Rudolph v. City of Birmingham

Decision Date03 June 1914
Docket Number763
PartiesRUDOLPH v. CITY OF BIRMINGHAM.
CourtAlabama Supreme Court

Rehearing Denied July 2, 1914

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Suit by the City of Birmingham against Z.T. Rudolph. From a decree for complainant, defendant appeals. Affirmed.

Henry Upson Sims, of Birmingham, for appellant.

Romaine Boyd and M.M. Ullman, both of Birmingham, for appellee.

SAYRE J.

Originally the bill in this case was filed by the city of Elyton against appellant, and sought a decree requiring appellant to remove certain obstructions alleged to have been maintained by him in a public street of the complaining municipality known as the "Georgia Road." Some objections to the bill were disposed of in Rudolph v. Elyton, 161 Ala. 525 50 So. 80. Pending a final decree the city of Elyton became a part of the city of Birmingham, after which the city of Birmingham moved the court to allow the cause to proceed in its name. It was so ordered, and appellant assigns the ruling for error. Ordinarily, if the entire interest of a sole complainant passes into another by assignment or otherwise the benefit of the proceeding, when the assignee claims by a title that may be litigated, must be sought by an original bill in the nature of a supplemental bill or bill of revivor. Sims' Chan. Pr. § 617. But the Municipal Code Law provided differently for cases of the kind here shown. Dealing with the subject of the annexation and merger of contiguous municipalities, the Code provides that:

"All suits pending in any court on behalf of any city or town so absorbed, or whose government is extinguished, may be prosecuted or defended in the name of the city or town whose boundary lines shall be so altered or rearranged." Code, § 1159.

This provision contemplates the uninterrupted prosecution of pending suits, and justified, required, the course adopted by the chancery court.

For more than 50 years the Georgia Road has been used by the public as a highway. We have no record of how or by whom or what authority it was originally laid out, but it may be inferred that it was located with a view to its practical coincidence with the township and section line. Whether it was intended to lie on both sides of that line, or wholly to the north of it, is uncertain, and, in our view of the case, immaterial, though the parties seem to attach some importance to the fact. That there has been such a road during this period is not denied. The difference between the parties relates to its northern boundary line. Prior to 1907, when it was incorporated into the city of Elyton, this road was worked and kept in repair by the county authorities, but, like many roads through rural districts, it was of irregular width and at places its boundary lines were illy defined. As some of the witnesses state the facts, the land along the road in that neighborhood was not very valuable, and was indiscriminately used by the public for convenience in passing and traveling, and no particular lines or limits were made except where it was cultivated. This much, however, is certain, that defendant's property right is limited on the south by the northern boundary of the road, wherever that of right must be located, and that for many years prior to 1889 a line between the road and the property now owned by defendant was quite distinctly located and defined as being at the place where it has been located by the chancellor's decree in this cause. As now defined by fences and other structures erected by property owners on either side, and as it has been used by the public since 1889, this road is more than 30 feet wide, and is now substantially as it was when incorporated into the city of Elyton.

Complainant (appellee) contends, as for one maintainable aspect of its case, that the evidence tending to show a long-continued adverse user by the public prior to 1889 is sufficient to establish as of that period an original dedication or prescriptive right in the public to a road with its northern limit at the point in question as it was then used and defined. This may be so, but, considering the facts already stated in connection with evidence to which we shall presently come, we prefer to place our conclusion upon a more specific act of dedication and its acceptance by the public.

In 1885 Margaret Walker owned the land to the north of the township or section line along which the Georgia Road ran. April 24, 1889, she conveyed to Elgin M. Thweatt land described as follows:

"Commencing at a point on the south side of 2nd avenue north one hundred seventy five (175) feet southwardly from the southwest corner of the intersection of 7th street and 2nd avenue north, thence southwardly and parallel with 7th street to the north side of the Georgia Road, thence westwardly along the north side of said Georgia Road to where the south side of 2nd avenue, north, intersects with the north side of said Georgia Road, thence eastwardly along the south side of 2nd avenue, north, to the point of beginning."

By a like description Thweatt conveyed to J.E. Pauley May 11, 1901, and Pauley to defendant January 19, 1903. It is thus to be seen that defendant and his predecessors in title mentioned above have irrevocably recognized the Georgia Road as a public highway, and the only point of difficulty lies in the definite location of the northern limit of the road where it passes below or in front of defendant's property.

In 1889, and for many years before, the northern boundary of the roadway in actual use, where it passed along the front of the property now owned by defendant, and where also it approached a fork in the road a little to the west, veered to the north, away from the township or section line, and was apparently defined by a worm rail fence in the corners of which trees had grown to considerable size. Just outside of this fence, i.e., between the fence and the traveled roadway, there was a declivity of two or three feet, where the roots of the trees had been exposed by the washing and wearing away of the traveled surface of the road. Ordinarily passing vehicles went within 10 feet of the trees, unless the road was muddy, and then they went closer. Thweatt, during the time he owned the property, during the first year of his ownership probably, built the fence and the small houses complainant would now have removed, thus extending his inclosure some 15 or 20 feet to the south of the line marked by the worm fence and the trees. It is our opinion that in so doing he transgressed the limits of the property right he had acquired, and encroached upon a highway that had been dedicated to the public by his immediate predecessor in title.

The parties have agreed that defendant is "the owner of the land commonly known as lots 6, 7, and 8, and the W. 1/2 of lot 5, in block 352, according to the map, plan, and survey of certain land situated in the S.E. 1/4 of the S.W. 1/4 of section 35, township 17 south, range 3 west, and known as the Margaret Walker addition to Birmingham, a description of said land as same was conveyed to respondent and to his predecessors in title, being as follows," to wit, the description used in the deeds to Thweatt and his successors. This agreement, and the description by which the property in question has passed from Margaret Walker down to defendant, make it entirely clear that defendant holds a title which depends for proof upon a map, plan, and survey of that part of S.E. 1/4 of S.W. 1/4 of section 35 in which his property lies, showing the Georgia Road and other streets and avenues. In 1891 such a map and plat was made, acknowledged, and adopted by Margaret Walker, and recorded in the office of the judge of probate. With and as a part of this map was recorded a certificate as follows:

"I hereby certify that the accompanying map is a correct and true plat and map according to a resurvey and a measurement made by me during the month of November, 1886, of the property of Miss Margaret Walker as it was then laid off, many of the lots having been sold according to said plan, as herein on said plat described, said survey being a subdivision into lots, streets, avenues, alleys and blocks as appear from said names of streets and avenues and measurings of same appearing thereon. Given under my hand this May 6, 1891. Jas. C. Long, Civil Engineer."

In 1902, a similar map, known as the School Map of Margaret Walker's addition to Birmingham, was made, adopted, and recorded by R.H. Hagood, administrator of Margaret Walker then deceased. These maps or plats, in and of themselves, did not circumscribe defendant's property by their implied dedication of the public streets and highways thereby shown, because Thweatt, who stood in the chain of title between Margaret Walker and defendant, had purchased before their recordation. However, they showed the Georgia Road, and that road, as it is there laid out, along with Second avenue and Seventh street, incloses a triangular space like unto the space inclosed by these ways as they now appear on the ground. The map of 1889, drawn to a larger scale than the map of 1891, shows a subdivision of the said triangular...

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