Stringer Realty Co. v. City of Gadsden

• Decision Date: 28 June 1951
• Docket Number: 7 Div. 55
• Citation: 256 Ala. 77,53 So.2d 617
• Parties: STRINGER REALTY CO., Inc. v. CITY OF GADSDEN et al.
• Court: Alabama Supreme Court

Page 617

53 So.2d 617

256 Ala. 77

STRINGER REALTY CO., Inc. v. CITY OF GADSDEN et al.

7 Div. 55.

Supreme Court of Alabama.

June 28, 1951.

Lusk, Swann & Burns, Gadsden, for appellant.

Dortch, Allen & Meighan and H. S. Patterson, Jr., Gadsden, for appellees.

STAKELY, Justice.

Stringer Realty Company, Inc., a corporation, filed a bill to quiet title against the City of Gadsden and Hermine C. Patterson, alleging that she was such a person as would fairly insure adequate representation of all other persons in a class. The bill contained the usual provisions required by the statute in bills of this character. Code of 1940, Tit. 7, § 1110. The bill contained further allegations. Since these additional allegations and the proof offered in support thereof are in accord, it is sufficient to state in substance the facts as shown by the evidence.

Prior to March 9, 1938 certain lands in the City of Gadsden had been platted as shown by a map or plat known as Edenwood Addition. This map or plat was recorded in the office of the Judge of Probate of Etowah County. This map or plat contained Block A, lots 1 to 20, with a portion of the property not divided into lots in the north end, and Block B, lots 1 to 24, with a portion of the property not divided into lots in the south end. Block A was north of Block B so that the two tracts not divided into lots were widely separated. These two tracts comprise the property involved in this suit.

On March 9, 1938 along with other property in Edenwood Addition complainant acquired the property included in Blocks A and B with certain exceptions not here important. The complainant then replatted the property it had obtained into a somewhat differently arranged subdivision, designated as 'Stringer Realty Company Resurvey of Edenwood Addition.' The two tracts not divided into lots on the first map were left unchanged on the second map, except that on the second map each was designated 'Private Park.'

The complainant sold the majority of the lots then owned in the subdivision. Many homes were built and the community grew. In none of the deeds executed by the complainant was any reference made to the 'Private Park.' No deed executed by the plaintiff was pleaded or proved. The two tracts each designated 'Private Park' remained unimproved. They were never developed or used as parks. The plaintiff assessed and paid the taxes thereon and no resident or owner in the subdivision ever evidenced any interest therein. The complainant is in peaceable possession of the property and no suit is pending to enforce or test the validity of any title or claim which any of the parties may have to the land involved. There is no evidence that the tracts or either of them were ways of necessity, accessibility, ingress or egress.

It is alleged in the bill that the defendants claim that the describing of those portions of said Blocks A and B as 'Private Park' on the map or plat, the filing of the map or plat for record and the selling of lots constituted an effective dedication of the property to the public as a public park or a private reservation or easement common to all owners or residents in the addition and that the complainant has no further interest therein except in common with the public or as an owner of the remaining lots. The complainant prayed: 'This court will order and decree there has been no dedication by the plaintiff of the above described parcels of land to public use and neither the public nor the defendant Hermine C. Patterson nor any other owners of lots or residents in said addition have any right, title, interest, or easement in, or encumbrance upon said property and all such claims as the defendants may have to said property as a public park or otherwise be forever quieted in your plaintiff and your plaintiff is vested with a good and indefeasible title in fee simple thereto.'

There was no demurrer to the bill. The City of Gadsden answered:

'1. This defendant claims no interest in the lands described in Paragraph 2 of the bill of complaint and referred to in said paragraph as 'Private Park'.

'2. This defendant has never accepted either of said tracts of land as a park and has never exercised any dominion or control whatever over either of them and has no intention of so doing.'

The respondent Hermine C. Patterson answered: 'The complainant had surveyed and platted the lands as shown by the copy of the map or plat attached to said Bill of Complaint as Exhibit 'A' and made a part thereof, and the entire tract owned and possessed by the complainant was divided in said map or plat into smaller tracts known as lots with the exception of two tracts marked 'Private Park'. It is further averred that the purpose of dividing said lands and platting them was to make said lands attractive to prospective purchasers thereof, at more favorable prices, and this defendant was one of said purchasers * * * The statutes of the State of Alabama provide for the statutory dedication of land for public use and because of the nature and location of the heretofore referred to tracts and the mode, plan and scheme of division by said map or plat, this defendant is informed and believes and upon such information and belief, says that the title, ownership and possession of the two said tracts were intended to be dedicated and actually were dedicated, in fact and law, to purchasers of said lots in said map or plat, Exhibit 'A', of whom this defendant is one.'

Only one witness testified in the case. This witness was T. A. Stringer, President of the Stringer Realty Company, the complainant in the cause. His testimony supported the statutory allegations in the bill and also the allegations of the bill that the areas of the blocks designated on the recorded map as 'Private Park' were never intended to be dedicated to public use or for the private use of persons buying property in the platted areas, that at no time since the property was platted had the public or any person owning property in the subdivision exercised any rights in connection with the property and further that the Stringer Realty Company had assessed and paid the taxes on the property designated as 'Private Park' along with its other property. At the conclusion of the hearing the court entered a decree denying the relief sought by the bill and dismissing the bill.

It is obvious that the decree denying the complainant relief can only be sustained on one of two theories (1) dedication to public use or (2) the granting of an easement for private use.

It cannot be sustained as a dedication to public use. To describe a tract of land as 'Private Park' appears to indicate the opposite of public use. There is such a thing as a private park as contrasted with a public park. Golf View Realty Co. v. Sioux City, 222 Iowa 433, 269 N.W. 451; 67 C.J.S. Park, page 859. The acknowledgment and recordation of the map or plat did not operate as a statutory dedication of the lands in question since the map or plat did not show these lands to be 'public grounds.' § 12 et seq., Title 56, Code of 1940. Nor was there a common law dedication.

In Steele v. Sullivan, 70 Ala. 589, this court said: 'A dedication of land to the public use, as a highway, need not be in writing, but may originate by any act or declaration of the owner, which manifests an intention to devote the property to such public use. Being a voluntary donation, it will not be presumed, without the clearest intention to this end. It must be completed by the acceptance of the public, and, when once accepted, is irrevocable. The act of dedication, especially if single, must be clear and unequivocal; but acceptance may be shown by long public use, or by acts of corporate or other public officers, recognizing and adopting the highway as such. * * *.'

In 16 Am.Jur. p. 359, § 15, it is said: 'There is no such thing as a dedication between the owner and individuals. The public must be a party to every dedication. In fact, the essence of a dedication to public uses is that it shall be for the use of the public at large. There may be a dedication of lands for special uses, but it must be for the benefit of the...