City of Birmingham v. Graham

• Decision Date: 27 June 1918
• Docket Number: 6 Div. 718
• Citation: 79 So. 574,202 Ala. 202
• Parties: CITY OF BIRMINGHAM v. GRAHAM.
• Court: Alabama Supreme Court

79 So. 574

202 Ala. 202

CITY OF BIRMINGHAM v. GRAHAM.

6 Div. 718

Supreme Court of Alabama

June 27, 1918

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by the City of Birmingham against Mrs. Ella M. Graham to abate a nuisance. From a decree dismissing the bill, the municipality appeals. Affirmed.

M.M Ullman and W.A. Jenkins, both of Birmingham, for appellant.

Henry Upson Sims, of Birmingham, for appellee.

THOMAS J.

The bill was filed by the municipality to abate as a nuisance certain buildings alleged to be maintained on a given street by the respondent.

It is necessary that the several conveyances by B.P. Worthington to Josiah Morris as trustee, and to Elyton Land Company, of the lands embraced in Thirty-First street, at the point of obstruction, be considered in the light of the subsequent conduct of the parties in order to determine whether an unconditional or unincumbered dedication thereof to the public was intended and accepted.

The tract of land on which the dwelling of Mr. Worthington then stood was not granted to the Elyton Land Company by the deed of September 8, 1870. Of the exception contained therein complainant's bill alleges:

"The lands which were excepted and not conveyed consisted of two acres *** upon which was located the dwelling house in which the said B.P. Worthington and his wife, Caroline Worthington, then resided, and it was provided in said deed that the said two acres of land is reserved by the parties of the first part, subject to the following conditions and terms: 'That if the said party of the second part or the company or association of persons which it is proposed to organize and incorporate under the corporate name and style of the Elyton Land Company, shall at any time within two years from this date desire to purchase the said two acres of land, the said party of the second part, or the said land company by its corporate name, shall have the right to purchase the same, and the said parties of the first part shall be bound to sell and convey to said purchasers the said two acres of land and all improvements thereon, upon being paid by the said party of the second part, or the said land company, twenty-five dollars in cash for each of said two acres, and also paying in cash the assessed value of all improvements thereon at the time of said purchase, such value to be ascertained by referees under the laws of Alabama, two of whom shall be chosen by said parties of the first part, and two by said party of the second part, or said land company, they having the right in case of disagreement to choose an umpire and their assessment of value of said improvements to be final.' " (Italics supplied.)

Whether this was a reservation or exception is immaterial. Webb v. Jones, 163 Ala. 637, 641, 50 So. 887; Weil v. Hill, 193 Ala. 407, 69 So. 438.

Before the expiration of this option, on July 22, 1872, Mr. Worthington and wife conveyed to Elyton Land Company said two acres on which their dwelling was located, on condition that:

"The said B.P. Worthington shall have the right to use and occupy the dwelling and outhouses now occupied by him situated in Thirty-First street, in the plan of the property of the Elyton Land Company between Sixth and Seventh Avenues South, until such time as the said Elyton Land Company may desire to open for public use said Thirty-First street between Sixth and Seventh Avenues South, and the said Elyton Land Company shall have the right to open said street last aforesaid at any time they may think proper--upon payment to the said B.P. Worthington in cash the aforesaid value of said dwelling and outhouses which may be situated in said street at the date of the assessment, which assessment must be made, if the parties hereto cannot agree upon the value, by referees under the arbitration laws of the state of Alabama, two of whom shall be chosen by the said Elyton Land Company and two by the said B.P. Worthington, they having the right in case of disagreement to choose an umpire and their assessment of value shall be final."

This conveyance with conditions, duly filed for record in the office of the judge of probate of the county where the lands were situated was notice of said conditions to all successors in title. Veitch v. Woodward Iron Co., 76 So. 124; Code 1907, § 3373 et seq.

Was the effect of this covenant personal or collateral as to Worthington, extending to him alone during life, or was it a covenant, running with the land, of the conditions on which Thirty-First street between Sixth and Seventh Avenues South was purchased and to be opened to the public after payment of the purchase price?

