Ritchey v. Dalgo

• Decision Date: 29 May 1987
• Parties: Albert E. RITCHEY, Sr., as Trustee of the A.E.R. Family Trust, et al. v. Larry DALGO, et al. Albert E. RITCHEY, Sr., as Trustee of the A.E.R. Family Trust, et al. v. Claude E. HARRIS, et al. 85-196, 85-197.
• Court: Alabama Supreme Court

Page 808

514 So.2d 808

Albert E. RITCHEY, Sr., as Trustee of the A.E.R. Family Trust, et al. v. Larry DALGO, et al.

Albert E. RITCHEY, Sr., as Trustee of the A.E.R. Family Trust, et al. v. Claude E. HARRIS, et al.

85-196, 85-197.

Supreme Court of Alabama.

May 29, 1987.

Rehearing Denied Sept. 4, 1987.

Robert A. Wills and Byron A. Lassiter, Bay Minette, for appellants.

T.M. Brantley, for appellees in Case 85-196.

Daniel G. Blackburn and Samuel N. Crosby of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellees in Case 85-197.

JONES, Justice.

This is an appeal from a declaratory judgment entered in favor of the plaintiffs in which the trial court decreed that certain contested tracts of land "belong to the public." We affirm.

Three separate property-dispute class actions for declaratory judgments, which were consolidated for trial, form the basis for this appeal. The plaintiffs are the owners of lots in three subdivisions on the Fort Morgan Peninsula in Baldwin County. The defendants are the successors in interest to Gulf Beach Land and Development Company (Gulf Beach), the original developer of the three subdivisions.

The plaintiffs purchased lots in the Ponce de Leon Court, Bernard Court, and Buchanan Court subdivisions from Gulf Beach through Gulf Beach's sales agents. Gulf Beach developed the property and sold the lots according to the recorded plat of each subdivision. The plaintiffs began this litigation when they learned that the defendants claimed to own certain areas of the three subdivisions in fee, as the successors in interest to Gulf Beach, and planned to develop the disputed property areas and deny the plaintiffs the use thereof.

The Ponce de Leon Court property owners alleged that Gulf Beach sold the lots in that subdivision with reference to the recorded subdivision plat and that an agent of Gulf Beach represented to the plaintiffs that the lots identified on the plat as 9, 32, 50, 64, and 86 were "access lots" to the Gulf of Mexico for the benefit of Ponce de Leon property owners. The filing of the plat, the sale of the lots in reference to the plat, the representations of Gulf Beach's agent as to the nature of the five access lots, and the purchase of the lots in reliance on all of these factors, claim the plaintiffs, constituted a dedication of the five lots to the use of the owners of lots within Ponce de Leon Court. These same plaintiffs also allege that they have continuously and adversely used these five lots for access to the Gulf of Mexico--either as Ponce de Leon Court property owners or as members of the general public.

The owners of lots within the Bernard Court and Buchanan Court subdivisions claimed that Gulf Beach sold lots to them with reference to the recorded subdivision plats and that Gulf Beach's agent informed these plaintiffs that the land between the front property lines of Bernard Court and Buchanan Court and the Gulf of Mexico was a "community beach." The plaintiffs have both paid taxes on this beach area, according to each lot owner's proportionate interest in the subdivision, and used the property as a community beach for as long as they have owned their lots.

The declaratory judgment action filed by the Ponce de Leon Court lot owners requested that the court find that the five access lots were dedicated to the use of the Ponce de Leon Court lot owners for access to the Gulf of Mexico or, in the alternative, that the lots were dedicated to public use either by the filing of the subdivision plat or by the open, notorious, visible, hostile, undisputed, adverse, and continuous use of the lots by the public for access to the beach for over 20 years.

The Bernard Court and Buchanan Court plaintiffs' complaints asked the court to declare that all of the property between the front property lines of the two subdivisions and the Gulf of Mexico is a community beach for the use and enjoyment of the Bernard Court and Buchanan Court lot owners. These complaints were later amended to add an alternative prayer for relief; that is, a declaration that if the land between the subdivisions and the Gulf is not a community beach, then it was dedicated to the public by the recording of the subdivision plats and the sale of lots with reference to those plats.

The defendants denied that the "access lots" and the "community beach" areas were dedicated either to the plaintiffs or to the public, and alleged the affirmative defenses of the Statute of Frauds and the doctrine of merger. The defendants also contend that the plaintiffs' claims are barred as to these defendants because the defendants are bona fide purchasers for value of the disputed property.

