before them when the contract was drawn, showing the location of the proposed road substantially at the place it appears to have been constructed by him. The evidence also shows that, if built upon the location demanded by the defendant, not only would the road have been constructed practically where the old one was, but would have, as the old one did, crossed over a high bluff on the Barnes land in such a way as to have been of little use either to Barnes or Bent for access to their respective tracts of land.

The defendant makes the point that the contract of March 26, 1903, calls for a triangular piece of land on the west end of the Barnes tract, seven rods long and five rods wide where it adjoins said road to be constructed, the same containing about 17 square rods, and that the piece of land which Bent has inclosed is some 16 rods long and some 71⁄2 rods wide, along the base of which he has constructed the road. Bent's reply to this evidence is that in his letter to Barnes of December 27, 1902, he called Barnes' attention to the fact that he and those under whom he claimed had had in possession and under fence for about 15 years about half of the wedge-shaped piece of land and the road through it, and that he wanted to make the new road along the east side of his Shoemaker land, and that when he gave to Barnes the square rods he was guessing at the area, and was measuring not from the extreme point of the angle described by Barnes' deed, but from a point some seven or eight rods therefrom, where he and those under whom he claimed had had a portion of the Barnes' tract inclosed. To have built the new road along the eastern boundary of his Shoemaker land, Bent was obliged to complete it substantially where he did locate the new road. The fact is, he did locate the road where it is, and where it was used without objection or exception by the defendant Vincenzo Trimboli, and, we think, the evidence overwhelmingly shows that the new road is located where the contract provided it should be.

Whether the road is of the substantial character provided for by the contract, there is conflict of evidence. The point is made that it is not as wide as the law requires county roads to be, the testimony showing that in some places it is 92 feet in width and at other points 10 and 12 feet; that it is not thrown up and graded as would be required for a good, substantial public road. Upon the contrary, the evidence shows that Bent built substantial culverts where the road crosses the stream, and graded it, and that it is such a road as the demands of the public travel there required, and was probably contemplated by the contract; that it passes through the Bent lands quite a long distance, and goes through the Barnes tract, and that it furnished the only possible means of access to the Barnes land from the Seneca road, and upon which Trimboli has built his

house, and was, at the time of the institution of this suit, making constant use thereof. There was no question but that the road was contracted for, and that the parties and their successors in title are entitled to a road according to the contract; that each of the parties and the public in general are entitled to use the road free from obstruction or interference by either of them or by any other person; that their rights arise out of the contract. It is not a right of way acquired by pre-emption or by long user by the public; but it has been the subject of a contract between the parties and their predecessors in title. We do not undertake to decide, as between the plaintiff and Barnes, the right to a specific execution of the contract to convey the triangular tract to Bent. We could not do so, for Barnes is not before the court; but, as between Bent and Trimboli, and between Bent and all other persons using or entitled to use the road, the plaintiff is entitled by contract to have it remain free and unobstructed as a public road.

Objection is made here, that we should not consider the evidence of the plat and the letter of Bent to Barnes of December 27, 1902, to vary the terms of the written contract respecting the place of location of the new road. The evidence of Bent-not contradicted by Barnes, a witness for the defendantswas that these papers were before the parties and were discussed by them at the time of the contract; and we think they are admissible in aid of the ambiguity of the contract as to the actual location of the proposed road-not to contradict the contract, but to be considered in connection with the contract, to render certain that which is to some extent uncertain, and as a fact and circumstance surrounding them when the contract was made. A well-settled rule of construction based on common sense, says Judge Green in Heatherly v. Bank, 31 W. Va. 77, 5 S. E. 754, is that when the language of a written contract is susceptible of more than one interpretation-that is to say, is on its face ambiguous-the courts will look at the surrounding circumstances existing when the contract was made, at the situation of the parties and the subject-matter of the contract, and will call in the aid of acts done by the parties under it as affording a clue to the intention of the parties. To the same effect are the cases of Scraggs v. Hill, 37 W. Va. 706, 714, 17 S. E. 185; Crislip v. Cain, 19 W. Va. 438, Syl. 13; Uhl v. Railroad Co., 51 W. Va. 107, 41 S. E. 340.

