Sam Raine Const. Co., Inc. v. Lakeview Estates, Inc.

Decision Date18 September 1981
PartiesSAM RAINE CONSTRUCTION COMPANY, INC. v. LAKEVIEW ESTATES, INC., et al. 80-13.
CourtAlabama Supreme Court

William M. Acker, Jr., and Carleton P. Ketchum, Jr., of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellant.

James B. Kierce, Jr., of Stone, Patton & Kierce and Norman K. Brown, Bessemer, for appellees.

MADDOX, Justice.

This is an appeal by plaintiff Sam Raine Construction Company, Inc., (Raine) from a partial directed verdict, jury verdict and judgment thereon rendered April 29, 1980, by the Circuit Court of Jefferson County, Bessemer Division, in favor of the defendants Lakeview Estates, Inc., Gary F. Looney, Ronald Keel, Claudine Keel and D. L. Torbert. This Court previously reviewed the case on the propriety of a summary judgment rendered by the trial court in favor of Lakeview Estates, Inc. (hereinafter referred to as Lakeview). Sam Raine Construction Company, Inc. v. Lakeview Estates, Inc., 366 So.2d 1107 (Ala.1979). On January 26, 1979, we reversed the summary judgment upon determining that there existed genuine issues of material fact which merited jury attention. At trial, the issue of prescription was resolved in favor of defendant Lakeview by the jury and the trial court directed a verdict for defendant on the issue of dedication. Plaintiff appeals from the directed verdict and from the court's sustaining defendant's objections to the admission of several exhibits. These exhibits sought to be introduced by the plaintiff were certain survey maps, deeds, and letters. We find that the trial court erred in directing a verdict for defendants in light of the evidence presented, and also erred in failing to admit certain evidence presented by the plaintiffs.

On September 21, 1977, Raine filed suit against Lakeview seeking damages and injunctive relief for Lakeview's obstruction of Jefferson County Road 4087, also known as Martin Lake Road. Raine alleged that because of prescriptive use, the road is a public one while Lakeview contended that it is a private road serving the residents of the subdivision Lakeview developed. The road runs along the boundary of Lakeview Estates and a parcel of land owned by Raine.

Raine alleged that Lakeview obstructed its use of the road by placing a cattle gate across it and stationing an armed guard at the gate. The Court enjoined Raine from using the road to prevent further physical violence between the parties. As a result of the injunction, Raine's construction equipment was stranded until a new road was cut by which to remove the equipment. Raine alleges that before a second road was cut, a $58,000 bulldozer was mysteriously destroyed.

On March 29, 1978, defendant Lakeview filed its motion for summary judgment and Raine filed a similar motion on May 9, 1978. On May 15, 1978, the trial court granted summary judgment in favor of Lakeview and dismissed the case. On appeal, this Court affirmed the order granting a preliminary injunction in favor of Lakeview, but reversed and remanded the summary judgment. Sam Raine Construction Company, Inc., v. Lakeview Estates, Inc., supra.

On November 15, 1979, Raine further amended its complaint and claimed dedication of the road to public use, because of the maintenance of the road by Jefferson County and the installation of a water main alongside the road by the Warrior River Water and Fire Protection Authority. In essence, Raine claimed that Lakeview was estopped to deny that the road was public.

The case was tried before a jury on April 21-25, 1980, upon the plaintiff's theories that the road had become public by (1) dedication and (2) prescription. The trial court granted a directed verdict in favor of Lakeview as to all aspects of the case except prescription. Upon the issue of whether Raine had a prescriptive right to use the road, the jury found in its answers to special interrogatories and in its verdict that there was no public road within the boundaries of Lakeview Estates. Plaintiff Raine filed a motion for a new trial which was denied. Raine appeals from the judgment, the directed verdict, and the denial of a new trial.

I

The critical legal question presented by this appeal involves the question of whether there was a dedication of the subject road by estoppel or by implication.

"A public way is established in either one of three ways: (1) by a regular proceeding for that purpose, or (2) by a dedication as such by the owner of the land the way crosses, with acceptance by the proper authorities, or (3) the way is generally used by the public for twenty years." Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972).

