Reed v. City of Birmingham

• Decision Date: 29 April 1891
• Citation: 9 So. 161,92 Ala. 339
• Parties: REED v. MAYOR, ETC., OF THE CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

9 So. 161

92 Ala. 339

REED v. MAYOR, ETC., OF THE CITY OF BIRMINGHAM.

Supreme Court of Alabama

April 29, 1891

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

Upon the submission of the case on demurrer the court overruled the demurrers, and the defendant now brings this appeal, and assigns this decree of the chancellor as error.

R. H Pearson, for appellant.

Cabaniss & Weakley, for appellee.

STONE C.J.

In 1871 the proprietors of the land on which the city of Birmingham stands had a survey made, dividing the land into blocks lots, streets, and alleys, for the purpose of selling the lots, and that a city should be built thereon. The owners of the land, projectors of the city, were known as the Elyton Land Company, a private corporation. The site was the prospective crossing of the two great railroads, the South &amp North and the Alabama & Chattanooga, then in process of construction. Before the survey was made, the lines of those two roads were established. They run through a considerable part of the city on parallel tracks, their bearing being from north-east to south-west. The blocks of the survey were and are bounded on all sides by streets crossing each other at right angles, those running parallel with the railroad tracks being called avenues, and those crossing them being called streets. All the streets and avenues were designated by numbers; the streets from 1 to 39, extending from west to east. The avenues were numbered in two series, each extending from the railroad track outward. Those on the north or north-west side of the railroad, from 1 to 18 in number, were and are known as avenues north. Those on the south or south-east side, extending from 1 to 15, were called avenues south. Each of the blocks of the survey was bisected by an alley-way running parallel with the avenues. Before the lots were offered for sale a careful plat of the survey was made, which fully set forth the location and course of the railroad tracks, the various streets, avenues, and alleys, and the lots into which the lands were divided; and the names and numbers of the streets were distinctly and legibly marked on the plat or map. Any one examining the plat could not be misled as to the streets, avenues, blocks, alleys, or lots. The general width of the streets and avenues was 80 feet. At the time the sale was made, after noticed, a copy of the plat or map described above was kept suspended in the office of the Elyton Land Company for public inspection. Part of the territory or lots so surveyed and laid off were incorporated into the town or city of Birmingham in 1871. Its southern or south-eastern limit on boundary was so defined as to touch, but not to include, Avenue 7 south. In 1873 the charter of incorporation was amended, but the amendment did not change the southern or south-eastern boundary. In 1881 there was a further amendment of the act of incorporation, and an enlargement, so as to include another line of blocks, and extend to Avenue 8 south. This includes, and for the first time included, within the corporate limits the strip of land, 40 feet in width, which is the subject of the present suit. It is the southern or south-eastern half of Avenue 7 south, sometimes called Avenue G, extending from Nineteenth to Twentieth street. What we have stated and may hereafter state as facts we derive from the averments of the bill and from the plat of survey of the city, then unbuilt, which has been sent up for our inspection.

