City of West End v. Eaves

• Decision Date: 02 July 1907
• Citation: 152 Ala. 334,44 So. 588
• Parties: CITY OF WEST END v. EAVES.
• Court: Alabama Supreme Court

44 So. 588

152 Ala. 334

CITY OF WEST END v. EAVES.

Supreme Court of Alabama

July 2, 1907

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Suit by the city of West End against Jesse Eaves. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Powell & Blackburn, for appellant.

A. C. &amp H. R. Howze, for appellee.

DENSON J.

This bill is filed for the purpose of enjoining respondent from obstructing a public street, known as "Powell Street," within the corporate limits of the complainant. The vital question in the case is whether or not the West End Land & Improvement Company, a corporation, in 1887, made an express common-law dedication to the public use of the land covered by the alleged street, as it runs from the Alabama Great Southern Railroad track to the Tuscaloosa road. The bill alleges: That within the corporate limits of the complainant is a public highway known as "Powell Street." That said street was laid off and dedicated to the public in 1887. That at the time of said dedication the complainant was not organized as a municipal corporation, but that said dedication was made in the following manner: C. B Powell owned all the land on the south side of the Alabama Great Southern Railroad track, where it now runs through the corporate limits of complainant, for the full length of said street on the south side, and the West End Land & Improvement Company owned the land on the north side of said railroad track where said street was laid off; that Powell dedicated said street on the south side in statutory form, and made a contract with the West End Land & Improvement Company whereby it agreed to open, and did open, said street through its said lands to the Tuscaloosa road--said street as opened being dedicated and laid off by the extensions of the lines of said Powell street across said railroad and through the property of the West End Land & Improvement Company; that said street was dedicated by said company through its lands 80 feet wide. It is further shown by the bill that the consideration for the dedication by the company was that the said Powell agreed to grade and open said street at his own expense through his own lands and through the lands of the company; that at the time the company's lands through which said street was laid off were low, wet, marshy, and impassable; and that at one end of said street was an embankment, which had to be removed in order to make the street the same grade as the Tuscaloosa road, and a bridge was built across a ditch which was necessarily cut across the street to properly drain it. It is shown by the bill that Powell, in compliance with the alleged agreement, graded the street, built the bridge removed the embankment, and filled in the marsh with broken stone. It is then averred that since said street was constructed in 1887 the public have continuously used it as it lies; that it was maintained, and the bridge and ditch kept in repair, by the people in the vicinity, until the complainant was in 1900 created by an act of the Legislature, since which time it has been maintained, and the bridge and ditch kept in repair, by the complainant, as one of the streets of the complainant. The answer of the respondent denies that the contract of dedication was ever made by the West End Land & Improvement Company and denies all the allegations of the bill in respect to the dedication. The chancellor found against the complainant on the evidence and dismissed the bill.

The contract by which it is claimed the dedication was made, it is insisted, was made by Powell with the West End Land &amp Improvement Company, acting and contracting through R. H. Pearson as its president. The only direct testimony for the complainant in respect to the making of the contract of dedication is that of C. B. Powell. It is to the effect that the West End Land & Improvement Company owned a large tract of land on the north side of the railroad, and he owned 100 acres on the south side. Arthur Owen Wilson was employed by both of the parties to lay off their respective lands into town lots; Powell's employment of him being first in point of time. At the time of the employment there was considerable activity in real estate in that district, and nearly all the civil engineers had more than they could do. It was agreed between Pearson and witness that the company's land should be first laid off by Wilson, and in consideration of that agreement, the witness testified, "we were to have one street through my property to extend across the Alabama Great Southern Railroad to a connection with the Tuscaloosa road, which runs through the company's property a few hundred feet over the Alabama Great Southern Railroad in the same direction. * * * Wilson, the engineer, was to make a survey, and run the lines of the streets on the same line as in my survey." The evidence shows that Wilson did make the survey, and projected the lines of Powell street through the lands of the company; and the undisputed proof shows that Powell constructed the street through his own lands and...