Forney v. Calhoun County

• Decision Date: 04 May 1888
• Citation: 84 Ala. 215,4 So. 153
• Parties: FORNEY v. CALHOUN COUNTY.
• Court: Alabama Supreme Court

4 So. 153

84 Ala. 215

FORNEY v. CALHOUN COUNTY.

Supreme Court of Alabama

May 4, 1888

Appeal from chancery court, Calhoun county; S. K. MCSPADDEN, Judge.

Bill in equity against John H. Forney to enjoin an action of ejectment. Demurrer and motion to dissolve the injunction overruled. Decree for complainant. Defendant appealed.

Kelly & Smith, for appellant.

Brothers, Willett & Willett, for appellee.

SOMERVILLE J.

A dedication of land may be defined to be an act by which the owner of the fee appropriates to some public use an easement in the land. This may be done by writing, or it may be done verbally, without any writing. It may be express, or it may be implied. It may be by a single act, or by a series of acts properly indicative of the owner's intention. The act of dedication, especially if verbal and single, must be clear and unequivocal and satisfactorily proved. The most frequent mode of proving the intention to dedicate is by the declarations of the owner. A single clear and unequivocal declaration may be sufficient for this purpose. But a presumption of dedication will not follow from mere user, without more, for any period short of 20 years. To be effective and valid, a dedication must be accepted; and such acceptance may be shown either by some positive conduct of the proper public officers evincing their consent in behalf of the public, or may be inferred from official acts of implied recognition on their part, or by long public use or from the beneficial nature of the dedication. When once accepted, an easement becomes vested in the public, which is irrevocable, although the dedication, as originally made, was voluntary, in the sense of being made without any valuable consideration. These conclusions are familiar principles of law, fully supported by the authorities. Steele v. Sullivan, 70 Ala. 589, and cases there cited; Boone, Real Prop. § 139, and cases cited in notes; Tied. Real Prop. § 611; Buchanan v. Curtis, 3 Amer. Rep. 23; City of Cincinnati v. White, 6 Pet. 431; Smith v. Inge, 80 Ala. 284; Railroad Co. v. JOnes, 68 Ala. 48. The public uses to which property may be dedicated are various. It may be for a street, avenue, or other public highway; for a public square, or public commons; for pleasure grounds or for a grave-yard; for water-works or a wharf; for a market-house or for a court-house, as in the present case; or other uses of a public nature. City of Morrison v. Hinkson, 87 Ill. 587, 29 Amer. Rep. 77; Mankato v. Willard, 13 Minn. 18, (Gil. 1;) McKinney v. Griggs, 5 Bush, 401, 96 Amer. Dec. 360, note, 367; Trustees v. Cowen, 4 Paige, 510; Hunter v. Sandy Hill, 6 Hill, 407; Child v. Chappell, 9 N.Y. 246; Abbott v. Mills, 3 Vt. 521, 23 Amer. Dec. 222. And it may be said, in general terms, that "all sorts of easements and rights to the enjoyment of land, whether of use or of pleasure, which may be acquired by an individual by grant or prescription, may also be acquired by the public by actual dedication." Boone, Real Prop. § 139. The doctrine of equitable estoppel applies with peculiar force to cases of this kind. Where the owner of land intentionally, or by culpable negligence, leads the public to believe that he has dedicated it to a public use, he will, upon every principle of fair and conscientious dealing, be estopped from denying the fact of such dedication to the prejudice of those whom he has thus misled. The fee, or legal title of the land, may remain vested in the owner; but the principle of estoppel will operate to preclude his claim of any exclusive right of possession, such as would interfere with the easement created in the public by his act of dedication. As said by DENIO, J., in Child v. Cappell, 9 N.Y. 256, such dedication "operates in the nature of an estoppel, upon the principle that to retract the promise implied by such conduct, and upon which the purchaser [of an adjacent lot] acted, would disappoint his just expectations." And a court of chancery will intervene to protect the public in the enjoyment of this easement against any interference of the owner of the legal title, bringing to their assistance the prompt aid of its injunctive relied. City of Cincinnati v. White, 6 Pet. 442; Boyce v. Kalbaugh, 47 Md. 334, 28 Amer. Rep. 464; Hobbs v. Lowell, 19 Pick. 405, 31 Amer. Dec. 145; 1 Greenl. Ev. § 207; Boone, Real Prop. §§ 139, 253; Beatty v. Kurtz, 2 Pet. 566.

The bill alleges, with sufficient clearness, conduct and declarations on the part of the defendant, Forney, which operated as a dedication of his undivided interest in the land in controversy to the public use, as a site for the court-house of Calhoun county. The fact is averred that this dedication was accepted by the court of county commissioners; and that, acting upon the faith of it, they had proceeded, with the knowledge and acquiescence of the defendant, to construct a court-house upon the premises at a cost to the county of some $14,000. Under this state of facts, the defendant was estopped to contradict the validity of such dedication, or its binding force upon him, by reason of its resting in parol, instead of grant by deed.

Apart from the feature of dedication to public uses, which, as we have said, may be affected by parol declarations, or otherwise by conduct in pais, the bill would, in my opinion, probably have equity on another ground as a bill for specific performance. It alleges, in this aspect, a parol promise to make a gift of lands to the county, upon the faith of which the commissioners took actual possession, and were induced to make valuable improvements. Would it not be a fraud on the donee in such a case to permit him to be ejected on the strength of the donor's legal title, in view of a promise by him to make a conveyance? There are well-considered decisions which hold that the statute...