Smith v. City of Opelika

• Decision Date: 10 February 1910
• Citation: 51 So. 821,165 Ala. 630
• Parties: SMITH ET AL. v. CITY OF OPELIKA.
• Court: Alabama Supreme Court

51 So. 821

165 Ala. 630

SMITH ET AL. v. CITY OF OPELIKA.

Supreme Court of Alabama

February 10, 1910

Appeal from Chancery Court, Lee County; W. W. Whiteside, Chancellor.

Suit by the City of Opelika against Jesse W. Smith and others. Decree for plaintiff. Defendants appeal. Reversed and rendered.

R. B Barnes, George P. Harrison, and Lum Duke, for appellants.

Houston & Power and A. E. Barnett, for appellee.

MAYFIELD J.

The bill is filed by the city of Opelika, and seeks to remove, as an obstruction of its streets and as a public nuisance, a small wooden building used as a market house. The bill unquestionably has equity, and, if its averments are proven the city is entitled to the relief prayed. Reed v Birmingham, 92 Ala. 339, 9 So. 161. The chancellor, on the final hearing on the pleadings and the proof, of which there was a great deal, granted the relief prayed, and, from his decree, respondents appeal. And being granted a severance, Thomas J. Wesley, for and in behalf of himself individually and an administrator of the estate of L. P. Grant, assigns appropriate errors.

The only disputed or litigated question of fact in the case, necessary to be considered on this appeal, is whether or not the building, the subject-matter of the suit, is located in the streets of Opelika as alleged in the bill. If it is in the street, as alleged, then the complainant is entitled to the relief prayed and awarded; if it is not, the decree is wrong and the bill should be dismissed.

It was and is insisted by complainant that the land or plot of ground on which the building in question is located is a part of South Railroad street, in the city of Opelika; that it was made such through a dedication by the original owner of the land, to wit, L. P. Grant, whose estate is interested in the result of this suit. It is conceded that he once owned the land in question, and all that adjoining it on every side, and that his estate or his heirs or assigns now own the fee therein, subject to the easement or right of way over it, as a public street, which the city or the public acquired through the dedication thereof by the original owner, in his lifetime, more than 30 years ago.

It is insisted by appellants, the owners, and respondents, that the land in question is not now, and has never been a part of the street. On this issue most of the evidence pro and con was taken.

It is claimed by the city that the land became a part of the street by reason of a dedication made by the original owner, L. P. Grant; and that said dedication was effectuated by said Grant's mapping and platting his lands adjoining and including the lot in question, and surveying and laying it off into blocks, lots, streets, and alleys, and then selling said lots as bounded by such streets and alleys; and that, as thus mapped and platted, the land in question was a part of South Railroad street, and thus became irrevocably dedicated to the public as a street. If this be true and proven, the complainant was entitled to the relief prayed and awarded by the chancellor. Equity has undoubted power, at the suit of a municipality, to enjoin the perpetration or continuance of an obstruction of its streets, as a nuisance. Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Reed v. Birmingham, 92 Ala. 339, 9 So. 161. If the land in question, on which the building in question is located, is a part of the street, it became such alone by the original dedication of the original owner--his mapping and platting it. The evidence indisputably, if not beyond conflict, shows that it is not now used, and never has been used, by the city or the public as a street. It was never opened, nor kept open, by the city or by the public, as a street, and has never been used by the public as such. But if there was a complete dedication of it to the public as a street, and an acceptance of it as such by the city or by the public, this would not prevent the relief prayed in this bill or awarded in the decree. If the dedication by the owner was complete and irrevocable, it was not necessary that it be improved or opened and kept so, by the city, within a given time. The city could now accept, adopt, and improve it as a part of its street system, even against the owner, if the dedication was originally complete and irrevocable.

Where the public streets of a city are dedicated by mapping and platting, the municipality and then the public acquire a right thereto, though the municipality be not then incorporated; and, as against this right, nonuser, the rule of prescription, nor the statute of limitations does not run. Harn v. Dadeville, 100 Ala. 199, 14 So. 9; Sherer v. Jasper, 93 Ala. 530, 9 So. 584; Reed v. Birmingham, 92 Ala. 339, 9 So. 161; Webb v Demopolis, 95 Ala. 116, 13 So. 289, 21 L. R. A. 62. "It cannot be questioned, that when a landowner lays out his land into lots, setting apart certain portions as streets, with a view of establishing a town, a sale of the lots, with reference to a map defining and delineating the streets, is a complete dedication to the use of the purchasers and the public. Such dedication, when...