McPhillips v. Brodbeck
Decision Date | 20 April 1972 |
Docket Number | 1 Div. 690 |
Parties | Carolyn L. McPHILLIPS et al. v. Arnold M. BRODBECK, Jr. |
Court | Alabama Supreme Court |
Garet Van Antwerp, III, Mylan R. Engel, Mobile, James R. Owen, Bay Minette, for appellants.
Wilson Hayes, Bay Minette, for appellee.
This case involves the vacation of a portion of a public way which will hereafter be referred to as a 'street' in Baldwin County. The street in question lies within a recorded plat known as Brodbeck & Zundel Brothers and leads to Mobile Bay. It is the western end of the street that was vacated. The complainant, Arnold M. Brodbeck, Jr., owns a lot which abuts Zundel Street east of that part which was vacated. The respondents Carolyn L. McPhillips, Joseph A. McPhillips, and Norman Nicolson, own all the property on both sides of the western end of Zundel Street. A copy of the above mentioned plat is appended as an exhibit to this opinion so that the geography of the case may be better understood.
The complainant filed a bill in equity to set aside the vacation of the western end of the street and to enjoin respondents from interfering with his use of the street. The Circuit Court of Baldwin County, in Equity, entered a decree granting the complainant the relief prayed for and it is from this decree that this appeal is taken.
The pertinent facts were stipulated, and it was on the basis of these facts that the Circuit Court must necessarily have based its decree. The facts set forth in the stipulation were essentially the same facts set forth in the bill of complaint, to which appropriate demurrers were filed, presenting the question as to whether or not they entitled the complainant to the relief prayed for. We now set forth the stipulation:
'STIPULATION
'That the parties by and through their respective Attorneys, in open Court, at the pre-trial conference set for May 24, 1971, stipulate and agree that the facts to be submitted to the Court in this cause are:
'1. That there is a Sub-division called Brodbeck & Zundel's Subdivision on record in Misc. Book 1 at page 247, Baldwin County Probate Records, which was recorded in the office of the Judge of Probate on January 25, 1909; that said sub-division has in it a street or public way called Zundel's street as appears on the Plat running East and west from the Point Clear Road, now U.S. Highway 98, to Mobile Bay;
'2. That Complainant, Arnold M. Brodbeck, Jr. is an owner on Zundel's Street owning the 'Store Lot' shown on Complainant's Exhibit A; that the Respondents, McPhillips and Nicolson are abutting owners on Zundel's Street, as shown on Complainant's Exhibit A;
'3. That on the 24th day of August, 1970, the Respondents executed a declaration of vacation and submitted the same to the Baldwin County Commission's (sic) for said Commission's assent thereto; that said Bladwin County Commission adopted a Resolution at a meeting of said Commission held on October 6, 1970, in which it assented to said vacation; that said Respondents are the sole owners of the property abutting on that part of said Zundel's Street which is described in said declaration of vacation; the metes and bounds description contained in the declaration of vacation describes the portion of Zundel's Street shown on complainant's Exhibit A as lying between 'McPhillips' property and 'Nicolson' property.
'3--A. Complainant has access to and from his property by way of U.S. Highway 98.
'4. That Complainant has no other convenient access from his property to Mobile Bay except by Zundel's Street as shown in the Plat of said Sub-division.
'5. That on October 20, 1970, the Baldwin County Commission adopted a Resolution undertaking to rescind its prior assent to vacation of said public way;
7. That after the declaration of vacation, with certified copy of the resolution of assent was filed October 13, 1970, and recorded in Misc. Book 22, page 395, Baldwin County, Alabama Probate records, the Respondents stopped up or obstructed the Zundel's Street and this action was brought for the purpose of having them remove the obstruction, and to set aside the declaration of vacation;
Exhibit 1.
'Dated at Bay Minette, Alabama, this the 24th day of May, 1971.
The record shows that the street was vacated by the Baldwin County Commission under the provisions of Art. 2, § 32, Tit. 56 of the Code of 1940, which section is now set forth (the emphasis being ours):
This brings us to the legal principles involved in the determination of this cause. We pause to add that insofar as we have been able to ascertain, no similar factual situation has heretofore been presented to this court. The 4th Edition of 'Roads and Streets' by Elliott, whose work is often quoted by this court, begins Chapter XLVIII with this statement:
"Once a highway always a highway', is an old maxim of the common law to which we have often referred, and so far as concerns the rights of abutters, or others occupying a similar position, who have lawfully and in good faith invested money or obtained property interests in the just expectations of the continued existence of the highway, the maxim still holds good. Not even the legislature can take away such rights without compensation. Such, at least, is the rule which seems to us to be supported by the better reason and the weight of authority, although there is much apparent conflict as to the doctrine when applied to the vacation of highways.'
Elliott further states on page 1678:
We quote the above not because all of it is necessarily applicable to this case, but rather to show that the vacating of dedicated streets is not lightly to be viewed when it deprives others, and especially abutting land owners, of their use.
A corollary rule of law, and one recently stated in the case of Markstein v. City of Birmingham, 286 Ala. 551, 243 So.2d 661, held:
'We hold that where a street is partially vacated or obstructed, with no portion of the vacated or obstructed part abutting the land of the owner claiming damages on account of such vacation or obstruction, the owner is not entitled to damages if, despite the vacation or obstruction, he has reasonable access over the street abutting his land to the general street or highway system.'
In the present case, however, we are not dealing with damages, for none are sought, but with two aspects of § 32, Tit. 56, of our Code. Nor are we here dealing with a vacation of a street initiated by public authority to better serve the public interest where the rule of public necessity must override private convenience, but on the contrary we deal with a statutory provision whereby private interests may under prescribed circumstances deprive others of the use of a portion of an existing street in order to further the personal desires of such private interests. Such a statute should be strictly construed so that it not be an agency for oppression or...
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