The circuit court by final decree of May 14, 1904, was of the opinion that the injunction theretofore awarded ought to be wholly dissolved, and it was so dissolved, and the bill dismissed. In support of the decree of the court below, appellees contend, on the authority of such cases as Hast v. Railroad Co., 52 W. Va. 396, 44 S. E. 155, Boyd v. Woolwine, 40 W. Va. 282, 21 S. E. 1020, Dicken v. Liverpool, 41 W. Va. 511, 23 S. E. 582,

Talbott v. King, 32 W. Va. 6, 9 S. E. 48, and other cases, that land dedicated to public use by the landowner does not become a public highway unless by a valid dedication binding upon him and beyond his power to revoke, or without uninterrupted use for the requisite length of time to conclude him as against the public in the use thereof. There is no fault with the legal propositions covered by these cases, but they are inapplicable. They apply only to the particular kind of cases there involved. It certainly cannot be contended that a public road cannot be established by deed between parties in interest. It is true, according to these authorities and others, that a road opened by individual contract between landowners cannot impose upon the county authorities the burden of a county road, without acceptance thereof by lawful authority, or by long use and occupation thereof, and by actual work done thereon by the public agents. Hast v. Railroad Co., 52 W. Va. 396, 399, 44 S. E. 155. In this case Judge Brannon says: "It is true we find much law to show that by common law a dedication may be made by an owner of property, which, if accepted by the public by long user, makes the way a public highway for all purposes, even to charge the public with its maintenance and with liability for its defects"-citing Elliott on Roads and Streets, § 154, and 2 Dill. Munic. Corp. § 642. But Judge Brannon says: "In this state our decisions do not allow the public use of a way to operate as an acceptance of a dedication so as to bind the county"-citing Talbott v. King, supra, and other cases. In the same connection, however, Judge Brannon says: "If an owner of land lays it out into streets, lots and alleys, and sells lots with reference to such streets and alleys by plat or otherwise, it is a dedication of such streets and alleys irrevocable by him, and makes them public as to all lot owners, and consequently as to the general public. He is estopped to deny them that character"-citing Riddle v. Charlestown, 43 W. Va. 796, 28 S. E. 831, and Skeen v. Lynch, 1 Rob. (Va.) 186. That right which individuals and the public may acquire by long user and dedication may be also acquired by grant, express or implied.

The point made in argument that the contract implied that the plaintiff should have the new road adopted as a county road, and that the road in question is not of the required width to become a county road, is equally untenable. A road or way may become a public road by grant, by long user, and the like, whether it be built of the legal width or not. The contract in this case did not call for a road of any particular width. By the terms of the contract, it was to be a public road substantially built. A breach of the covenant in the contract to build a substantial road may possibly be cause of action between the parties to the contract; but this would not furnish excuse to either of the parties for obstructing the present way.

The point is made also that, conceding the public character of the road, equity has no jurisdiction to grant relief to the plaintiff. This is a correct proposition, unless the ob struction works special and peculiar injury to him. It is so held in Wees v. Coal & Iron Co., 54 W. Va. 421, 40 S. E. 166, citing Talbott v. King, supra. But the converse proposition is equally true that where the obstruction of the road does work special and peculiar injury to him equity will interfere. What is the fact here? The plaintiff has no other convenient means of access to his Woolwine land than by this road. It renders his property less valuable if the road is obstructed by the defendants. He bought the right of way and gave a consideration for it. Under such circumstances, equity may enjoin obstructions of this character. Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. 632; Wees v. Coal & Iron Co., supra; Keystone Bridge Co. v. Summers, 13 W. Va. 476. If we affirm that this contract provided for a private and not a public way, equity will then also grant the relief. Boyd v. Woolwine, 40 W. Va. 282, 21 S. E. 1020.