A dedication or public easement in land is generally defined as its devotion to a public use, by an unequivocal act of the owner of the fee, manifesting the intention that it shall be accepted and used presently or in futuro. In fact, most dedications have been where there was no present need of the land for the purpose to which it was set apart. On this subject the New Jersey court has observed:

"If dedication requires no deed, no grantee to take; if it be an act in pais, not required to be even in writing, manifested or accompanied by an intention to devote to public use--why may not the owner dedicate land now, with the distinct understanding that it will not be wanted for public use in 50 years? If immediate user by the public, or even immediate acceptance by a competent public authority, be, in all cases, necessary to give effect to a dedication of land to public uses, the doctrine of dedication is shorn of one of its most important uses." Mayor of Jersey City v. Morris Canal & Banking Co., 1 Beasley (12 N.J.Eq.) 547, 563; Den v. Dummer, 20 N.J. Law, 86, 106, 40 Am.Dec. 213; Trustees of M.E. Church of Hoboken v. Mayor of Hoboken, 33 N.J.Law, 13, 22, 97 Am.Dec. 696; Town of Derby, etc., v. Alling, 40 Conn. 410; City of Denver v. Clements, 3 Colo. 472.

Of the acceptance of a dedication, we may observe, that it must be by competent authority; that it may be evidenced in several ways: (1) By deed or other record; (2) by acts that operate as an estoppel in pais; or (3) by long-continued use on the part of the public in such wise that a dedication and acceptance is presumed. City of Mobile v. Chapman, 79 So. 566; City of Baltimore v. Broumel, 86 Md. 153, 37 A. 648; New Windsor v. Stocksdale, 95 Md. 196, 52 A. 596.

Conditions and limitations may be annexed to dedications; and the acceptance of a dedication is subjection thereto, unless they are subsequently expressly waived by the dedicator or his privies in estate.

Mr. Elliott (Roads & Streets, vol. 1, § 163) collects authorities to the effect that an owner may grant whatever estate he sees fit, and "may annex conditions and limitations to his grant at pleasure, provided such limitations and conditions are not inconsistent with the dedication and will not defeat the operation of the grant. A condition or limitation which would render the dedication ineffectual cannot be annexed; thus, a man cannot reserve possession to himself, nor reserve a right to do anything in the way which will destroy its character as a public way." McMahon v. Williams, 79 Ala. 288; Weil v. Hill, 193 Ala. 407, 69 So. 438; 2 Devlin on Deeds, §§ 968, 970c, 971, 990a, 990e; Sims on Covenants, p. 227. This limitation would apply to the Elyton Land Company's dedication to the public if it had an unincumbered title to the land. It can have no application to Mr. Worthington's vendor's lien thereon for the cost or value of said buildings.

As an authority for the right of the owner to annex to a dedication a reasonable and consistent limitation or condition, see Antones et al., Trustees, etc., v. Heirs of Eslava, 9 Port. 527. In that case the Chief Justice, who writes the opinion, observes that property may be dedicated to public or religious uses, and that the law does not prescribe an exact period beyond which the original proprietor shall not withdraw property from the use to which he has dedicated it, holding that, under the circumstances indicated in that particular case, acquiescence for only 20 years showed that the dedication was only for the use of the church during the sovereign pleasure of the King of Spain. This case is cited with approval in Doe ex dem. Kennedy's Ex'rs v. Jones, 11 Ala. 63, where it is held that where no limitations are expressed in the dedication of a street, it extends across the shore to low-water mark, as the shore may be reclaimed or filled up by accretions and become a part of the town. There are, however, conditions of another class, that have been sought to be annexed to dedications of land to public use, that are condemned; such as, those intended to be annexed to an absolute dedication to the public, seeking to secure to the dedicator, his heirs and assigns, qouad other property, "an immunity from public burdens." On grounds of public policy no one will be exempted from the discharge of burdens imposed upon others similarly situated; and authority to accept a grant with such conditions of immunity annexed, is denied. Richards v. Cincinnati, 31 Ohio St. 506, 513.

If it be insisted that the clause in question, in the Worthington deed, was in part the reservation of a right, it should be noted that reservations in conveyances may be either of a right personal to the grantor, or of a right appurtenant to his lands for the benefit of which it is reserved. Such personal right is not assignable (Norcross v James, 140 Mass. 188, 2 N.E. 946; Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461, 43 N.W. 469, 6 L.R.A. 111), and does not pass to a grantor's heirs or personal representatives (Kister v. Reeser, 98 Pa. 1, 42 Am.Rep. 608; Cave v. Crafts, 53 Cal. 135; Tucker v. Jones, 8 Mont. 225,...