Nashville, C. & St. L. Ry. Co. v. Hulgan

• Decision Date: 21 March 1929
• Docket Number: 7 Div. 837.
• Citation: 121 So. 62,219 Ala. 56
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. HULGAN.
• Court: Alabama Supreme Court

121 So. 62

219 Ala. 56

NASHVILLE, C. & ST. L. RY. CO. v. HULGAN.

7 Div. 837.

Supreme Court of Alabama

March 21, 1929

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Bill in equity by the Nashville, Chattanooga & St. Louis Railway Company against J. M. Hulgan, to enjoin the maintenance of obstructions in a public street. From a decree dismissing the bill, complainant appeals. Reversed and remanded.

Goodhue & Lusk, of Gadsden, for appellant.

W. J Boykin, of Gadsden, for appellee.

GARDNER J.

In 1887 one Miles A. Hughes owned and was in possession of certain real estate in Attalla, Ala., lying north of what was then known as the T. & C. Railroad (now the Nashville, Chattanooga & St. Louis Railway Company), and east of Seventh street also called Line street. Said Hughes had this property surveyed, divided into lots, and platted, with streets and avenues designated thereon. This plat was duly filed for record in the probate office of Etowah county, and certified by the surveyor and Hughes the owner. Among the streets designated on this map was Railroad avenue, which ran parallel with the railroad track referred to-the track being practically straight through the length of the property. Subsequent to the recording of said map Hughes sold and conveyed various lots in this subdivision by reference thereto.

"It is well settled by decisions of this court, that where a person plats land and lays off lots according to such plat and makes sale of one or more of such lots with reference thereto, he irrevocably dedicates the land designated thereon as streets and alleys, highways, squares and commons, to the public, for public uses." Roberts v. Matthews, 137 Ala. 523, 34 So. 624, 97 Am. St. Rep. 56; Webb v Demopolis, 95 Ala. 116, 13 So. 289, 21 L. R. A. 62; Stack v. Tenn. Land Co., 209 Ala. 449, 96 So. 355; City of Florence v. Florence Land Co., 204 Ala. 175, 85 So. 516; Town of Leeds v. Sharp (Ala. Sup.) 118 So. 572; East Birmingham Realty Co. v. Birmingham Mach. & Foundry Co., 160 Ala. 461, 49 So. 448.

Under the undisputed evidence, therefore, the property designated on the map as Railroad avenue became irrevocably dedicated to the public for public uses.

In January, 1921, J. M. Hulgan purchased from the successors in title to Miles A. Hughes a triangular strip of land located in the space designated on the map as Railroad avenue at or near the intersection of said avenue with Line street, and running near to, and parallel with, the bed of the railroad, and erected thereon a dwelling, storehouse, garage, and fence. In November, 1921, the Nashville, Chattanooga & St. Louis Railway Company filed this bill against said Hulgan, seeking the removal of these improvements as a public nuisance, and alleging peculiar and special injury suffered by complainant different from that suffered by the general public. Upon consideration of the cause for final decree on pleadings and proof, the chancellor denied relief and dismissed the bill. We think this was error.

"Public highways belong, from side to side and end to end, to the public. There is no such thing as a rightful, private, permanent use of a public highway. *** There is no right in any person to permanently appropriate to private use any part of a public street or sidewalk." First Nat. Bank v. Tyson, 144 Ala. 457, 39 So. 560.

It appears from the recorded plat that Railroad avenue extends for its southern boundary to the roadbed of complainant railroad. Such is the conclusion, we think, any layman would reach upon inspection of the map. If, however, expert evidence were required to this end, the civil engineers testifying upon the question are in accord that such is the southern boundary of this avenue as designated on the map. Railroad avenue has been improved by some character of pavement for a portion of its width, and respondent's improvements are not placed thereon, but near thereto, and it may be conceded these improvements do not in fact now interfere with traffic on the avenue. Upon this portion of the avenue telephone lines have been erected, and a drainage ditch is near the bed of the railroad. But the respondent's rights are not enhanced by any of these matters. This avenue has been irrevocably dedicated to the public use "from side to side and end to end," and defendant is without right to erect permanent improvements thereon. The extent of the use of the avenue by the public in no manner affects the question of its dedication. Webb v Demopolis...