City of Mobile v. Chapman

• Decision Date: 24 January 1918
• Docket Number: 1 Div. 985
• Citation: 79 So. 566,202 Ala. 194
• Parties: CITY OF MOBILE et al. v. CHAPMAN.
• Court: Alabama Supreme Court

79 So. 566

202 Ala. 194

CITY OF MOBILE et al. v. CHAPMAN.

1 Div. 985

Supreme Court of Alabama

January 24, 1918

Rehearing Denied April 25, 1918

Appeal from Circuit Court, Mobile County; Thomas H. Smith, Judge.

Suit by Delena L.L. Chapman against the City of Mobile and others. From decree for complainant, defendants appeal. Reversed, and judgment rendered for defendants.

To establish ownership to street adjacent to one of squares shown on map to which decree in partition referred, burden rests on claimant to delimit exception of such street presumptively dedicated to public, from land allotted.

The maps and plans, directed to be reported, follow:

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Robert H. Smith, of Mobile, for appellants.

Stevens McCorvey & McLeod, of Mobile, for appellee.

This cause was submitted and considered under Rule 46, and the opinion of the court was delivered by Mr. Justice THOMAS.

Appellee filed her bill to enjoin the city of Mobile from laying a sanitary sewer along a certain street or property in that city. The chancery court decreed that appellee was entitled to the relief prayed, but, recognizing the city's right of eminent domain, allowed the municipality 30 days within which to institute condemnation. Const. §§ 23, 235. Appellants obtained a supersedeas, and brought this appeal.

The averments of the bill were that:

Appellee is the owner of a "parcel of land in the city of Mobile described as that part of the south two-thirds of the south half of the southern division of the Bernoudy tract lying east of Old Water street, which parcel of land is bounded on the south by the south line of the Bernoudy tract, on the north by a line parallel to said south line of the said Bernoudy tract and 296 feet and 10 2/3 inches north thereof, on the west by Old Water street and on the east by Mobile river; that your oratrix, by and through tenants holding under her, has been in the actual occupancy of the said parcel of land for approximately ten years, and still maintains such occupancy; that in addition to such possession she has a good and valid title thereto, unquestioned and undisputed except in so far as concerns the claim asserted by the said city of Mobile. *** That no street has ever been opened or used through the said premises, but if Virginia street in the city of Mobile were projected east from Old Water street to the river, which is a distance of about 1,800 feet, it would pass through the said premises and include a strip 50 feet wide extending east and west entirely through the north side of the said premises and so close to the north line as to leave thereof a strip only about 13 inches in width to the north of the street so projected. *** That the city of Mobile has authorized the construction of a large sewer coming east on Virginia street from the western portion of the city, and has planned and contemplates the running of said sewer through the aforesaid premises of your oratrix along the line of what would be Virginia street were it projected through said premises. *** That the said city of Mobile claims that the said Virginia street extends east of the Old Water street and to the river, and that it, the said city, has the power and authority to use the space which would be embraced in said street if it were so extended and for any purpose for which a public street may be used by the municipal authorities; that the said city claims the right to lay the said sewer through the said premises of your oratrix and along the line of what would be said street if projected east from Old Water street to the river, and, under the force and power which it can exercise as a governmental body through its police officers, will take and use the said premises for said purpose unless restrained therefrom by an injunction from this honorable court; that the said sewer will be permanent in its nature, and such taking and user of a portion of the said premises of your oratrix will involve and constitute a permanent appropriation thereof, which, if permitted to continue, will ripen into an easement, and result in the destruction of your oratrix's ownership and right to said property; that it will also constitute a continuing trespass of such nature that it will cause to your oratrix irreparable damage."

Appellee's counsel, in a word, thus further states the substance of his bill:

"It is further alleged that the claim of the city to the effect that the property in dispute is a street is unfounded and erroneous; that it was never dedicated as a street, or if there was such a dedication, it was never accepted by the city; that it was never opened or used as a street; that appellee never dedicated any part of it as a street, and can find no record of evidence of any such dedication by any previous owner. In short, the bill denies the city's claim that the property in dispute is a public street."

