Smith v. City of Dothan
| Decision Date | 22 May 1924 |
| Docket Number | 4 Div. 125. |
| Parties | SMITH v. CITY OF DOTHAN. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Bill in equity by the City of Dothan against Hugh G. Smith, to prevent obstruction of a highway. From a decree for complainant, respondent appeals. Affirmed.
O. S Lewis, of Dothan, for appellant.
Reid & Doster and Farmer, Merrill & Farmer, all of Dothan, for appellee.
This is a bill in equity by the city of Dothan against the appellant for the abatement of a nuisance-an obstruction over and along an alleged public highway called North Park avenue in said city. From a decree granting the relief prayed, the respondent has prosecuted this appeal.
West Main street is one of the chief thoroughfares of the city of Dothan, running east and west from the center of the city to the western limits thereof. North street is practically parallel with West Main street, and runs east and west north of said Main street between a quarter and half mile. Before the improvements which form the subject of this controversy were begun there was a roadway extending from West Main street north to North street of uniform width of approximately 20 feet, which had been used and traveled by the public for a long period of time. The respondent to this bill owned a parcel of land on West Main street, adjoining this roadway, running from West Main street north along said roadway approximately 495 feet. North of respondent's property and on each side of what is known as Park avenue is a tract of land referred to as the Chapman property consisting of more than 60 acres. The Chapman property had been sold under a mortgage foreclosure proceeding and purchased by the Dothan Guano Company and the First National Bank of Dothan. Respondent had obtained from these purchasers a contract of purchase, and was in possession and control of the Chapman property, but the statutory right of redemption was still outstanding.
Under the circumstances as thus outlined the respondent had a row of stakes placed on the east and west sides of Park avenue from Main street to North street, extending both across his property and that known as the Chapman property, which was in his possession. These stakes were placed for the purpose of widening the street, and to this end furrows were plowed between these stakes under the respondent's instructions. Respondent has planted shade trees on each side of this avenue as thus widened from Main street to North street, except as to the Moore tract which was directly opposite his own, and over which he had no control. He requested the authorities of the city of Dothan to open up this street as well as some others, which need not be here noted. This was done, the county authorities also rendering some assistance, and the street was therefore opened up by these public authorities to the width as laid out by the respondent, and from January, 1923, as the evidence discloses, this avenue as thus widened and laid off for its entire distance from West Main street to North street has remained a public thoroughfare of the city of Dothan, extensively and continuously used as a street by the public and maintained, worked, and kept in condition by the city authorities.
Subsequently it developed that the Chapman property was redeemed, and respondent did not acquire the title thereto. In October, 1923, the respondent erected a wire fence in that portion of Park avenue which had been widened by embracing a portion of his own property running along Park avenue north 495 feet, and for the removal of this obstruction the bill was filed.
At the time the improvements were made by widening Park avenue only a portion of the property was within the city limits, but subsequently, in October, 1923, these limits were extended by legislative enactment so as to include all of Park avenue [Local Acts 1923, p. 63], and it appears that subsequent to the passage of this Act the city authorities continued to keep up and maintain Park avenue as thus widened, and as a thoroughfare it was continued to be used as theretofore.
The city rests its case upon the doctrine of common-law dedication. To constitute a dedication there must of course be an intention of the owner to dedicate the property and an acceptance by the public or by some authorized person or body of persons acting in its behalf. The evidence very clerly shows an acceptance by the public of the dedicated property subsequent to the approval of the act extending the corporate limits so as to embrace all of Park avenue. The fact that a portion of this avenue was not within the city limits at the time of the dedication in therefore without material bearing on this appeal. 8 R. C. L. 888.
There was evidence that respondent expressly requested the city authorities to assist him in opening this street, and he...
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