We therefore hold that the court below erred in dissolving the injunction and dismissing the bill; and its decree of May 14, 1904, is set aside, reversed, and annulled. And this court, proceeding to enter such decree as the circuit court should have entered, doth adjudge, order, and decree that the defendant Vincenzo Trimboli and the other defendants, their servants and agents, and all other persons be, and they are, hereby perpetually enjoined, inhibited, and restrained from erecting or causing to be erected in or on said road, so opened and constructed by plaintiff, any obstruction therein, and from in any manner interfering with him or the public in general in the legitimate use of and travel over the same; and it is further ordered that the said defendants do at once remove any and all obstructions placed by them or either of them in said roadway. And it is further adjudged, ordered, and decreed that the appellee Vincenzo Trimboli do pay to the appellant his costs by him about his prosecution of this appeal expended, as well as his costs in the circuit court.

MCLEAN v. STATE.

(61 W. Va. 537)

(Supreme Court of Appeals of West Virginia. March 12, 1907.)

TAXATION-ASSESSMENT REAL ESTATE - REVIEW BY COURTS COURT OF APPEALS-Ju

BISDICTION.

There is no jurisdiction in this court for a writ of error taken by the state from the decision of a circuit court made on appeal under section 10, c. 15, p. 136, Acts 1904 [Code 1906, § 692], in a proceeding by a landowner to correct a reassessment of the value of real estate under said section.

(Syllabus by the Court.)

Error from Circuit Court, Jackson County. James McLean appealed from a refusal of the county court to release an assessment. From an order of the circuit court directing the assessment to be stricken from the taxbook, the state brings error. Dismissed.

The Attorney General and C. W. May, for the State. Wm. O. Parsons, for defendant in error.

BRANNON, J. James McLean filed a petition in the county court of Jackson county. complaining that the commissioner for reassessment of lands acting under the reassessment act (chapter 15, p. 132, Acts 1904 [Code 1906, §§ 683-696]), had charged to him oil and gas reservations in 1,727 acres of land at $1 per acre, and averring such reservations possessed no actual value and that such charge was erroneous, and praying that such assessment be released and stricken from the landbook. Upon hearing the county court refused to release such assessment. On appeal to the circuit court taken by McLean the circuit court held that the assessment of such oil and gas reservations was erroneous, for the reason that the same were not shown by the evidence to have any true and actual value for taxation, and ordered the charge to be stricken from the taxbook. The state sued out a writ of error from this court.

Has this court jurisdiction of this writ of error? It is a fixed rule that unless a statute, pursuant to the Constitution, grants a writ of error in the case, none can be entertained in this court. State v. Shumate, 48 W. Va. 360, 37 S. E. 618; Carskadon v. Board (decided March, 1907) 56 S. E. 834. Chapter 15, p. 136, Acts 1904, § 10 [Code 1906, § 692], gives the county court power to hear pe titions for correction of error made by the reassessment commissioner in his valuation of land, and gives an appeal to the circuit court to both state and landowner; but it does not give an appeal or writ of error to this court from the decision of the circuit court on such appeal. The statute for correction of annual assessment (Acts 1905, p. 347, c. 35, §. 129 [Code 1906, § 815]), if it applies, gives the landowner an appeal from the county court to the circuit court, but not to the state. A writ of error is not given to this court. do not see any jurisdiction under those statutes for a writ of error. Mackin v. County Court, 38 W. Va. 338, 342, 347, 18 S. E. 632. I cannot see any place for this writ of error under the general chapter relating to writs of error. Chapter 135, 88 1-30, Code 1899 [Code 1906, §§ 4038-4067].

I

I do not discuss the question whether this matter is judicial, so as to warrant a writ of error, if given by statute, under principles found in the Mackin Case, cited, and In re Town of Union Mines, 39 W. Va. 179, 19 S. E. 398, and other cases. There is no writ of error given by statute in this matter.

We dismiss the writ of error for want of Jurisdiction.

(61 W. Va. 543)

CECIL ▼. KARNES et al. (Supreme Court of Appeals of West Virginia. March 12, 1907.)

1. EQUITY-CROSS-BILL.

A cross-bill is treated as a mere auxiliary suit, or as a dependency upon the original suit, and is in general to be considered as a defense to the original bill, or a proceeding necessary to the determination of some matter already in litigation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, §§ 446-449.]

