Highland Realty Co. v. Avondale Land Co.

• Decision Date: 23 November 1911
• Parties: HIGHLAND REALTY CO. v. AVONDALE LAND CO.
• Court: Alabama Supreme Court

56 So. 716

174 Ala. 326

HIGHLAND REALTY CO. v. AVONDALE LAND CO.

Supreme Court of Alabama

November 23, 1911

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

Bill by the Highland Realty Company against the Avondale Land Company. From a decree for defendant, complainant appeals. Reversed, rendered, and remanded.

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

R. C Redus and Cabaniss & Bowie, for appellee.

SOMERVILLE J.

The bill is filed by appellant, the Highland Realty Company, and shows, in support of its prayer for relief, the following material facts: On January 27, 1888, the respondent, the Avondale Land Company, owned a large tract of land near the city of Birmingham, Ala., and, for the purpose of establishing a town or city, on that day it had this land surveyed, mapped, and platted, and the map, duly certified, adopted, and acknowledged, filed for record in the probate office. This map shows that the tract was laid off into a great number of streets, avenues, alleys, blocks, and lots in an approximately regular way, as numbered and marked on the map. With reference to this map or plat, the Avondale Land Company has sold off lots, and improvements and dwellings have been constructed thereon. Among others, the respondent sold lot 7, in block 55, to A. P. Burns, in October, 1890. This lot fronts 50 feet on Thirteenth avenue, which is perhaps 1,000 feet in length, and is intersected by 5 cross streets, which furnish outlets from it in various directions. Complainant purchased this lot from said A. B. Burns by deed, executed on July 8, 1907, and has since been the owner thereof. On May 1, 1908, respondent and the Fifth Avenue Company jointly filed in the probate office a written instrument, duly acknowledged by their presidents, by which they undertook to vacate and annul portions of said plat, in accordance, as they aver, with section 6032 of the Code, and reciting that they are the owners of all the streets, avenues, and alleys vacated by the instrument. Thereupon, on the same day, the probate judge, in compliance with section 6034 of the Code, indorsed the vacation on the plat, indicating in red ink the portions of the plat declared vacated. These vacated portions include the greater part of the plat, and completely surround complainant's lot, blotting out all connecting streets and avenues, and leaving only a short section of Thirteenth avenue without exit at either end. The tract of land included in the plat does not lie within any incorporated town or city.

The bill of complaint, according to its prayer, has a threefold purpose: (1) to have the attempted vacation of the plat declared null and void, and canceled as constituting a cloud on complainant's easement and right of way over and upon the avenues, streets, and alleys created by said plat; (2) to quiet complainant's right as against the respondent; and (3) to enjoin the respondent from interfering with and exercising any authority over said avenues, streets, and alleys, and from interfering with complainant's right to the use and enjoyment thereof. The allegations of the bill are framed with a view to supporting the prayer for these several forms of relief. There is also language in the bill proper, and in the prayer, indicating a notion in the pleader's mind that it might serve the purpose of a bill to quiet title. Respondent demurred to the bill, assigning numerous grounds, and the demurrer as a whole was sustained by the chancellor. From the decree sustaining the demurrer, complainant prosecutes this appeal.

1. With respect to respondent's attempt to vacate the plat, or portions thereof, conceding that the plat conforms to the specifications of the statutes, the case is governed by the provisions of the act of February 28, 1889, appearing as sections 3899-3905, in the Code of 1896. Sections 3902 and 3903 specify the mode in which such a plat may be vacated in whole or in part; and the latter section expressly declares that "such vacation shall not abridge or destroy any of the rights or privileges of other proprietors in such map or plat of land." It is to be inferred from this language that any portion of the plat may be vacated by those who own the lots included therein; and that, as to such portion, including, of course, streets, alleys, and public places, the general public right, and also the rights of those joining in the act of vacation, are fully extinguished. But, on the other hand, the rights of other lot owners, who do not join in the act, are scrupulously preserved, even as to the vacated portions, just as though there had been no vacation at all. No other interpretation is tenable.

The effect of platting land and selling lots with reference thereto has been frequently declared by this court. The general rule is that, when a landowner lays off his land into blocks and lots, setting apart and designating certain portions as streets, with a view to establishing a town, followed by a sale of lots with reference to a map defining and delineating the streets, this is a complete dedication thereof to the use of the purchasers and the general public. And, "such dedication and its acceptance vest in the purchaser of lots the right to have the streets referred to in the plan remain public, and deprive the owner of the right to obstruct the street, or to pervert it to uses other than those to which it was dedicated." Sherer v. City of Jasper, 93 Ala. 530, 9 So. 584. Such dedication is perfected and made irrevocable by the sale of a single lot. By such a sale, "every line of the survey which served to mark those parts of the site intended to be reserved from sale for the use of the public became unalterably fixed--dedicated to the public for all time." Webb v. Demopolis, 95 Ala. 116, 126, 13 So. 289, 21 L. R. A. 62. So far as the public right is concerned, there must be an acceptance of the dedication, of which, however, the sale and purchase of lots is sufficient proof. Evans v. S. & W. Ry. Co., 90 Ala. 54, 58, 7 So. 758.

It will be observed that dedication in the manner above discussed creates rights, not only in the general public, but also in every purchaser of a lot within the platted tract. While these private rights, as appurtenant to a thus purchased lot, have been recognized in general terms by decisions of this court, their specific character and precise extent do not seem to have been determined. See Sherer v. City of Jasper, 93 Ala. 531, 9 So. 584; Reed v. Birmingham, 92 Ala. 348, 9 So. 161; Evans v. S. & W. Ry. Co., 90 Ala. 58, 7 So. 758.

Without undertaking any extended discussion of the subject, we unqualifiedly approve the reason and justice of the rule as stated by Mr. Elliott: "It is not only those who buy land or lots abutting on a street or road laid out on a map or plat that have a right to insist upon the opening of the street or road; but, where streets and roads are marked on a plat, and lots are bought and sold with reference to the plat or map, all who buy with reference to the general plan or scheme disclosed by the plat or map acquire a right in all the public ways designated thereon, and may enforce the dedication. The plan or scheme indicated on the map or plat is regarded as a unity, and it is presumed, as it well may be, that the public ways add value to all the lots embraced in the general scheme or plan. Certainly, as every one knows lots with convenient cross streets are of more value than those without, and it is fair to presume that the original owner would not have donated land for public ways, unless it gave value to the lots. So, too, it is just to presume that the purchasers paid the added value, and the donor ought not, therefore, to be permitted to take it from them by revoking part of his dedication." Elliott on Roads and Streets, § 132. Not only is this the rule of reason and justice, but, as shown by the author's...