City of Demopolis v. Webb

• Decision Date: 19 June 1889
• Parties: CITY OF DEMOPOLIS v. WEBB ET AL.
• Court: Alabama Supreme Court

6 So. 408

87 Ala. 659

CITY OF DEMOPOLIS v. WEBB ET AL.

Supreme Court of Alabama

June 19, 1889

Appeal from chancery court, Marengo county; THOMAS W. COLEMAN Chancellor.

The city of Demopolis filed a bill in equity to restrain the defendant John C. Webb from maintaining a fence across a street in that city, alleging the same to be an obstruction amounting to a public nuisance. The bill also sought to restrain Webb and his co-defendants from collecting wharfage at a steam-boat landing in the city, the same being alleged to be an obstruction to the free use of the landing by the public. Defendants interposed various demurrers: That the bill was wanting in equity, the complainant having a complete and adequate remedy at law; that the street alleged to be obstructed had never been in fact properly dedicated as a highway; that the bill failed to show on its face that the defendant Webb did not have the right to collect wharfage the lower landing or wharf never having been used by the complainant or the public as a wharf; that there was a misjoinder of parties; and that the bill was multifarious. The chancellor sustained so much of the demurrers as asserted a misjoinder of parties, and also so much of the demurrers as rested on the ground that the bill sought to restrain or enjoin Webb from collecting wharfage or storage. All the other grounds of demurrer were overruled. There were cross-assignments of error, both complainant and respondents assigning the decree of the chancellor on the demurrers as error.

G. C Lyon, for complainant.

G. W. Taylor, for defendants.

SOMERVILLE J.

The bill is filed by the city of Demopolis, a municipal corporation, to restrain the continuance of a fence erected by John C. Webb, one of the defendants, across Arch street, a highway in said town, said obstruction being alleged to be a public nuisance, and sought to be abated as such. The bill further seeks to restrain the alleged unlawful collection of wharfage by the said Webb and his co-defendants at a steam-boat landing on the margin of the Tombigby river, which is averred to be an appropriation of a part of said street, and an obstruction to the free use of said landing by the public. The highway in question, called "Arch Street," is alleged to be on the east margin of the river, running north and south, and extending from the low-water mark to the lots on the west side of the street, which are marked out and numbered on the map of the city. Said street is also designated on this map, and is alleged to have been duly dedicated to the public use.

There was a demurrer to the bill, some grounds of which were sustained and others overruled. The case comes before us on cross-appeals by both the complainant and the defendants. We have been greatly enlightened in the investigation of this case by the able arguments of counsel, in which great research is displayed.

It is objected, among other things, that the allegations of the bill fail to show that Arch street was ever laid off or opened as a street, and in use as such prior to the alleged obstruction. In answer to this we may observe that the bill alleges with sufficient certainty a dedication of the street to the public use, and the acceptance of such dedication by the city authorities, and the defendants occupy an attitude which estops them from denying the existence of this street as a municipal highway. The dedication itself was made by the owners of the soil in the clearest and most unmistakable manner, by surveying and mapping out a town under the name of the town of Demopolis. This town they laid off into streets, blocks, and lots, naming the streets and numbering the lots, by marking them on this map or plat. Among these recognized highways was Arch street, the one here in controversy. The lots in said town were all described and sold with reference to this plat, including certain lots occupied by the defendant Webb, adjacent to or fronting on Arch street, upon which a warehouse has been constructed by the proprietors, his co-defendants, from whom said Webb rents the premises. Improvements have been made and a town built up with reference to this plat, and upon the faith of an implied covenant on the part of the dedicators that the highways and streets described shall always remain open for public use. "It may be stated, as a general rule," as observed in a recent leading case, "that where the owner of urban property, who has laid it off into lots, with streets, avenues, and alleys intersecting the same, sells his lots with reference to a plat in which the same is so laid off, or where, there being a city map on which this land is so laid off, he adopts such maps by a reference thereto, his acts will amount to a dedication of the designed streets, avenues, and alleys to the public." Methodist Episcopal Church v. Mayor, etc., 33 N. J. Law, 13. Under all the authorities, and upon every sound principle, this was a dedication of Arch street, as described on the map. City of Dubuque v. Maloney, 9 Iowa, 451; Cincinnati v. White, 6 Pet. 431; Godfrey v. City of Alton, 12 Ill. 29; Gardiner v. Tisdale, 60 Amer. Dec. 407; Ang. & D. Highw. § 149.