2. SAME-MULTIFARIOUSNESS.

Where several matters joined in the bill against one defendant are so entirely distinct and independent of each other that the defendant will be compelled to unite in his answer and defense different matters wholly unconnected with each other, the bill will be treated as multifarious.

[Ed. Note. For cases in point, see Cent. Dig. vol. 19, Equity, §§ 341-367.]

3. SAME DEMURRER.

A demurrer to a bill in equity, on the ground of multifariousness, goes to the whole bill, and, if sustained, the bill will be dismissed. [Ed. Note. For cases in point, see Cent. Dig. vol. 19, Equity, §§ 516, 517.] (Syllabus by the Court.)

Appeal from Circuit Court, Mercer County. Bill by J. G. Cecil against R. F. Karnes and others. Decree for defendants, and plaintiff appeals. Reversed, and bill dismissed.

C. W. Smith, for appellant. Hale & Pendleton, for appellees.

SANDERS, P. The plaintiff, J. G. Cecil, filed his bill in the circuit court of Mercer county, alleging that in 1896 he purchased from the defendant R. F. Karnes a house and lot containing about one acre of land, situated in the town of Princeton, and exhibited with his bill a contract in writing evidencing such purchase; that Karnes afterwards instituted a suit for the purpose of enforcing specifically the contract of sale, which resulted in a decree being rendered in favor of Karnes against Cecil for the balance of the purchase money on account of such purchase and providing for a sale of the property to satisfy the decree; that certain payments were made upon the decree until the same was reduced to about the sum of $140, and that this sum, under the direction of Karnes, had been tendered to his attorney. It is also alleged in the bill that some time after the purchase already mentioned the plaintiff purchased from the defendant Karnes another lot of land, containing about one half of an acre, adjoining the acre lot, for the sum of $50, for which he paid the purchase price, and of which he was put in possession, and upon which he made valuable improvements; that this last purchase was by virtue of a parol contract, and that he had not obtained a deed for the lot so purchased. The plaintiff further alleged that after having made sundry payments on the decree aforesaid, Karnes, in fraud of his rights, had sold said lots of land to the defendant C. A. Brown, who afterwards sold a part thereof to the defendant

R. B. Belcher, and averred that both Brown and Belcher were purchasers with full notice that he was the owner of said lots of land, and asked that the contracts between him and Karnes be enforced, that the sales to Brown and Belcher be set aside, and for general relief. The defendants Karnes and Brown demurred to the plaintiff's bill, and also answered the same. The defendant Belcher did not appear, and as to him the bill was taken for confessed. Depositions were taken, and upon a hearing the court decreed in favor of the defendants as to the one acre lot, but the adjudication of the rights of the parties in respect to the half acre lot was left open for determination at a future date. From this decree, Cecil has appealed.

The appellees contend that the demurrer to the bill should have been sustained. There is no mention of the demurrer in the final decree, nor is there any thing in the record anywhere to show that the same was passed upon. The principles of the cause having been adjudicated, the rule is that where nothing else appears the demurrer will be treated as having been overruled. Dimmack v. Wheeling Traction Co., 58 W. Va. 226, 52 S. E. 101; Craig v. Craig, 54 W. Va. 183, 46 S. E. 371; Fluharty v. Mills, 49 W. Va. 446, 38 S. E. 521; Hinchman v. Ballard, 7 W. Va. 152.

The ground assigned in support of the demurrer is that the matters set up in the bill are not proper for an independent suit; that it was the duty of Cecil to litigate them in the suit brought by Karnes for the specific enforcement of the contract. On behalf of the appellant it is insisted in argument that the bill is good, in this: That the matter of the purchase of the one-half acre lot, being an independent transaction, cannot be set up in the suit for specific performance; that while Cecil in that suit could have had the deed to Brown set aside as to the acre lot, it would have required an independent suit for the purpose of setting same aside as to the onehalf acre lot; that the pleading contains the same allegations and the same parties that would be required in a cross-bill; and that it should not be dismissed, but should be allowed to be filed as an original bill in the nature of a cross-bill. Is this pleading good as a cross-bill? We do not think it is. While it is true that it sets up matters which are necessary to the complete determination of matters already in litigation, yet it goes further and brings into the controversy new parties, with distinct interests, and an independent contract, on which it is admitted that a suit for specific performance could be maintained. "A cross-bill is usually brought, elther to obtain a necessary discovery of facts in aid of the defense to the original bill, or to obtain relief to all parties touching the matters of the original bill." W. Va., O. & L. Co. v. Vinal, 14 W. Va. 638; Hansford v. Coal Co., 22 W. Va. 70.

