Montabano v. City of Mountain Brook
| Decision Date | 13 January 1995 |
| Citation | 653 So.2d 947 |
| Parties | Mike MONTABANO v. The CITY OF MOUNTAIN BROOK, a Municipal Corporation. 1931542. |
| Court | Alabama Supreme Court |
James H. Faulkner, Pelham, for appellant.
Frank C. Galloway, Jr. and David B. Walston of Walston, Stabler, Wells, Anderson & Bains, Birmingham, for appellee.
Mike Montabano appeals from a summary judgment for the City of Mountain Brook in his action to quiet title to a certain parcel of real estate. Montabano claims under a chain of title stemming from a 1982 tax deed to his father (that 1982 tax deed was based on a 1979 tax sale). The City claims fee simple title by means of a statutory dedication that it claims occurred pursuant to Ala.Code 1975, § 35-2-50 and § 35-2-51. It contends that the property was dedicated to the City as a public park on May 11, 1961.
The undisputed facts are as follows: In 1961, Louise Bethune and Peggy McHenry (hereinafter referred to together as "the original owners") owned a tract of land in the City of Mountain Brook; within that tract was the particular parcel at issue here. 1 In February 1961, the original owners hired a registered surveyor to survey the property and prepare a subdivision map platted to the government survey. The surveyor certified the subdivision plat, and the original owners signed the plat and acknowledged the certification. The certified and acknowledged plat was approved by the City's Planning Commission. On May 11, 1961, the original owners recorded the certified, acknowledged, and approved subdivision plat in the office of the judge of probate of Jefferson County. On the recorded plat, the parcel at issue here is clearly marked "DEDICATED AS A PUBLIC PARK." After recording the subdivision plat, the original owners sold several of the lots in the new subdivision.
Despite the recordation of the plat, the Jefferson County tax assessor's office continued to assess the parcel in the original owners' names for ad valorem tax purposes. Because of this oversight, the probate judge held the 1979 tax sale, based on taxes the assessor's records indicated were due from the original owners. In 1982, Montabano's father received and recorded his tax deed to the property; it purported to convey to him "all right, title and interest" the original owners had held in the property. In 1991, he conveyed his interest to his daughter, and in 1993, his daughter conveyed her interest to her brother, Mike Montabano. In 1994, Montabano filed this quiet title action.
The dispositive issue on appeal is whether the property in question was properly dedicated to the City of Mountain Brook pursuant to § 35-2-50 and § 35-2-51.
The burden of proof regarding the dedication of property to the public lies with the party asserting the dedication, and the dedication must be demonstrated by affirmative evidence. Johnson v. Morris, 362 So.2d 209 (Ala.1978). The declaration and act of the owner concerning a dedication of land to the public must be unequivocal. Johnson, supra. In determining if there has been a proper dedication to the public, the map or plat is to be construed in its entirety. Johnson, supra.
Sections 35-2-50 and -51 provide the statutory mechanism for subdividing property in Alabama. Section 35-2-50 reads:
Section 35-2-51 reads:
To continue reading
Request your trial
-
Ex parte Sawyer
... ... So.2d 904 of objection to venue.'" 653 So.2d at 946 (quoting Ex parte City of Birmingham, 507 So.2d 471, 474 (Ala.1987)). The defendants argue that ... ...
-
City of Orange Beach v. Benjamin
...to this statute, "a statutory dedication is deemed to convey title in fee simple to the governing body." Montabano v. City of Mountain Brook, 653 So.2d 947, 949 (Ala.1995); Johnson v. Morris, 362 So.2d 209, 211 (Ala.1978); Shelby Contracting Co. v. Pizitz, 285 Ala. 301, 309, 231 So.2d 743, ......
-
Chalkley v. Tuscaloosa County Comm'n, 1070767.
...both within and without the subdivision,” constituted a dedication of property for public use. See, e.g., Montabano v. City of Mountain Brook, 653 So.2d 947, 949 (Ala.1995) (noting that “[t]he recording of a plat or map ... constitutes a valid dedication to the public of all public places d......
- Smith v. Carter (Ex parte Carter)