The acceptance of the dedication by the public is sufficiently alleged. The act of the general assembly of Alabama, approved December 15, 1821, incorporating the town of Demopolis, provided that "all the tract of land included in the plan of said town be, and is hereby, declared to be the limits of the same in conformity to said plan." Toulmin, Dig. p. 837. This was an adoption of the plan or map as part of the charter, with its streets there marked out and dedicated, and the acceptance of the charter operated ipso facto as an acceptance of such dedication, without further action on the part of the municipal authorities. Requa v. City of Rochester, 45 N.Y. 129. The bill, moreover, alleges the actual use by the public for over 20 years of portions of Arch street near the two steam-boat landings in or adjacent to this street on the river margin.

But, as we have said, the defendants are in no situation to assert the non-existence of Arch street as a dedicated and accepted highway. They claim title to their lots by mesne conveyances, running back to the original dedicators and proprietors,-the same source through which the complainant derives its title to the street in controversy. In these conveyances the lots on which the warehouse property is situated are described with reference to the official map or plat of the town, and stated to be bounded on the north by Arch street and Washington street. This estops the defendants from denying that Arch street is a public highway, having potential existence, whether actually opened or not.

The case of Steam-Engine Co. v. Steam-Ship Co., 12 R.I. 348, is an authority in support of this view. There a riparian owner platted his land into streets, lots, and squares; one of the streets being below high-water mark, and under tide-water at the time of dedication, having been subsequently reclaimed by filling out the uplands. It was closed by the owners of the adjoining lots through the erection of a fence across the street. A bill was sustained to remove this obstruction as a nuisance. To the suggestion of the respondents that the street was never lawfully created, but existed only on paper, because the land over which it ran was overflowed by tide-water, the court answered: "Though it may be true that the way or street had no actual existence when the conveyances under which it is claimed were made, we think it had nevertheless what may be called a potential or prospective existence, which would become actual whenever the place for it should be filled, and incorporated with the upland; and though the conveyances, when executed, may have been ineffectual to create the way or street, because the site of it was flowed by tide-water, yet we think they were binding by way of estoppel on parties and privies, so that, in equity, at least, the said parties and privies could not refuse to allow the way or street as soon as the land designated for it became capable of supporting it." "The ground of the estoppel," said the court, "is that the easements and servitudes indicated by the plat constitute a part of the consideration for which all conveyances referring to the plat are made, and therefore no person, while claiming under the conveyances, can be permitted to repudiate them, or to deny that they exist where they are capable of existing." We fully indorse this view of the law as sustained both by reason and authority. City of Dubuque v. Maloney, 74 Amer. Dec. 358; Godfrey v. City of Alton, 52 Amer. Dec. 476; O'Linda v. Lothrop, 21 Pick. 292.

It follows, we repeat, from this principle, that it is immaterial whether the street in question had been opened and used all its length through or not. The defendants purchased their lots in full recognition of its existence as a public street or municipal highway, liable to be opened and used as such whenever the growing demands of an increased population and commerce might require it. They are estopped now to deny to it this character upon the plainest principles of justice and right.

It is well settled that a fence or other like obstruction erected across a street is a public nuisance, and it may be such although the obstruction is created under an accompanying claim of title to the soil. A right of action at law will lie for its maintenance in favor of any one who may sustain from it a special or particular injury. For such nuisance an indictment will also lie, and any private person aggrieved by it may rightfully abate it by removal. Stetson v Faxon, 31 Amer. Dec. 123, and note, 132; Davis v. Mayor, etc., of New York, 67 Amer. Dec. 186, note, 203; Harrower v. Ritson, 37 Barb, 303; ...