Not being good as a cross-bill, we are to consider whether or not the pleading can be maintained as an original bill, and at the out

Is

set we are met with the principle that a bill cannot embody separate and distinct objects, interests, and parties. If it does so, it is open to objection for multifariousness. this bill subject to this criticism? The sale of the one acre lot was by written agreement, for the specific performance of which Karnes had already instituted suit, and in that suit a decree for the sale of the property had been pronounced; while the sale of the one-half acre lot is claimed to have been by parol, and to this latter alleged agreement Karnes interposed the defense of the statute of frauds. Furthermore, the bill alleged a sale of both lots to a third party, Brown, and a sale by Brown of the one-half acre lot to Belcher. Here we have a bill which cannot be maintained. Belcher is brought as a defendant upon a record with a large portion of which and with the case-made by which he has no connection whatever, and the defense interposed by Karnes to the alleged contract in respect to the one-half acre lot would, if the bill were allowed to stand, make two records to be litigated in the same suit. There is not such common liability in the defendants as would justify uniting these two causes of action, both of which are equally the subject of equity jurisdiction. "The bill must not be multifarious-that is, two distinct grounds of equitable relief, even between the same parties, are not to be joined in the same bill." Guano Co. v. Heatherly, 38 W. Va. 410, 18 S. E. 611; Day v. Bldg. & Loan Ass'n, 53 W. Va. 550, 44 S. E. 779.

From the conclusion reached it follows that the demurrer should have been sustained, and, the bill failing, all subsequent proceed. ings go with it. There cannot be a decree without proper pleadings to support it. "No relief can be granted in equity without proper pleadings.” Martin v. Kester, 46 W. Va. 438, 33 S. E. 238; Turner v. Stewart, 51 W. Va. 493, 41 S. E. 924; Handlan v. Handlan, 37 W. Va. 486, 16 S. E. 597. The rule of practice in this state has always been, when a demurrer to a bill is sustained on the ground of multifariousness, that the bill is dismissed. There is not a single instance in which an amendment has been allowed, and we are, therefore, without authority to allow an amendment in this instance, even if the bill could be amended, which is not free from doubt. The reason for denying the right to amend is best stated in Boyd v. Hoyt, 5 Paige (N. Y.) 79: "The form and effect of a demurrer to a bill in chancery for multifariousness is substantially the same as a demurrer to a declaration at law for a misjoinder of actions, or of different causes of action, which cannot properly be litigated in the same suit. The demurrer, in either case, goes to the whole bill, or declaration"-citing Gibbs v. Claggett, 2 Gill & J. (Md.) 29.

Therefore, the bill not being amendable, it is unnecessary to remand the case for further proceedings; but the decree of the circuit court is reversed, the demurrer sustained, and the bill dismissed.

(61 W. Va. 523)

RICHARDSON v. EBERT. (Supreme Court of Appeals of West Virginia. March 12, 1907.)

1. EQUITY-PLEADING EXHIBITS-VARIANCE.

A bill in equity states a judgment as of one date; the copy of the judgment exhibited with the bill gives the judgment another. The mistake in the bill is immaterial. The court should go by the date given in such copy. [Ed. Note. For cases in point, see Cent. Dig. vol. 19, Equity, § 385.]

2. SAME-CORRECTION.

Documents made exhibits in a bill or other chancery pleading are parts of such pleading, and a court is not bound to accept as true or correct what such pleading states the documents to be, or their effect, but may go by such documents themselves, and treat as corrected mistakes in such pleadings by such documents.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, §§ 383-385.]