The cases were tried without a jury and the trial court entered an order in which it held that the contested property in both cases belonged to the public. The trial court denied the defendants' post-trial motions requesting that the court set out its findings of fact and conclusions of law in support of its order. These appeals followed.

A brief overview of the law of "dedication" in Alabama will be helpful in understanding the disposition of this appeal. "A 'dedication' is a donation or appropriation of property to the public use by the owner." City of Fairfield v. Jemison, 283 Ala. 462, 464, 218 So.2d 273, 275 (1969). The public is a necessary party to any dedication, there being "no such thing as a dedication to an individual." Garland v. Clark, 264 Ala. 402, 405, 88 So.2d 367, 370 (1956). In Alabama a valid dedication may be accomplished by two methods. A "statutory dedication" is made by strictly following the steps set out in Code 1975, § 35-2-51(b). "Common law dedication," which may be either express or implied, is accomplished when there have been acts which evidence an unequivocal intent by the owner to dedicate the property to a public use and an acceptance by the members of the public of the property for that public use. Sam Raine Construction Co. v. Lakeview Estates, Inc., 407 So.2d 542, 544 (Ala.1981) (and the authorities cited therein). See, also, Cottage Hill Land Corp. v. City of Mobile, 443 So.2d 1201 (Ala.1983).

The existence of the vital factor of the owner's intent must be ascertained by the owner's acts and not from any hidden purpose in the owner's mind. Town of Leeds v. Sharp, 218 Ala. 403, 118 So. 572 (1928). It is the conduct of the owner that determines his intent to dedicate property to a public use. Town of Leeds, supra. See, also, 26 C.J.S. Dedication § 11, p. 418 (1956).

Acceptance of a dedication, the second element necessary to a common law dedication of land, "may be shown by long public use, or by acts, either formal or otherwise, of corporate or other public officers adopting the property for the public's use." Cottage Hill Land Corp., supra, at 1203. It is a settled rule that a dedication has not been made until there has been an acceptance of the "offer" to dedicate. Smith v. City of Dothan, 211 Ala. 338, 100 So. 501 (1924). Indeed, even though a defective attempted statutory dedication may operate as a common law dedication, the essential elements of intent and acceptance must still be present to establish a valid common law dedication. 26 C.J.S. Dedication § 4, p. 403 (1956).

It is also true that "formal acts" are not necessary to establish the acceptance of an offered dedication. Effective acceptance may be shown by "general user," not for any particular length of time, but long enough from which the factfinder may infer that the public is acting on a "theory of public right" which is the result of the owner's acts of dedication. Trammell v. Bradford, 198 Ala. 513, 516, 73 So. 894, 896 (1917).

"It is well established that common law dedication may be either expressed or implied. An implied dedication arises when the acts or conduct of the owner are deemed to intend a dedication to the public use, such an implication being founded on the doctrine of estoppel in pais rather than by estoppel in grant. 26 C.J.S. Dedication § 15, p. 427 (1956). Once the public accepts the dedication by its use of the land, the owner will be estopped to deny the dedication without a clear showing that his acts were erroneously construed as intending to dedicate.

"...

"The doctrine of estoppel as it applies to dedication of lands was conceived out of the necessity for precluding the owner from resuming any use of the dedicated land inconsistent with established public use. The basis of the doctrine lies in the precept that 'to reclaim the land would be a violation of good faith to the public and to those who have acquired private property with a view to the enjoyment of the use contemplated by the dedication.' 23 Am.Jur.2d Dedication § 56, p. 50 (1965)." Sam Raine Const. Co., supra, at 544-45.

On appeal, the defendants claim that they own the disputed property in fee and that there was no dedication of the property to the public. We agree that there is nothing in the record to indicate any attempt at a statutory dedication of the five 50-foot lots in Ponce de Leon Court or of the beach areas adjoining Bernard Court and Buchanan Court. Indeed, all the parties agree that the recorded plats are ambiguous as to the dedication question posed by these lawsuits. We find, however, from a careful review of the record, that there was sufficient evidence of a common law dedication to sustain the trial court's order.

The plaintiffs purchased their lots in Ponce de Leon Court, Bernard Court, and Buchanan Court according to recorded plats of the subdivisions. The plaintiffs' deeds contain no language giving them any right to or interest in the two areas of contested property. The plaintiffs living in the Bernard Court and Buchanan Court subdivisions have paid taxes on the beach area since 1972; the defendants (and the defendants' predecessors), however, have paid the taxes on the Ponce de Leon Court "access lots."

W.P. Pickett was the real estate broker who sold most of the lots in Ponce de Leon Court...