Sims v. City of Birmingham

• Decision Date: 19 October 1950
• Docket Number: 6 Div. 771
• Citation: 254 Ala. 598,49 So.2d 302
• Parties: SIMS v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

Page 302

49 So.2d 302

254 Ala. 598

SIMS v. CITY OF BIRMINGHAM.

6 Div. 771.

Supreme Court of Alabama.

Oct. 19, 1950.

Rehearing Denied Dec. 14, 1950.

Henry Upson Sims, of Birmingham, for appellant.

Graham, Bibb, Wingo & Foster, of Birmingham, for appellee.

PER CURIAM.

This suit involves a strip of land between Blocks 444 and 473, according to the present plan of the City of Birmingham, which strip fronts eighty feet on the south side of Sixth Avenue, South, and which runs back southward between said blocks 255 feet. The appellant, Henry Graham Sims, who was the complainant below, claims ownership of said strip and the improvements thereon by devise from his grandmother, Mrs. Ella M. Graham, deceased. The appellee, the City of Birmingham, the respondent below, claims that said strip of land has been dedicated as a public street.

Benjamin P. Worthington lived for many years with his wife and children on his plantation, consisting of approximately 800 acres of land situate about two miles west of Elyton in Jefferson County, Alabama.

On December 8, 1870, Mr. Worthington and wife conveyed all of this land to Josiah Morris, as trustee for Elyton Land Company, other than a small of tract of approximately two acres, upon which stood the family dwelling and appurtenant outbuildings. The conveyance of December 8, 1870, contained the following provisions in regard to the dwelling and curtilage thereof: '* * * except two acres of the SW 1/4 of NE 1/4 of Section 31, upon which is located the dwelling house in which the said parties of the first part do now reside and the improvements thereon; which two acres of land is hereby reserved by said parties of the first part, subject to the following conditions and terms--that if the said party of the second part, or the company or association of persons, which it is proposed to organize and incorporate under the corporate name and style of the 'Elyton Land Company,' shall at any time within two years from this date, desire to purchase the said two acres of land, the said party of the second part or said land company by its corporate name shall have the right to purchase the same, and the said parties of the first part shall be bound to sell and convey to the said purchasers the said two acres of land and all the improvements thereon upon being paid by said party of the second part or said land company $25 in cash for each of the said two acres, and also paying in cash the assessed value of all improvements thereon at the time of said purchase, said value to be ascertained by referees under the laws of Alabama, two of whom shall be chosen by said parties of the first part and two by said party of the second part or said land company, they having the right in case of disagreement to choose an umpire and their assessment of value of said improvements is to be final.'

It seems to be admitted that after securing the deed of December 8, 1870, but before exercising the option therein contained as to the dwelling, the Elyton Land Company had a map made of the property which had been purchased from Mr. Worthington, as well as the small tract upon which the dwelling and the outbuildings were situated and which, as before indicated, was not included in the said 1870 deed. The map showed the property as divided into streets, lots and blocks. This map or one made shortly thereafter showed the dwelling and outbuildings of Mr. Worthington to be situated in Thirty-first Street as shown on the map, but it was indicated on the map that Thirty-first Street was not open to the public at that point, that is, between Sixth Avenue, South, and Seventh Avenue, South, as those avenues appeared on said map.

Thereafter, on July 22, 1872, before the expiration of the option contained in the conveyance of December 8, 1870, Mr. Worthington and wife executed the following conveyance to Elyton Land Company:

'This Indenture made and entered into this the 22nd day of July, 1872, between B. P. Worthington and wife Caroline Worthington of the County of Jefferson and State of Alabama, of the first part and the Elyton Land Company a body corporate under the general laws of said State with the power of building, purchasing and selling real estate WITNESSETH that Whereas, the said B. P. Worthington and his wife, Caroline Worthington have heretofore to-wit: on the 8th day of December, 1870, sold and conveyed to Josiah Morris and by supplemental and amendatory deed dated 17th of July, 1871, sold and conveyed to the said Elyton Land Company, a corporation as aforesaid certain tracts or parcels of land situated in the County and State aforesaid subject to a reservation on the part of the said B. P. Worthington and his wife Caroline Worthington of two acres of said land, and the improvements thereon situated in the Southwest Quarter of the North East Quarter of Section 31, Tp. 17, R. 2. West, and Whereas by the stipulations of the deed first aforesaid it was agreed that the said Josiah Morris or his assigns should have the right to purchase from the said B. P. Worthington and wife, Caroline Worthington the said two acres and improvements thereon at any time within two years from said date, and whereas, the said Elyton Land Company holding under the said Josiah Morris do now desire to purchase said two acres of land.

