East Birmingham Realty Co. v. Birmingham Machine & Foundry Co.

• Citation: 49 So. 448,160 Ala. 461
• Parties: EAST BIRMINGHAM REALTY CO. v. BIRMINGHAM MACHINE & FOUNDRY CO. ET AL.
• Decision Date: 22 April 1909
• Court: Supreme Court of Alabama

49 So. 448

160 Ala. 461

EAST BIRMINGHAM REALTY CO. v. BIRMINGHAM MACHINE & FOUNDRY CO. ET AL.

Supreme Court of Alabama

April 22, 1909

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by the East Birmingham Realty Company against the Birmingham Machine & Foundry Company and others. From the decree there was an appeal and cross-appeal. Reversed and remanded on cross-appeal, with directions.

London & London, for appellant.

Campbell & Johnson, for appellee.

McCLELLAN J.

The East Birmingham Realty Company filed this bill to quiet title to real estate, under Code 1896, § 809 et seq., against the Birmingham Machine & Foundry Company et al. The land in question is described in the bill as being a strip 50 feet wide and 2,700 feet in length, having its termini, on the west, at the right of way line of the South & North Alabama Railroad Company (Louisville & Nashville Railroad), and, on the east, at the right of way line of the Georgia Pacific Railway Company, now owned by the Southern Railway Company. An indispensable aid to an understanding of the status involved on this appeal, as well as in explanation of the reasons on which our conclusions are based, inducing decision, is the map attached, as Exhibit A, to the bill. A fac simile of the map will therefore be here incorporated in the opinion:

(Image Omitted)

This exhibit is, the record states, only a part of the plotting of an addition to "East Birmingham," by the East Birmingham Land Company, to the city of Birmingham, as that plotting is indicated by the entire map filed in the probate office of Jefferson county on July 13, 1887. The omission of the whole map is explained on the ground of want of necessity in this cause. As said by solicitors for appellant in their brief, it is not disputed that the original map was duly acknowledged and recorded as required. The strip in question is that lying between, generally and parallel with, Avenues 10 and 11 as they appear on Exhibit A, and is further indicated by short lines or dashes, in which, in the space between the two tiers of blocks, on the north side from 38a to 39b, and, on the south side, from 38b to 29c; the two railway ways being at the west and east ends. In our view the decisive inquiry is whether there was a dedication to the public of the described strip by the plotting and filing of the map thereof in the probate office of Jefferson county and an acceptance of such dedication in such sort as to estop the East Birmingham Land Company from the assertion of ownership, in severalty, thereof. If so, the complainant's bill must fail.

The respondents are the owners of several of the lots or blocks abutting on the strip in question. Many decisions rendered by this court have established the rule that on a bill filed under our statutes for quieting titles to real estate asserting no additional condition of equitable cognizance, and in response to which answer is made propounding the defendant's right, title, interest, or claim in or incumbrance upon the real estate involved, the only province of the court is to ascertain and declare the defendant's interest, right, or claim in or to the real estate in question. This is the letter of the statute. This bill is controlled by the rule stated, though it must necessarily result, in this instance, that, if a valid dedication of the territory before described was accomplished by the original company, the complainant can have no interest or right in or claim to the strip involved capable of assertion. The acts, in cases of the character in hand, operating a dedication, in the sense of full accomplishment, of lands to public uses, have been recently stated in the case of Roberts v. Mathews, 137 Ala. 528, 34 So. 624, 97 Am. St. Rep. 56, a decision citing and squaring with previous announcements by this court on the subject, in this language: "It is well settled by decisions of this court that, where a person plats land and lays off lots according to such plat, and makes sale of one or more of such lots with reference thereto, he irrevocably dedicates the land designated thereon as streets and alleys, highways, squares, and commons, to the public, for public use." As we understand solicitors in the cause, this comprehensive declaration, often used by this court, is not doubted. It is its application to the case in hand that is disputed for appellant. Nor do we understand that there is any controversy between the parties litigant as to these facts: First, that the East Birmingham Land Company owned the territory in question along with much adjacent territory; second, that that company plotted its land surrounding the strip in dispute, lying between Avenues 9 and 11, caused a map thereof to be prepared, divided the territory into alleys, named or numbered streets, numbered blocks, and numbered lots, and duly acknowledged and caused to be recorded, in the proper place, such map; and, third, disposed of blocks and lots, to persons or corporations, with reference to such map or platting. It thus results that the inquiry narrows to this: Was the strip in dispute so designated as one of the avenues of travel, service, or use as to bring it within the definition of a "dedication" before stated; or, conversely, must the disputed territory be excepted from the effect of the enumerated acts by the absence from the plotting map of a specific designation of the strip as an alley, street, highway, common, etc.?

In determining a question of dedication vel non of real estate to public use, the intention of the owner is, of course, a vital factor. The existence vel non of the requisite intent is not to be ascertained, however, from the purpose "hidden in the mind of the land owner," but is read by the courts from acts of the owner. 13 Cyc. p. 452, and notes. The result, from the principles stated, is that the issue here is purely one of fact. In 1887-88 the East Birmingham Land Company (which we hereafter refer to as the "land company") owned a considerable area of land in the neighborhood later called "East Birmingham." As indicated by Exhibit A, some of its holdings lay in the angular space between the South and North and the Georgia Pacific Railroads. The land company conceived the idea that its property between Tenth and Eleventh avenues was well situated for sites for manufacturing enterprises. Doubtless this conception was suggested by the comparative convenience of two leading lines of railway to this particular territory. Without question this situation and contemplated development of an industrial section adjacent to the city of Birmingham led the land company to construct--what is called in some of the deeds to lots or blocks in the plotted area a "Service Track"--a railroad track connecting the two railway lines and traversing the space now in dispute. It is common knowledge that to a manufacturing enterprise of any real consequence, means, by rail or water, for the transportation of materials and products to and from the plant, is absolutely essential to the success of the undertaking. It is therefore entirely reasonable to conclude from the proof in this record that the land company, inducing the location, as was done, of a number of manufacturing concerns on the territory described, held out, either by affirmative statement or by acts reasonably calculated to so impress the prospecting manufacturer, the fact of such convenience of transportation as the mentioned situation naturally afforded or would afford. While this status and the acts mentioned may not have both been existent and of force at the time the map was filed for record, they are potent in an investigation of the intent, to dedication vel non characterizing the acts of the land company in the premises, for, though the construction of the "service track" may have been subsequent in time to the filing of the map, this fact is receivable in reflecting, to a degree at least, the intent possessed by the land company in respect to the disputed strip when the plotting was made and filed. It appears from the record that several of the enterprises located between Tenth and Eleventh avenues constructed spur tracks, from the "service track," into the premises of such enterprises, have used the "service track," in connection with such spur tracks, for many years, and in at least one instance a platform was projected over a part of the disputed strip from the plant to the "service track." Besides, it also appears that, in the use of the "service track," for loading...