Brooks v. City of Birmingham
| Decision Date | 02 August 1946 |
| Docket Number | 6 Div. 403. |
| Citation | 248 Ala. 227,27 So.2d 249 |
| Parties | BROOKS et al. v. CITY OF BIRMINGHAM. |
| Court | Alabama Supreme Court |
Theodore J. Lamar, of Bessemer, for appellants.
Geo P. Bondurant, of Birmingham, for appellee.
The bill in this case was filed by appellants, Dovie Smith Brooks et al., as trustees of Greenwood Cemetery Company, a corporation, against the City of Birmingham.
The purpose of the bill was to have the court declare that a municipal improvement assessment made by the City of Birmingham against certain property of the Cemetery Company was void and that the deed wherein the City became the purchaser at a sale to satisfy the said assessment was likewise void.
Demurrer was sustained to the original bill. Respondent answered the bill as amended. The appeal is from a decree denying relief and dismissing the bill.
The facts as stipulated between the parties are in substance as follows: Greenwood Cemetery Company was incorporated in June 1925, for the following purposes, as expressed in its certificate of incorporation: (1) To purchase or otherwise acquire and own real estate; (2) to construct, lay out, and maintain one or more cemeteries in Jefferson County, Alabama and to use or permit the same to be used for the burial therein of human remains; (3) to buy, sell, rent, lease and sub-lease real estate; (4) to borrow money and execute notes and mortgages to secure said notes whether for money borrowed or other indebtedness; (5) to sell lots and graves in such cemetery, and to do any and all other things necessary or customary in the operation of a cemetery. The amount of the total authorized capital stock was $3,000, all of which was paid in.
In June, 1925, the Greenwood Cemetery Company received a deed to approximately sixteen acres of land, which land was described by metes and bounds, and was conveyed as one tract. The property described in said deed also included a strip of land approximately thirty feet wide, used as a dirt road continuously since a date prior to December 31, 1910. Complainants insist that the Greenwood Cemetery Company has continuously owned as one parcel all the land embraced in the deed, including the road, which they contend is a private road. The said dirt road goes through the cemetery. At one end it intersects Woodlawn Road and at the other end it intersects University Avenue. Woodlawn Road and University Avenue are both public thoroughfares of the City of Birmingham. The respondent claims that said dirt road is a public road by prescription. It appears that since 1910 the City of Birmingham at intervals has worked and maintained the said dirt road and it has been used since that time by the public without any interruption, hindrance or protest on the part of any person or corporation holding title to the abutting lands. There is no evidence to the contrary.
There is no survey of record which makes a division of the entire tract of land which was conveyed to the Greenwood Cemetery Company in 1925 but, for the purpose of clarifying the issues in this case, a map was introduced in evidence, which was prepared by agreement of the parties under the supervision of the City Engineer. This map shows the land purchased in 1925 by the Greenwood Cemetery Company to be divided into three tracts. The map shows that one tract is bounded by lines apparently drawn with a red pencil and is referred to in the testimony as the red tract; another tract is bounded by lines drawn with a blue pencil and is referred to in the evidence as the blue tract; while the third tract is bounded by lines apparently drawn with a yellow pencil and is referred to as the yellow tract. A rough sketch of the pertinent features of the map is hereafter set out, wherein that tract which is referred to in the evidnece as the red tract is designated as Tract No. 1 and will be hereinafter so referred to. That portion of the land referred to as the blue tract is designated as Tract No. 2, and that portion referred to in the testimony as the yellow tract is designated Tract No. 3.
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No bodies have ever been interred on Tracts No. 1 and No. 3, but more than five thousand bodies have been interred upon Tract No. 2. None of the property has ever been used for any purpose other than for burial purposes, all of it having been used and held under the authority covered by the certificate of incorporation. A charge of ten dollars per grave has been made. Of this sum, five dollars has been used to pay for the opening of the grave and the rest of said sum has been used for incidental expenses in maintaining the property. No dividends have been declared nor is it contemplated that dividends or profits will be paid or made from the cemetery.