'NOW, THEREFORE, the said B. P. Worthington and his said wife Caroline for and in consideration of the sum of one dollar in hand paid and the further consideration expressed in deed of conveyance from said Elyton Land Company to the said B. P. Worthington of even date with this instrument, have bargained and sold and by these presents do bargain, sell and convey to the said Elyton Land Company the two acres aforesaid situated in the S.W. 1/4 of the N.E. 1/4, Tp. 17, R. 2. West & reserved as aforesaid by the said B. P. Worthington and said wife, Caroline Worthington in the deed first aforesaid subject however to the following stipulations and agreements, to-wit:----

'The said B. P. Worthington shall have the right to use and occupy the dwelling and outhouses now occupied by him situated, in 31st Street in the plan of the property of the Elyton Land Company between 6th and 7th Avenues South until such time as the said Elyton Land Company may desire to open for public use said 31st Street between 6th and 7th Avenues South and the said Elyton Land Company shall have the right to open said street last aforesaid at any time they may think proper on payment to the said B. P. Worthington in cash the assessed value of said dwelling and outhouses which may be situated in said street at the date of the assessment which assessment must be made if the parties hereto cannot agree upon the value, by referees under the arbitration laws of the State of Alabama, two of whom shall be chosen by the said Elyton Land Company and two by the said B. P. Worthington, they having the right in case of a disagreement to choose an umpire and their assessment of the value to be final.'

Hereafter, when we refer to Thirty-first Street we have reference to that strip of land eighty feet in width which lies between Sixth Avenue, South, on the north, and Seventh Avenue, South, on the south, and shown on the maps, plans, and plats as Thirty-first Street.

Mr. Worthington continued to occupy the family dwelling until his death in November, 1884, no effort having been made during his lifetime to open Thirty-first Street in accordance with the conditions expressed in the deed of July 22, 1872.

In distributing his property, Mr. Worthington, in May, 1884, executed a conveyance to his wife, Caroline Worthington, wherein he conveyed among other property that described as follows: 'Also all that part of 31st Street on which my homestead is situated being all that part of said street lying between Avenues 'F' and 'G' and Block 444 and 473.' It is well to note at this point that Avenue F is the same as Sixth Avenue, South, and Avenue G the same as Seventh Avenue, South.

Thereafter, in May, 1889, approximately three months before her death, Mrs. Caroline Worthington, the widow of Benjamin P. Worthington, executed a deed wherein she conveyed to her three daughters, Mrs. Virginia Elizabeth Nabers, Mrs. Mary C. Robertson, and Mrs. Ella M. Graham, a portion of the strip of land theretofore conveyed to her by her husband in May, 1884. The description in the deed from Mrs. Worthington to her said three daughters was as follows: 'A strip of land eighty (80) feet by four hundred (400) feet being a rectangle and constituting what would be all that part of the thirty-first (31) street between Avenues F & G, if said thirty-first street was extended between Avenues F, & G, being bounded on the North by Avenue F, on the east by block Number four hundred and seventy three (473), on the South by Avenue G and on the west by block number four hundred and forty-four (444), together with all the improvements thereon, except one hundred and forty five (145) feet off of the south end of said strip, which one hundred forty-five (145) feet by eighty (80) feet extending from the rear of the old Worthington house to Avenue G which shall be kept open and used in common by the owners of all of the adjoining lots, situated in Birmingham, Jefferson County, Ala.'

In April, 1905, Mrs. Nabers and Mrs. Robertson conveyed their interest in the said strip, which they had acquired by deed from their mother, to their sister, Mrs. Ella M. Graham.

Mrs. Worthington and her three daughters were in open possession of said strip, claiming to own it ever since Mr. Worthington's deed to Mrs. Worthington, as against Elyton Land Company and its assigns, if any. Mrs. Graham continued in possession of the strip of land and was in possession when in 1916 the City of Birmingham filed it bill in equity against her in the city court of Birmingham, seeking to have her remove the buildings and fences on the said strip of land, on the ground that they constituted a nuisance. The suit was...