No preliminary injunction issued upon or after the filing of the bill, and the city of Mobile installed the sewer and continues to use the same. On the hearing, by amendment of the bill these subsequent occurrences were alleged, and appropriate prayer was added, for a mandatory injunction compelling the removal of the sewer. The cause was tried upon the pleadings and an agreed statement of facts. There were certain objections to the legal sufficiency of portions of the agreed statement of facts.

The city's answer makes a part thereof certain proceedings had, in 1851, in the chancery court of Mobile, in suit No. 1694, for the partition of real properties among joint owners. The reporter will set out in his statement of facts the certified map of the commissioners (in said partition suit No.

1694), Cleveland, Monroe, and Gale, of date March 18, 1861, Exhibit No: 1, appearing on the records of the chancery court, in Record Book R, pp. 810, 809, 807, of the lower division of the Bernoudy tract; and Exhibit No. 2, the map of ward book of the city, drawn by Lewis Troost as city engineer, purporting to embrace the lands in said city bounded on the east by Water street and traversed by Virginia, Maryland, and Pennsylvania streets from said Water Street East to the Mobile river. Said answer avers that there was a "general recognition of and the sale of lots of land by the parties to the partition suit in this [chancery] court numbered upon the docket thereof as 1694, by reference to the map filed by the aforesaid commissioners appointed in said partition suit, in this court on the 18th day of March, 1861, and recorded in this court in Book of Records R, pp. 806-810"; that the complainant "has bought and sold land in the city or Mobile, referring directly to the map of record in this court in Record Book R, pp. 807-810, and that such transactions upon the part of the complainant made an irrevocable dedication of said Virginia street from Old Water street to the channel of Mobile river, as shown upon the map made by the aforesaid commissioners, Monroe, Cleveland, and Gale, in the year 1852, and made a part of partition proceedings in cause 1694 of the records of this court." The city's answer admitted that the complainant owner the land described in the bill, "with the exception of a 50-foot street known as Virginia street, running near the northern boundary line of the land o said complainant from Old Water street to the Mobile river, as fully appears upon maps attached to this answer as Exhibits Nos. 1 and 2, and made a part of this answer." That exception is further described as follows:

The "northern edge of Virginia street projected east from Old Water street to the Mobile river would pass through the said premises and include a strip 50 feet wide, extending east and west entirely through the north side of the said premises, and so close to the north line as to leave thereof a strip of about 1 foot and 1 inch in width to the north side of the street."

The action of the city in contracting for the laying of the large sewer along and under Virginia street eastward to Mobile river is averred to be "lawful and proper," from the facts stated tending to show that the absolute ownership of the lands in question was in the city of Mobile as a dedicated street in that city from a distance west of Water street and extending east of Water street to the channel of Mobile river. It is further averred that the construction of said sewer was not an invasion of complainant's property right in the land along which the sewer would be laid to its discharge in said river.

The complainant must establish the material allegations of her bill; one, among others, being that she is the owner of said tract of land on which the sewer was constructed, and that the maintenance of the sewer would constitute a permanent appropriation of, and a continuing trespass to her said lands, resulting in an irreparable injury to complainant.

It will be observed that the city seeks no affirmative relief; that the burden remains on the complainant to prove the material allegations of her bill. Robinson v. Griffin, 173 Ala. 372, 56 So. 124. Generally speaking, negative averments need not be proved as pleaded. Where, however, the right to relief is grounded on such negative averments, the pleader must establish the truth of the same by evidence "unless the subject-matter of the averment lies peculiarly within the knowledge of the other party." Givens v. Tidmore, 8 Ala. 745-751; Freeman v. Blount, 172 Ala. 655, 55 So. 293; 5 Cyc.Dig.Ala.Rep. 592, § 240; 10 R.C.L. 542; Spieres v. Parker, 1 T.R. 141; 1 Chitty on Pl. 206; 1 Greenl. Ev. 152, § 78. Such material allegations, to be proven by complainant, were (second paragraph of bill) that she "is the owner" of the land in question, and, in addition to the possession averred...