(Syllabus by the Court)

Appeal from Circuit Court, Wood County. Bill by William Richardson against Charles B. Ebert. Decree for plaintiff, and defendant appeals. Affirmed.

McCluer & McCluer, for appellant. W. N. Miller, for appellee.

BRANNON, J. William Richardson brought a chancery suit in Wood county against Charles B. Ebert to enforce against Ebert's land the lien of a judgment. The defendant demurred to the bill, but his demurrer was overruled, and a decree made for the sale of the land to pay the judgment, and Ebert appeals.

One objection made to the decree is that no execution was returned "no property found" before the Institution of the suit, as required by Code 1899, c. 139, § 7 [Ann. Code 1906, § 4147]. This argument is predicated on the fact that the bill avers a judgment recovered 23d September, 1905, with interest from that date, and that execution issued on it 4th December, 1905, when a copy of the execution made an exhibit of the bill shows an execution dated 6th December, 1905, and was on a judgment dating 13th October, 1905, inferable only from the fact that it calls for interest from that date; hence the execution alleged to have issued was not on the same judgment on which the bill rested, and thus there was no execution shown to have issued. The bill exhibits a copy of a judgment dating 18th October, 1905, instead of 29th September, 1905, describing the judgment as for the same amounts of principal and costs as stated in the bill, calling for interest, not from the same date as the bill, but the same date as the execution, 13th October, 1905. Here is discrepancy. How remedied? An exhibit is a part of the bill. The judgment is the best evidence of its date and the date from which nterest runs. We must not, to allow a clerical error or mistake in giving wrong dates in the bill, overrule the judgment itself. We must go by it-treat the bill as if it had given those dates given by the judgment. Kester v.

Lyon, 40 W. Va. 161, 20 S. E. 933. The court is not bound to accept as true a date given by a bill in passing on bill and exhibits, but may go by the exhibit (Lockhead v. Berkeley Springs Co., 40 W. Va. 553, 21 S. E. 1031), especially where the exhibit is the higher evidence. Doing this, we have a judgment dated 18th October, 1905, for $800 principal and $71.90 costs, the sums stated in both bill and execution, the principal bearing interest from 13th October, 1905, as stated in judgment and execution. The execution does not date the judgment. Thus correcting the errors in the bill, and making it one based on the judgment described truly in the copy, we find the execution to be on that judgment. The court allowed the bill to be amended so as to allege the date of execution 6th in place of 4th December, 1905, thus harmonizing bill with execution.

Another objection is that indorsements on the execution show that the sheriff received the execution on 4th December and returned it the same day, which would antedate the execution. This could not be. If it so appeared to us, we would say that it was an error of the sheriff in giving date, and the fact of the return, "no property found," would stand as made after the date of the execution. But in fact we know nothing of the date 4th December, as the record before us gives the date 7th December.

Another objection is that the execution went into the hands of the sheriff and was returned on the same day. If true, the fact would be immaterial, as a sheriff may return before the return day. He may be liable to a creditor for hasty action want of diligent search for property; but it does not nullify the return for such a purpose as is involved in this case. Findley v. Smith, 42 W. Va. 299, 26 S. E. 370. But the fact of receipt and return of the execution on same day is not shown. The first indorsement on the execution is: "Received Dec. 7th 1905, W. H. Carter, S. W. C."; the next: "Returned No property found. W. H. Carter, S. W. C." So far as the indorsement shows, the return may have been on the return day of the execution. There is a signature to each indorsement. They are separate.

Another objection is that the defendant's exception to the report of the commissioner finding that the several parcels of real estate of Ebert would not satisfy the debt in five years by renting was overruled. The bill alleged that they would not. This allegation must be taken for admitted by the demurrer, and by reason of there being no answer denying it.

Code, c. 125, § 36 [Ann. Code 1906, 3856]. Besides, the evidence before the commissioner proves it fairly, and a report on evidence by a commissioner, confirmed by the court, is not to be reversed unless very plainly wrong.

There is another assignment of error based on the fact that the decree gives the sale commissioner discretion as to which parcels