Coxe v. Water Works Bd. of City of Birmingham

• Decision Date: 13 April 1972
• Docket Number: 6 Div. 909
• Citation: 261 So.2d 12,288 Ala. 332
• Parties: , 2 Envtl. L. Rep. 20,320 Walter F. COXE, Individually and on Behalf of Others Similarly Situated v. The WATER WORKS BOARD OF the CITY OF BIRMINGHAM, a Public Corporation, et al.
• Court: Alabama Supreme Court

Page 12

261 So.2d 12

288 Ala. 332, 2 Envtl. L. Rep. 20,320

Walter F. COXE, Individually and on Behalf of Others Similarly Situated v. The WATER WORKS BOARD OF the CITY OF BIRMINGHAM, a Public Corporation, et al.

6 Div. 909.

Supreme Court of Alabama.

April 13, 1972.

Jerome A. Cooper, William E. Mitch, Birmingham, for appellant.

E. T. Brown, Jr., L. Vastine Stabler, Jr., Birmingham, for appellee Water Works Board of City of Birmingham.

Foster Etheredge, John P. McKleroy, Jr., Birmingham, for appellee Johnson-Rast & Hays Co.

David J. Vann, Birmingham, amicus curiae, for Birmingham Audubon Society, William J. Baxley, Atty. Gen., State of Alabama, amicus curiae.

BLOODWORTH, Justice.

This is an action for a declaratory judgment, injunction, and general equitable relief which comes to us on appeal from a final decree of the Jefferson County circuit court, in equity, denying the relief sought and dismissing the bill of complaint.

Appellant, complainant below, is a citizen and taxpayer of Birmingham, Alabama, who sues on behalf of himself and other members of the public similarly situated. Appellees are the Water Works Board of the City of Birmingham and Johnson-Rast & Hays Company, a real estate development corporation.

The controversy in this case centers around an eighty-acre tract of land owned by the Water Works Board. The land is situated along both sides of the Cahaba River in Jefferson and Shelby Counties, forty acres being located in each county. It has been known as the 'Camp Horner' property. In 1970, the Water Works Board conveyed this tract to appellee Johnson-Rast & Hays Company in consideration of a cash payment and execution of a purchase money mortgage. This suit was then filed.

The bill of complaint, as last amended, alleges as follows:

'* * * that for more than fifty years the said property has been used by the public generally as a park for picnicking, swimming, camping and other outdoor recreation.

'* * * that said property has been and was at the time of said purported sale, and is now subject to a common law dedication for use by the public as a park. As such it was and is beyond any power of said Water Works Board to convey to a private individual or company as has been attempted in the above described purported sale.

'* * * that * * * the attempted sale by the Board to the Developers was part of a scheme or device by which said other private individuals or interests, in concert with respondents are attempting to destroy the common law dedication of said property for use by the public as a park, which destruction is threatened and will be accomplished unless restrained by order of this Court.'

There are two principal issues presented on this appeal. The first is whether the trial court erred in failing to declare the property in question to have been dedicated to the public use as a park by a common law dedication. The second issue is whether the trial court erred in failing to find that the Water Works Board acted beyond its statutory authority in conveying this property in a credit transaction. We have concluded that both rulings were correct and that the decree of the trial court should be affirmed.

The necessary elements of common law dedication are well established in our case law.

'* * * To constitute a dedication there must of course be an Intention of the owner to dedicate the property and an Acceptance by the public or by some authorized person or body of persons acting in its behalf. * * *' (Our emphasis) Smith v. City of Dothan, 211 Ala. 338, 100 So. 501 (1924).

With regard to the requirement of acceptance by the public, the evidence in this case may be somewhat equivocal. However, we do not find it necessary to consider the sufficiency of the evidence with regard to this element as we have concluded that there is clearly a failure of proof with regard to the other necessary element--intention of the owner to dedicate. The record reveals no evidence of such intention on the part of the Water Works Board. To the contrary, there is evidence of numerous acts on the part of the Board which clearly negates any intention on the part of the Board to dedicate this property to the public.

