Manning v. House

• Decision Date: 12 June 1924
• Docket Number: 6 Div. 24.
• Citation: 100 So. 772,211 Ala. 570
• Parties: MANNING ET AL. v. HOUSE.
• Court: Alabama Supreme Court

100 So. 772

211 Ala. 570

MANNING ET AL. v. HOUSE.

6 Div. 24.

Supreme Court of Alabama

June 12, 1924

Rehearing Denied June 30, 1924.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill in equity by Ernest W. House against the North Birmingham Land Company, the Wilson Land & Improvement Company, K. A. Averyt W. E. Manning, and Laura E. Manning, to prevent the obstruction of a public street. From a decree adjudging that respondents have no title or interest in lot 7 and a triangular fraction of lot 6, and enjoining the obstruction of the street running thereon, respondents appeal. Corrected and affirmed.

Leader & Ullman, of Birmingham, for appellants.

Vassar L. Allen, of Birmingham, for appellee.

BOULDIN J.

The bill is to enjoin the obstruction of an alleged public street.

The issue on the merits is whether there was a dedication of the property to public use.

In 1907, North Birmingham Land Company owned a rectangular tract of land, some 34 acres in area. W. G. Tyler and E. W. Averyt purchased this tract, with a view to develop and sell the property in town lots for residence purposes. South of this property lay the rights of way of two railroads, and south of the railroads lay an addition known as Park Place in North Birmingham. There was no convenient passway from the proposed addition to North Birmingham. The promoters, therefore. in connection with their purchase acquired by North Birmingham Land Company a fractional part of lot 6 and the whole of lot 7, block 41, of Park Place addition, for the purpose of opening a direct street connection between their acreage lands and Thirty-Eighth avenue, North Birmingham. Messrs Tyler and Averyt organized Wilson Land & Improvement Company a corporation, to take over their purchase, and they became its managing officers. The acreage lands were laid off into blocks, lots, streets, avenues, and alleys. A plat or map, designated thereon as "Map of Fairmont-Wilson Land & Improvement Co.'s Addition to North Birmingham, Jefferson County, Alabama," was prepared, certified, and recorded in the office of the judge of probate. On this map is shown Twenty-Eighth street, 60 feet wide, running north and south through Fairmont. This street extended south would intersect Thirty-Eighth avenue somewhat east of Twenty-Eighth street of Park Place. The map does not show the avenues and streets of Park Place. It does show in dotted lines an extension of Twenty-Eighth street, Fairmont, in a southwesterly direction across the railroad tracks into Park Place, thence south in the direction of Thirty-Eighth avenue, North Birmingham. This extension is marked "28th St." on the map, and appears of equal width with Twenty-Eighth street in Fairmont.

Without further details, we find from all the evidence that this extension on the map was intended to show a street through fractional lot 6 and lot 7 bought for that purpose, and connecting Twenty-Eighth street, Fairmont, with Thirty-Eighth avenue, North Birmingham.

Pursuant to this purpose, a portion of the curbing and sidewalk on Thirty-Eighth avenue abutting lot 7 was removed and some grading done on lot 7. Negotiations were begun to get a grade crossing over the rights of way of the railroads. A crossing being refused, Wilson Land & Improvement Company entered and proceeded to construct a crossing without leave. The railroad crew promptly tore it out. Efforts to get a crossing continued until some five years later when the county of Jefferson and the railroad companies co-operated in building an overhead bridge at Twenty-Seventh Street, further west.

Meantime Wilson Land & Improvement Company proceeded to market lots in Fairmont. Residences were erected. The public proceeded to use lot 7 and fractional lot 6 in passing on foot from Fairmont to Thirty-Eighth avenue, the direct route to the public school, the street car line, and over an improved street into Birmingham. The physical conditions prevented vehicles from crossing the railroad tracks, but they freely used lots 6 and 7 as occasion offered. This use was continued until the bill was filed.

At the time Fairmont was laid out, North Birmingham Land Company also owned lots 8 and 9, adjoining lot 7. About 1909 lots 8 and 9 were sold to W. D. Yerby, who proceeded to erect two residences thereon fronting on lot 7. One of these residences is now owned by the complainant, B. W. House. The use of lot 7 for all the purposes of a street in connection with these residences has continued without hindrance until 1920, when Wilson Land & Improvement Company sold and conveyed a portion of it to W. E. Manning, who proceeded to erect a residence thereon obstructing the free use of lot 7 as a public street. Hence the suit. Thus far the facts are admitted or fairly inferred from the whole record. Further discussion in connection with questions raised in defense will suffice.

Was there a statutory dedication?

Our statute says:

"Such plat or map shall show the streets, alleys, and public grounds, and give the bearings, length, width, and name of each street," etc. Code 1907,§ 6028.

The map shall be certified by the surveyor and signed and acknowledged in the same manner as deeds by the owner, his agent, or attorney, etc. Code 1907,§ 6029.

"The acknowledgment and recording of such plat or map shall be held in law, and in equity to be a conveyance in fee simple of such portion of the premises platted as are marked or noted on such plat or map as donated or granted to the public." Code 1907, § 6030.

These statutes intend that streets shown on plats certified, acknowledged, and recorded as prescribed are forthwith dedicated to the public use, without awaiting acceptance or use by the public. The recorded plat is its own full and complete evidence of dedication. Title to such street is held in trust to be devoted to actual use when the public convenience requires, and revocable only in the manner prescribed by statute. It is essential that the statutes be substantially followed. The street must be so identified on the map, as to location, width, and length, that a surveyor may thereafter go upon the ground and lay it out. Smith v. City of Opelika, 165 Ala. 630, 51 So. 821; East Birmingham Realty Co. v. Birmingham Machine & Foundry Co., 160 Ala. 461, 49 So. 448.

The map before us is not shown to have been acknowledged, does not give the bearings of the street in question, nor its length. It appears from the testimony that when reproduced upon the ground by scale and bearings indicated by the map, this extended Twenty-Eighth street would not conform to lot 7 and fractional lot 6, conveyed for the purpose, and would not extend to Thirty-Eighth avenue. It cannot be given effect as a statutory dedication. 18 C.J. p. 67, § 59.

Was there a common-law dedication?

A "dedication" is a donation or appropriation of property to public use by the owner, accepted by the public. It may be in writing or in parol; may be evidenced by words or acts; by one declaration or unequivocal act, or by a course of conduct evincing a clear purpose to dedicate. Hill v. Houk, 155 Ala. 448, 46 So. 562.

Where an owner causes his lands to be surveyed and platted, whether the plat be recorded or not, and proceeds to sell one or more lots according to the plat, this is a completed dedication of the streets laid out on the plat. The...