Talley v. Wallace

• Decision Date: 31 March 1949
• Docket Number: 3 Div. 490.
• Parties: TALLEY v. WALLACE et al.
• Court: Alabama Supreme Court

39 So.2d 672

252 Ala. 96

TALLEY v. WALLACE et al.

3 Div. 490.

Supreme Court of Alabama

March 31, 1949

Ballard & Ballard, of Montgomery, for appellant.

R. S. Hill, Jr. and V. H. Robison, both of Montgomery, for appellees.

LAWSON Justice.

This is an appeal from a decree of the circuit court of Montgomery County, in equity, vacating and annulling an alley.

For the purpose of a better understanding of the issues presented by this appeal, we are including in the opinion a rough sketch of the locus of the dispute. This sketch was not introduced in evidence; it is not drawn to scale; it is merely our understanding of the general location of the alley and its surroundings as shown by the pleadings and the evidence.

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In February, 1909, the Crowson Plat was recorded in the office of the judge of probate of Montgomery County. That the plat was duly certified, acknowledged and recorded is not disputed. The Crowson Plat included lands in Montgomery County near, but not within, the corporate limits of the city of Montgomery. It included the land shown in the above sketch south of the northern boundary of the alley, between the Lower Wetumpka Road and Traction Avenue. The land north of the alley was not a part of the Crowson Plat and was not owned by the same person.

It appears to be without dispute that the portion of the land designated on the sketch as an 'alley' was in fact so designated in the Crowson Plat. As here material, it may be described as the northernmost ten feet of the portion of land included in the Crowson Plat which is located between the Lower Wetumpka Road and Traction Avenue.

It is well settled by the decisions of this court that where a person plats land and lays off lots according to such plat and makes sale of one or more of such lots with reference thereto, he irrevocably dedicates the land designated thereon as streets, alleys, avenues, and highways to the public for public uses. Nashville, C. & St. L. Ry. Co. v. Hulgan 219 Ala. 56, 121 So. 62, and cases there cited.

Although the strip of land designated on the sketch as an alley was so described in the Crowson Plat when it was recorded in 1909 it has never been used as a public way between the Lower Wetumpka Road and Traction Avenue. Montgomery County has never considered it as a part of its road system and has never made any attempt to put it in shape for use by the public. The alley up to the time of the filing of this suit had never been used as a means of access to any of the property attingent upon it. Lots C-1, C-2, C-3, and C-4 and the houses constructed thereon have been owned separately by the four complainants for some time. Entrance to the several lots has always been gained from the county road upon which the lot faces.

Lot R-1 is owned by the respondent, Talley, and, as shown by the sketch, it faces on the Lower Wetumpka Road. Shortly before this suit was filed, and after he had purchased Lot R-1 from a Mrs. Dukes, the respondent, Talley purchased Lot R-2 from one A. E. Ball and wife. Before the deed to Lot R-2 had been delivered, Talley was informed by the complainant who is the owner of Lot C-3 that an effort was going to be made to vacate the alley, which at that time was not even cleared of bushes and debris. Talley at the time he purchased Lot R-2 was familiar with the Crowson Plat and the fact that said lot, although not a part of the Crowson Plat, abutted upon the northern boundary of the alley.

The complainants, the owners of Lots C-1, C-2, C-3, and C-4, sought to have the alley vacated in the manner provided in § 17, Title 56, Code 1940, but were prevented from accomplishing their purpose by the refusal of Talley, the owner of Lot R-2, to join in a written instrument declaring the alley vacated.

Whereupon complainants, as owners of Lots C-1, C-2, C-3, and C-4, instituted this proceeding in the equity court of Montgomery County for the purpose of having that court vacate and annul the alley. They made Talley, the only other owner of property attingent upon the alley, a party respondent. Montgomery County was also made a party respondent, as were several mortgagees. The mortgagees voiced no objection to the vacation of the alley and in fact joined with the complainants in asking that it be vacated. No opposition to the closing of the alley is expressed by Montgomery County.

We are of the opinion that the trial court erred in ordering that the alley be vacated and annulled.

The trial court no doubt construed §§ 21-25, Title 56, Code 1940 as being direct authority for its action. Indeed, the language of those sections seems to expressly confer upon a court of equity the jurisdiction and authority to vacate and annul a public way when all the owners of property attingent thereupon and the political subdivision (municipality or county) in which the said way is located are parties to the litigation. But said sections make no provision...