Stewart v. Conley

• Decision Date: 21 April 1899
• Citation: 27 So. 303,122 Ala. 179
• Parties: STEWART v. CONLEY. [1]
• Court: Alabama Supreme Court

27 So. 303

122 Ala. 179

STEWART v. CONLEY. ^[1]

Supreme Court of Alabama

April 21, 1899

Appeal from chancery court, Talladega county; J. R. Dowdell Chancellor.

Bill by H. A. Stewart against M. S. Conley to enjoin defendant from closing a road. From a decree dismissing the complaint plaintiff appeals. Decree for plaintiff.

The bill alleged the dedication of the road in controversy, and that it had been used as a public street, and had been accepted by the public. A temporary injunction was granted upon the filing of the bill. In her answer the respondent admitted that she was erecting gates across the alleged road and she averred that she had the right to close up the road by reason of the fact that she was the widow of R. T. Conley, who owned the property during his lifetime, and that he is the person alleged in the bill to have dedicated the property as a public highway. The respondent also averred in the bill that the property was a part of the tract of land which had been allotted to her and her minor children as a homestead, and she denied the dedication of said strip of land as a public street, or that it had ever been accepted by the public. The other facts of the case are sufficiently stated in the opinion. Upon the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainant was not entitled to the relief prayed for, and ordered his bill dismissed. From this decree the complainant appeals, and assigns the rendition thereof as error.

Knox, Bowie & Dixon, for appellant.

Browne & Dryer, for appellee.

TYSON J.

The bill in this case was filed by appellant to enjoin the appellee from inclosing, by means of fences and gates, a street or public highway between their respective lots. The bill alleges a dedication to public use of this highway by the husband of respondent, and its general use by the traveling public as a street or road. It appears from the answer that the respondent, as the widow of her husband, is and has been in possession of the house and lot occupied by him at the date of his death, in 1892, as a homestead set apart to her by the probate court of Talladega county; that in 1872 her husband purchased the strip of land upon which the street or public road now in dispute is located; and that she had erected fences at each end of this road or street, and had erected one gate, and was in the act of erecting the other, across the road, when the writ of injunction was served upon her. It appears from the testimony that during the year 1872 respondent's husband built the two fences upon each side of this street or road, leaving this lane between thelot upon which his dwelling was situated and the lot owned by him and now owned by complainant, and these fences have remained in the same place upon which they were built during all these years. It is also beyond cavil that since this road or street in controversy was opened, in 1872, it has been used by the public as a highway; that carriages, wagons, pedestrians, and persons on horseback traveled over it; and especially was this true of those people living in that section of the county south of the railroad, who attended the Baptist Church, and those going to a mill situated north of the railroad, and those who desired to go from the Georgia road to the Oxford road, and vice versa,-the two public roads more traveled than any others in that vicinity.

The single question is presented whether there was an express dedication by Conley, respondent's husband, when he opened this street or road, of it to the public use. The whole theory of the defense was that the use by the public of it was permissive, and that no implied dedication can be inferred because of certain interruptions of the public by private uses made of it by Conley during his lifetime, which however, are not clearly established by the testimony. In other words, it is contended by appellee that, in order for complainant to succeed, the evidence must establish a continuous and exclusive use by the public for a period of 20 years, before a presumption of dedication will arise. Where an implied dedication is relied upon, this theory is undoubtedly correct. But, where the evidence shows an express dedication, then the rights of the public are not dependent upon its use for any given length of time, but are dependent upon acceptance by it of the proposed dedication. Elliott, Roads & S. p. 127; Steele v. Sullivan, 70 Ala. 589; Harper v. State, 109 Ala. 66, 19 So. 901; McDade v. State, 95 Ala. 30, 11 So. 375; 9 Am. & Eng. Enc. Law, p. 362, and note. We have, then, growing out of the question propounded above, as to whether Conley made an express dedication of the street or road, to ascertain from the evidence whether he made with any one an agreement or contract by which he was to either open it or leave it open for the use of the traveling public, and, if so, was there an acceptance of it, either express or implied, by the town authorities of Munford, as then constituted, or the public? That a verbal agreement or contract to that effect was effectual to bind him, if he made it, can hardly be questioned. Steele v. Sullivan, supra; 9 Am. & Eng. Enc. Law (2d Ed.) p. 22; Elliott, Roads & S. 91. Nor does the agreement or contract necessarily have to be made with the town or county authorities having charge and control of the public streets or roads of the town or county. It is sufficient if, in...