On December 13, 1927, the City of Birmingham, by and through its City Commission, duly adopted an ordinance which provided for the improvement of Woodlawn Road which, according to the map, abuts that portion of the land described herein as Tract No. 1.
An assessment was levied against Tract No. 1 on the 26th day of March, 1929, in the amount of $900.28. On April 30, 1929, the Greenwood Cemetery Company appealed from the assessment levied against Tract No. 1. Thereafter on the 31st day of December, 1929, the City Commission of the City of Birmingham reduced the amount of the assessment to $750.23, whereupon the Greenwood Cemetery Company, acting by and through its duly authorized agents, withdrew its appeal from the assessment.
Upon default in payment of the assessment after the same had been reduced, the City of Birmingham became the purchaser of said Tract No. 1 at a foreclosure sale of the assessment lien claimed by the City against said property. A deed conveying the said Tract No. 1 to the City of Birmingham, based upon said foreclosure sale, was executed on May 29, 1931, and filed for record on June 8, 1931.
At the time the City of Birmingham made said assessment and sale, there had been no subdivision of the property acquired by the Greenwood Cemetery Company in 1925. There had been no survey setting the land or any part thereof off in lots or blocks by the Greenwood Cemetery Company. The manner in which the City arrived at its description of Tract No. 1, which description was the description contained in the foreclosure deed to the City, was by private survey made by its engineers. Neither the Greenwood Cemetery Company nor any of its duly authorized agents had any knowledge of said survey being made either at the time that it was made or prior to said assessment. At the time of the assessment and sale thereunder, the Greenwood Cemetery Company owned as one tract all of the lands designated herein as Tracts 1, 2 and 3, in that the said Cemetery Company had acquired all of said lands by deed executed in 1925, heretofore referred to.
Complainants now claim that Tract No. 1 is needed by them for burial purposes.
The parties agree that the ordinance providing for the improvement of Woodlawn Road, the assessment against Tract No. 1, the sale thereof, and the deed were all valid in every respect unless said assessment and deed are void for either, or both of the following reasons: (1) That Tract No. 1 was exempt from assessment as cemetery property; (2) the amount of the assessment exceeded the increased value of said Tract No. 1 by reason of the special benefits derived from Woodlawn Road.
It appears that sometime subsequent to the date on which the City of Birmingham secured the deed to Tract No. 1, the Greenwood Cemetery Company went into the hands of a receiver. In July of 1939 a decree of the Circuit Court of Jefferson County was rendered to the effect that the management and control of the cemetery under the laws of the State of Alabama became a charitable trust for the benefit of those that had been interred therein and for others who might receive burial in such cemetery. The complainants, as trustees, were vested with the title to the property and charged with the duty and responsibility to exercise supervision over the lands and cemetery and directed to administer the trust as a charitable trust with authority to dispose of lots, plots of ground for burial purposes to those who desire to buy cemetery lots upon such terms and conditions as are usual in the conduct of such an institution and which might have been exercised by a body corporate in such cases provided.
The aforesaid action of the equity court of Jefferson County came about as the result of a petitioner filed by various colored societies or civic groups through designated parties.
The complainants thereupon took possession of all of the tracts, cleaned up and beautified Tract No. 2, which had been permitted to grow up in weeds and undergrowth. Various societies and individuals at the solicitation of complainants have contributed or donated money to the complainants, as trustees, all of which has been used strictly in and about the beautification of and the care of said Tract No. 2.
When this suit was filed the complainants were in possession of all of the property, including Tracts 1, 2 and 3, but the City of Birmingham was claiming title to Tract 1 by virtue of the foreclosure deed.
Two members of the appraisal committee of the Birmingham Real Estate Board called by complainants testified that in April, 1943, they inspected and appraised the property involved in this suit and concluded that the property had not been enhanced in value as a result of the paving of the Woodlawn Road in front of Tract 1. It appears that this appraisal was based primarily on the conclusion of the said appraisers that the property had been permanently dedicated as a cemetery for negroes prior to 1927 and that such property could not be used for any other purpose.
The decree rendered by the...
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