwelling house is within the line of the streets. No act of use or occupation on the part of the plaintiffs or the public, has been shown in relation to the space now required for streets. It appears, that in a sale of part of the land to a person named Sharp, the streets were laid out on a plan, according to which the sale was made, and that a mortgage was made, according to a similar plan of the land, in favor of the Carrollton bank. The sale was made in 1837, and the mortgage in 1838. Whatever rights Sharp may have of way or servitude on the land designated as streets, he forbears the exercise of them, and contends that the whole property remain in its present condition. The mortgage creditors did not exercise their rights, and we may assume that the debt is paid. Neither was this plan ever submitted to the municipal authority for approval or acquiescence. As the matter stands on the evidence, the plaintiffs are seeking to enforce their claims, not in furtherance of the rights of Sharp, but adversely to him. We think the former judgement is clearly right, and it is accordingly affirmed.