Moragne v. City of Gadsden

• Decision Date: 10 January 1911
• Citation: 54 So. 518,170 Ala. 124
• Parties: MORAGNE v. CITY OF GADSDEN.
• Court: Alabama Supreme Court

54 So. 518

170 Ala. 124

MORAGNE v. CITY OF GADSDEN.

Supreme Court of Alabama

January 10, 1911

Appeal from Circuit Court, Etowah County; John W. Inzer, Judge.

Ejectment by Joe S. Moragne against the City of Gadsden. From a judgment for defendant, plaintiff appeals. Affirmed.

Culli &amp Martin, for appellant.

O. R Hood and M. C. Silvey, for appellee.

McCLELLAN J.

Dedication of land to public use consists in the intentional donation thereof by the owner to some public object or purpose, and the acceptance therefor by the public. "It may be done verbally or in writing, by a single act or series of acts, if clear and unequivocal, as indicating the owner's intention." Bessemer Land Co. v. Jenkins, 111 Ala. 135, 148, 18 So. 565, 568, 56 Am. St. Rep. 26; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Steele v. Sullivan, 70 Ala. 589. The intent of the owner is a vital factor in determining dedication vel non. East B'ham Realty Co. v. B'ham Machine & Foundry Co., 160 Ala. 461, 467, 49 So. 448. Acceptance by the public may be manifested, among other ways, by long and uninterrupted user without questioning. Author, supra. A presumption of dedication, even by express grant, will be indulged where the use for public purposes has been enjoyed continuously and without interruption and without objection for more than 20 years. Hoole & Paulin v. Attorney General, 22 Ala. 190; Rosser v. Dunn, 66 Ala. 89, 94; Steele v. Sullivan, supra; Lewman v. Andrews, 129 Ala. 170, 175, 29 So. 692; Smith v. Inge, 80 Ala. 283; N. O. & S. R. R. Co. v. Jones, 68 Ala. 48; Cochran v. Purser, 152 Ala. 354, 44 So. 579; 9 Ency. Law, pp. 66, 67; 13 Cyc. pp. 478, 479, stating this and divergent (in other states) views.

In Hoole & Paulin v. Attorney General, supra, it was said: "As a general rule, the mere fact of acquiescence on the part of the owner in the use and enjoyment of the way as a public road would not create the presumption of dedication, until the period of twenty years, without some clear and unequivocal act on the part of the owner, amounting to an explicit manifestation of his intention to make a permanent gift of the road to the public." (Italics supplied.) In Rosser v. Dunn this court said: "The testimony of plaintiff's witnesses tended to show there had been a way open to the public as a highway, and so used, for near or quite 50 years. If this user had existed for 20 years of continuous use, the presumption would arise that the road had been established by law, or that it was dedicated to the public by the owner of the soil." In a phase of the matter the bases of the implication--the presumption--are: First, that the user must have been in such manner as did not consist with a mere permissive (by the owner) enjoyment of the land by the public; and, second, the right of use must not have been contested or interrupted. Smith v. Inge, supra; Gage v. M. & O. R. R., 84 Ala. 224, 4 So. 415; Sultzner v. State, 43 Ala. 24, 30; Steele v. Sullivan, 70 Ala. 594, supra. In the last cited decision it was remarked: "It has been held on this principle (that in course of reiteration) that a user of 20 years will not raise a prescription, where it appears that the right had always been a subject of contention." Since the presumption arises out of user, as before stated, it is a necessary consequence that in respect of continuous, uninterrupted and unobjected to public user the alleged dedicator, or his successors in right, may rebut this basis of the presumption "by showing that the right of user was always contested, or constantly interrupted by the owner." Smith v. Inge, supra, at page 287 of 80 Ala.; Harper v. State, 109 Ala. 66, 19 So. 901. As appears, the several principles of law stated are settled in this state, have become rules of property, and recourse to the adjudication of learned courts elsewhere pertinent to the indicated inquiries presented by this appeal is not to be had.

The subject-matter of this litigation is a park or common in the city of Gadsden. Plaintiff's (appellant's) predecessor in asserted right was Joseph Hughes. He died in 1865. This plot of land, with much more, was conveyed by the United States in 1845 to one Rhea. In 1846 Rhea conveyed this, with other lands, to Joseph Hughes. Hughes was an early settler in Gadsden. This plot then lay between the town proper, as it progressed in material construction, and the public landing for Gadsden on the Coosa river. The plot sued for does not appear to run to the bluff above the river at that point, but is triangular in shape (if rightly pictured in mind). Across it from a very early date ran a road from the settlement toward the ferry near the landing as well as toward the landing; and somewhat later what was known as Broad or Railroad street was extended across this plot in the direction and for the public purposes indicated. No question of the rightfulness of the use of this way seems ever to have been made. No fence or other obstruction ever hindered or forbade access to the plot in question, other than that put there by the city in 1887, to which fact reference will be later made. Witnesses for the city deposed to acts by the public authorities of Gadsden, such as cleaning up and care taking of the place, from at least as far back as, if not much earlier than, the late 60's; and those witnesses also narrated acts of the public generally in respect of the land of which this angular plot is a part, such as its use for public occasions, speakings, and barbecues, and as the camping ground, hitching place, and wagon yard of travelers to or by Gadsden in the days when road and water travel and conveyance was the rule. These acts evince an unmistakable purpose and intent on the part of the public to claim and enjoy the exclusive use of those premises for public purposes. The uses as described by the witnesses for the city were entirely inconsistent with recognition of any mere permissive (by the owner) use of the land in controversy. It is inconceivable that the owner could have assumed in the light of the public acts in respect of this place enumerated in the evidence that such uses were made as upon his favor, and not against his rights. Nor could he have been ignorant of such acts so public and covering so great a period of time. In 1887 the city fenced this property. It seems to have done so as the result of general talk or rumors in the community, to the effect that the city had no right to or upon the premises. Twenty-two years elapsed between the date of the erection of the fence and the institution of this action. No demand or notice or act or other tangible questioning of the city's right to the use of the plot appears to have been ever made or given.

The successive owners do not appear to have ever assessed this plot for taxation. So far as the evidence shows, no inclosure of any kind ever marked the boundaries of the plot in whole or in part until 1887, when the city erected the fence. From 1846 to 1865, a period of 19 years approximately, Joseph Hughes lived in Gadsden, and no act of his is shown wherefrom it could be inferred...