Raine does not contend that the public nature of the road which is the subject of this controversy was established by a proceeding before the county commission. And even though Raine contended that the road had become a public one by reason of prescriptive use, the jury found against Raine on that issue. In view of this fact, the only remaining question is whether or not there was evidence to support Raine's claim that the road had been dedicated to the public.

The Alabama law on the dedication of a public way is succinctly stated in Hall v. Polk, 363 So.2d 300 (Ala.1978):

Hall contends that the thirty-foot strip of property was not sufficiently dedicated as a public road. In Alabama, dedication of a public way may be accomplished by a statutory proceeding or, common law dedication. Witherall v. Strane, 265 Ala. 218, 90 So.2d 251 (1956). A common law dedication consists of acts indicative of the intent of the owner to dedicate property to a public use and acceptance by the public. Trustees of Howard College v. McNabb, 288 Ala. 564, 263 So.2d 664 (1972); Moragne v. City of Gadsden, 170 Ala. 124, 54 So. 518 (1911); Smith v. City of Dothan, 211 Ala. 338, 100 So. 501 (1924); Manning v. House, 211 Ala. 570, 100 So. 772 (1924); Still v. Lovelady, 218 Ala. 19, 117 So. 481 (1928). The owner must unequivocally intend to create a public right exclusive of his own. O'Rorke v. City of Homewood, 286 Ala. 99, 237 So.2d 487 (1970). Further, intent to dedicate may be shown by a deed to an individual where the owner declares part of his land reserved to a public use. Davidson v. City of Birmingham, 212 Ala. 123, 101 So. 878 (1924).

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, and its application, were aptly stated in Riley v. Buchanan, 116 Ky. 625, 76 S.W. 527 (1903):

If, however, there is not an express dedication, but the owner suffers the public to use the passway, knowing it is claiming it as a matter of right, the law presumes a dedication to the public, and presumes the dedicator's intention to be in accord with the public's use. This does not depend upon whether there has in fact been an actual dedication to the public, but it is founded upon the principles of estoppel in pais. If the real owner suffer the public generally to so use his land as a passway, under a notorious claim of right, for a great length of time, whereby others may have been induced to buy property in that vicinity relying upon the apparent right of the public to use this passway, and by which the purchase price of their lands may have been affected, it is unfair that the owner should be permitted to gainsay the truth of it.

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).

We now consider, in view of the principles of law above-stated regarding the law of dedication, whether there was a scintilla of evidence to support Raine's theory of a common law dedication or dedication by estoppel or by implication.

The testimony was undisputed that the county had done maintenance work on the road in prior years. While county maintenance is not essential to the public status of a road, it is strong evidence that a road is a public one. Davis v. Linden, 340 So.2d 775 (Ala.1976). In Carter v. Walker, 186 Ala. 140, 65 So. 170 (1914), the Court held:

The establishment of a highway by prescription depends upon its continuous adverse use by the general public who have occasion to use it; and specific recognition and care of such a road by county or municipal authorities is not essential to its public character and status, although such official recognition and care would of course be strong evidence thereof.-37 Cyc. 29 (III), and the numerous authorities cited. See, also, for general definition, Harper v. State, 109 Ala. 66, 19 South. 901; Lewman v. Andrews, 129 Ala. 170, 29 South. 692; Dunn v. Gunn, 149 Ala. 583, 42 South. 686. (Emphasis added.)

There was also evidence that Lakeview did not pay for the public water system that was installed, that no one had ever been stopped from freely traveling Martin Lake Road, at least until Raine began to develop its land; and that the general public was never aware of any sign posted which declared that the road was a private one.

The evidence we have set out, and which was admitted, was sufficient to prevent the grant of a directed verdict on the...

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    ...to dedication based on the owner's conduct as discussed in Part I.A. However, Ritchey quoted from Sam Raine Construction Co. v. Lakeview Estates, Inc. , 407 So.2d 542 (Ala. 1981), which addresses these issues in more detail. Sam Raine considered whether there was sufficient evidence to reac......
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