Stack v. Tennessee Land Co.

• Decision Date: 05 April 1923
• Docket Number: 6 Div. 700.
• Citation: 96 So. 355,209 Ala. 449
• Parties: STACK v. TENNESSEE LAND CO. ET AL.
• Court: Alabama Supreme Court

96 So. 355

209 Ala. 449

STACK v. TENNESSEE LAND CO. ET AL.

6 Div. 700.

Supreme Court of Alabama

April 5, 1923

Rehearing Denied May 10, 1923.

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by N. B. Stack against the Tennessee Land Company, the Tennessee Coal, Iron & Railroad Company, and the Birmingham Southern Railroad Company, to declare void an attempted vacation of streets and avenues, and to enjoin the placing of obstructions therein. From a decree dismissing the bill complainant appeals. Reversed and remanded.

Edward T. Rice, of Birmingham, for appellant.

Percy Benners & Burr and E. J. Smyer, all of Birmingham, for appellees.

GARDNER J.

The owners of two certain 40-acre tracts of land had the same surveyed and subdivided into town lots, with appropriate streets and avenues, and the plat or map thereof recorded in the probate office. These two 40-acre tracts adjoin, and are referred to in the present record as the east and west forty and were divided by what was called by the witnesses Forty-Eighth street and designated on the map Orpheus street. The subdivided property is referred to as the Collins and Johns survey. This property was originally located in the corporate limits of what was once known as Wylam, but now embraced within the corporate limits of the city of Birmingham.

Numerous lots were sold to various purchasers according to this survey, and with reference thereto in the deeds of conveyance. There are but few houses located in either of these tracts; considerably more, however, in the east 40 than in the west. Immediately west of the Collins and Johns survey are two surveys embracing less than 20 acres of land, one called Minneville and the other the Hilton, upon which are located a few houses, and unsubdivided lands of the defendant are to the south and west of the Collins and Johns survey.

From 1890 to 1918 the defendant Birmingham Southern Railroad Company operated a railroad through the west 40 of this survey and near its western side, and in this latter year some of the defendants took over this road and constructed two new railroads near the western border of this west 40, one of these roads being built on a fill estimated from 10 to 20 feet in height. In so far as these roads passed along or across the streets of the city of Birmingham they were constructed pursuant to a franchise from that city, but no interference with the public as to any streets was thereby contemplated. About the time of their construction the defendant had acquired all the lots in the west 40, and, with the consent of the city authorities, filed an instrument of vacation of most of the streets and avenues in this 40. The railroad embankment just referred to lies directly across Thirteenth or Jupiter avenue, rendering the same impassable to the public.

Complainant is the owner of a large number of lots in the east 40 of this survey, and files this bill seeking to have the vacation of the streets and avenues, filed by defendants, declared null and void, and that defendant be required to remove the obstruction across said streets and avenues, and be enjoined from placing any further obstruction in or across said streets or avenues, and from closing the same in accordance with the declaration of vacation, or otherwise interfering with the free use of such streets and avenues for travel by complainant and the public.

The complainant insists that the vacation of these streets and avenues does not leave him convenient means of ingress and egress to the property located west of this survey, but that such a vacation will force him from his direct western route, theretofore enjoyed by him, into a circuitous route. It is established by the overwhelming proof, if, indeed, it is not without contradiction, that the vacation of these streets and avenues would require such circuitous route to the property west of this survey, such as Minneville and Hilton, variously estimated from a fraction over a mile to 2 1/2 miles. A. G. S. R. R. v. Barclay, 178 Ala. 124, 59 So. 169; S. & N. R. R. Co. v. Schauffler, 189 Ala. 58, 66 So. 502. Complainant's property lies in the east 40, and is about a quarter of a mile from where Thirteenth or Jupiter avenue is obstructed by the railroad embankment; nor does his property abut any of the streets or avenues embraced within the vacation declaration.

The answer denies that the complainant will be materially inconvenienced, sets forth the distance of his property from the streets and avenues here involved, and that the declaration of vacation was in all respects as required by law.

The map of the Collins and Johns survey, which was filed in the probate office of Jefferson county on June 23, 1887, was offered in evidence, the only certificate appearing thereon being that of the probate judge, to the effect that the same had been filed for registration and duly recorded. The sale and purchase of lots with reference to the Collins and Johns survey irrevocably dedicated to the public the streets and avenues shown thereon. Highland Realty Co. v. Avondale Land Co., 174 Ala. 326, 56 So. 716; Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L. R. A. 62; Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Rudolph v. City of B'ham, 188 Ala. 620, 65 So. 1006.

In Highland Realty Co., supra, this court, speaking to the effect of platting land and selling lots with reference thereto, unqualifiedly approved the rule stated by Mr. Elliott (1 Elliott on Roads and Streets, § 132), in substance, that the plan or scheme indicated on the plat is regarded as a unit, and all who buy with reference to such general scheme acquire a right in all the public ways designated thereon, and may enforce the dedication. Commenting upon this rule, the court said:

"Not only is this the rule of reason and justice, but, as shown by the author's citations, it is supported by a great preponderance of authority. *** This right is not merely a right of personal passageway over the designated streets, or of access to and from the purchased lot, but is a right in the purchaser to have maintained, as against the dedicator, the designated scheme of public ways and places in its integrity, as it existed at the time of his purchase, and that all persons whatsoever may use them as occasion may require. Zearing v. Raber, 74 Ill. 409; Earl v. Chicago, 136 Ill. 285, 26 N.E. 370; Collins v. Land Co., supra, 128 N.C. 563. The right is wholly distinct from the right of the purchaser as against the public, or the right of the public as against the dedicator, and is founded on the estoppel of the deed."

Upon this question there exists a contrariety of judicial opinion, illustrations of which are to be found cited in the note to Douglass v. Balknap Springs Land Co., 76 N.H. 254, 81 A. 1086, 37 L. R. A. (N. S.) 953.

In the Highland Realty Co. Case, supra, this court followed the line of authorities holding to the foregoing view, and directed attention to the fact that, while the private rights of such purchasers had been theretofore recognized in our decisions yet their specific character and precise extent had not been previously determined. Such was therefore the deliberate holding of this court in an...