Moore v. Johnston

• Decision Date: 03 May 1889
• Parties: MOORE v. JOHNSTON.
• Court: Alabama Supreme Court

6 So. 50

87 Ala. 220

MOORE v. JOHNSTON.

Supreme Court of Alabama

May 3, 1889

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

W M. Brooks and E. W. Pettus, for appellant.

Ward & Head, for appellee.

SOMERVILLE J.

The action is one brought by the appellant, Moore, against the appellee, Johnston, for alleged breach of a covenant of seisin contained in a deed of land. The land sold the plaintiff by the defendant is "the north-easterly portion of the block of land lying between Twenty-First street and Twenty-Second street, bounded on the east by said Twenty-Second street, and on the north by Avenue G, fronting north on said avenue three hundred and forty (340) feet, and extending back perpendicularly to Avenue H, of the uniform width one hundred and ninety feet, to an alley." According to the plaintiff's contention, the defendant has sold him 40 feet of land on the west side of the purchased lot to which he had no title, and which was owned by one Mrs. Bustin, and in her adverse possession at the time of the sale. The defendant contends that the 40 feet sold lay on the east side, and extended to the center of Twenty-Second street, as originally marked on the map of the Elyton Land Company. This so-called "street" was outside of the corporate limits of Birmingham, was not opened or used, being mere woodland, and was the property of the land company. The deed from this company to Bustin, and from Bustin to Johnston, conveyed to the center of the street. A fence had been built inclosing this half of the so-called "street," so as to make it only 40, instead of 80 feet wide at this point on paper, where it alone existed. The only issue is whether the fee in this 40 feet was conveyed by the deed, or whether the intention of the parties was to sell on the one hand and buy on the other the 40 feet on the west side, belonging to Mrs. Bustin. The evidence, in our opinion supports the view that the Elyton Land Company by selling to the center of Twenty-Second street had narrowed this street at this point so as to reduce it to 40 feet. There can be no valid and complete dedication without an acceptance by the public, and it is not pretended that there was any acceptance in this case by use or otherwise. It is true that the owner may often be estopped to deny a dedication, where he maps out his lands and sells them with reference to a plat, describing them by streets, alleys, and blocks. But the plaintiff here visited the premises, and saw the land as inclosed by a fence. The contracting parties thus treated this fence as constituting the western boundary line of the street and the eastern boundary line of the lot. The plaintiff went into possession of this piece of land, which contained 340 feet, or all in quantity he claimed to have purchased.

There may possibly be purchasers of lots who could successfully challenge the right of the Elyton Land Company to lessen the dimensions of this street; but the plaintiff is in no condition to do so, being himself the purchaser and occupant of this portion of the narrowed street. The plaintiff moreover, in any event, is the owner of the fee to the center of Twenty-Second street, which he...