The evidence is undisputed that the Water Works Board leased this property from 1933 to 1952 to the Birmingham Boys Club; leased it from 1960 to 1968 to St. Luke's Episcopal Church; evicted the caretaker of the lessee and removed the lessee's buildings, after cancellation of this lease; paid an annual sum to five surrounding municipalities in lieu of taxes; mortgaged the property, the last mortgage being recorded in 1951; granted a right of way to Jefferson County to put a road through the property; granted an easement for power lines to Alabama Power Company; paid $1,000 to have buildings, left by the Boys Club, removed; sold timber off the land; barricaded some of the roads entering the property; posted the property; and, carried the land as an asset in its annual report. In addition, the undisputed testimony of Mr. Thomas H. Collins, General Manager of the Water Works Board, was that there was nothing in the files of the Board to indicate an intention to dedicate; that he had no personal knowledge of such an intention, and that neither he, nor anyone on the Board, knew the property was being used as a public park.

This court has held that,

'* * * the burden of proving a dedication rests upon the party asserting it. * * *' Witherall v. Strane, 265 Ala. 218, 90 So.2d 251 (1956).

This court has also said that in order to carry this burden the intention of the owner to dedicate must be affirmatively established by unequivocal evidence.

'To establish a dedication, the clearest intention on the part of the owner to that effect must be shown, and the evidence must be clear and cogent, and the acts of the owner relied on to establish a dedication must be unequivocal in their indication of the owner's intention to create a public right exclusive of his own. Witherall v. Strane, supra; Smith v. City of Dothan, 211 Ala. 338, 100 So. 501.' O'Rorke v. City of Homewood, 286 Ala. 99, 237 So.2d 487 (1970).

As we have already indicated, we must conclude that appellant has not borne the burden of proof to show an intention by the Board to dedicate this property.

Appellant, however, asks that we modify the requirements for dedication, as established by the previous decisions of this court, and adopt what he characterizes as being a 'new trend.' Appellant cites to us the California case of Gion v. City of Santa Cruz, 84 Cal.Rptr. 162, 465 P.2d 50 (1970), as providing a precedent which this court might follow in relaxing our requirements with regard to the intention of the owner to dedicate. The following is a quotation from that decision:

'In our most recent discussion of common-law dedication, Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 240--241, 267 P.2d 10, we noted that a common-law dedication of property to the public can be proved either by showing acquiescence of the owner in use of the land under circumstances that negate the idea that the use is under a license or by establishing open and continuous use by the public for the prescriptive period. When dedication by acquiescence for a period of less than five years is claimed, the owner's actual consent to the dedication must be proved. The owner's intent is the crucial factor. (42 Cal.2d at p. 241, 267 P.2d 10, quoting from Schwerdtle v. County of Placer (1895) 108 Cal. 589, 593, 41 P. 448.) When, on the other hand, a litigant seeks to prove dedication by adverse use, the inquiry shifts from the intent and activities of the owner to those of the public. The question then is whether the public has used the land 'for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by any one.' (42 Cal.2d at p. 240, 267 P.2d at p. 13, quoting from Hare v. Craig (1929) 206 Cal. 753, 757, 276 P. 336.) As other cases have stated, the question is whether the public has engaged in 'long-continued adverse use' of the land sufficient to raise the 'conclusive and undisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of a mere license.' (42 Cal.2d at p. 241, 267 P.2d at p. 13, quoting from Schwerdtle v. County of Placer, supra, 108 Cal. 589, 593, 41 P. 448.)'

We will not attempt to discuss at any length the merits of California law with regard to dedication. We think it sufficient to say that the essential elements of common law dedication have been settled in Alabama case law for over 100 years, and we do not find that appellant has presented to us any compelling reason to alter such long existing and well established law. We will say, however, that even if we followed the principles enunciated in Gion, supra, there is a real question as to its applicability to ...