In March, 1875, the Elyton Land Company, through its president, contracted with appellant, Reed, to sell to him a lot of ground within the limits of their survey, received half the purchase money in cash, and gave him bond to make him title on the payment of the balance of the purchase money, fixed at two years after the date of the purchase. In October, 1879, a deed was made to Reed, pursuant to the terms of the bond. The property sold and conveyed is described in the deed as "beginning at the intersection of center of Twentieth street and Seventh avenue south; thence westward along said avenue one thousand feet to the center of Eighteenth street; thence south ward along said street four hundred and eighty-four feet; thence eastward, at right angles thereto, one thousand feet; thence northward along Twentieth street for hundred and eighty feet, to the beginning." Interpreting this language in the light of the plat or map, it will be seen the description takes in one-half of each of the three streets which bound it north, east, and west, viz., Avenue 7 south, and Eighteenth and Twentieth streets. It goes further; it includes the entire area of Nineteenth street between Seventh and Eighth avenues south, the alley-ways across the two blocks, extending from Eighteenth to Twentieth streets, and probably the north half of Avenue 8 south to the extent of one thousand feet. Soon after Reed made the purchase he took possession, and inclosed a part of his purchase with a fence, and has kept up the inclosure ever since. He inclosed the south half of Avenue 7 south, and thus inclosed an occupied up to the line his deed called for. That was about 15 years before the present suit was commenced, and during all that time he occupied the lot as a residence, and has built an outhouse on that part of the inclosure which is represented on the plat or map as part of Avenue 7 south. When the survey was made, and when Reed purchased, that portion of the land in which the lots in controversy are embraced was an old field, and the streets had not been opened or worked as streets. They were shown only on the surveyor's plat, and it is not shown whether at the time of the purchase any other lots had been sold in that neighborhood. When this bill was filed the neighborhood had been settled up, and it is claimed that Avenue 7 south had become a necessary highway or thoroughfare for the public convenience. Matters remained thus until the city authorities took action by attempting to have removed from Avenue 7 south, as originally surveyed, the said obstructions placed there by Reed. They first notified him to do so; and, he failing to do it, the present bill was filed. The bill is by the mayor and aldermen of the city of Birmingham, and seeks to have the said obstructions removed from the street as a public nuisance. It is skillfully drawn, and presents the appearance of having been framed with great candor. No attempt at concealment is apparent. On the contrary, it appears to have been the intention of the pleader to present all the facts, as well those which apparently oppose the right of the city to maintain this suit as those in its favor. This is the appearance the bill presents when considered by itself; but we cannot know what the answer may disclose. It cannot be questioned that the bill contains equity, unless there is merit in the objections, to be considered presently. Chancery has unquestioned jurisdiction, at the suit of the city government, to restrain the perpetration or continuance of a nuisance in its public streets, and permanent obstruction of a public street is a public nuisance. State v. Mayor, etc., 5 Port. (Ala.) 279; City of Demopolis v. Webb, 87 Ala. 659, 6 South. Rep. 408; Mayor, etc., v. Banking Co., 12 N. J. Eq. 547; Sims v. Chattanooga, 2 Lea, 694; Railway Co. v. Witherow, 82 Ala. 190, 3 South. Rep. 23, and authorities cited; 1 High, Inj. § 816; 3 Pom. Eq. Jur. § 1349; Cross v. Mayor, etc., 18 N. J. Eq. 305.

The defendant interposed many grounds of demurrer, all of which were overruled by the chancellor. From that ruling the present appeal is prosecuted. We will consider only two questions raised by the demurrers. It is objected by the defendant that, according to the averments of the bill, there never was a complete dedication of the street in controversy that the survey and plat were but an offer of dedication, which did not and could not become an accomplished fact until acceptance was shown; that till acceptance it remained a revocable offer; and that the sale to Reed, before acceptance by the public, of part of the land designated as a street, was revocation pro tanto by the Elyton Land Company, and vested a title in the purchaser freed from any claim the city could assert. One expression in Moore v. Johnston, 87 Ala. 220, 6 South. Rep. 50, is mainly relied on as supporting the contention that the offer to dedicate to the public Avenue 7 south was revoked by the sale and conveyance to Reed before there was any acceptance of the offer, express or implied. The subject of controversy in that case is not perceived to be distinguishable from the one presented in this. The lots are distant from each other only two blocks; each fronts on Avenue 7 south, or Avenue G, as it is sometimes called; and each, when the several lots were sold, was outside of the city limits, as then incorporated. The expression is that "the evidence, in our opinion, supports the view that the Elyton Land Company, by selling to the center of Twenty-Second street, had narrowed the street at this point, so as to reduce it to forty 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." The report of that case does not inform us what was the evidence to which the court referred in the case from which we have quoted. We, of course, presume it was legal evidence. There could be no legal evidence of the intention of the contracting parties, other than that shown by the writings and the attendant facts. Chambers v. Ringstaff, 69 Ala. 140. The evidence in Moore v. Johnston on the question of intention must have been substantially the same as that shown in this record, with the following exception: Reed, the appellant in this...