Trammell v. Bradford

• Citation: 198 Ala. 513,73 So. 894
• Decision Date: 07 December 1916
• Docket Number: 6 Div. 253
• Parties: TRAMMELL v. BRADFORD.
• Court: Supreme Court of Alabama

73 So. 894

198 Ala. 513

TRAMMELL v. BRADFORD.

6 Div. 253

Supreme Court of Alabama

December 7, 1916

On Application for Rehearing, Jan. 18, 1917

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by G.R. Trammell against William H. Bradford. From a decree sustaining demurrer to the bill, complainant appeals. Reversed, rendered, and remanded.

W.K Terry, of Birmingham, for appellant.

A. &amp F.B. Latady, of Birmingham, for appellee.

SOMERVILLE, J.

The bill of complaint is filed to prevent the obstruction by respondent of an alleged public roadway established by the joint agreement and action of complainant and respondent between their lands in 1903, "with the express understanding on the part of each that thenceforward said strip should be taken and considered as and for a boundary line between their respective parts of said quarter section, and as and for a public road for themselves and the public at large." It is alleged that this road has been continuously used as a public road by these parties and the general public, "without let or hindrance and as of right," until its obstruction by respondent in 1915. It is further specifically alleged that "said road was by the acts of complainant and defendant, as hereinabove alleged, thereby dedicated to the public as a public road, and was so accepted by the public by the user of the same as a public road."

On common-law principles, which still prevail in this state, a road may be effectually dedicated to public use either "verbally or by writing, by a single act or a series of acts, if clear and unequivocal, as indicating the owner's intention." B. Land Co. v. Jenkins, 111 Ala. 135, 148, 18 So. 565, 568, 56 Am.St.Rep. 26. A single clear and unequivocal declaration by the owner may be sufficient for this purpose. Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Steele v. Sullivan, 70 Ala. 589.

The dedication must of course be accepted by the public, but formal acts are not necessary, and acceptance may be effectively shown by a general user by the public. This user need not be for any particular length of time, but only long enough to show that the public are acting upon the theory of a public right resulting from the dedicatory act or acts of the owner. Stewart v. Conley, 122 Ala. 179, 27 So. 303; 1 Elliott on R. & S. (3d Ed.) § 178.

The allegations of the amended bill sufficiently show the dedication of the road in question and its acceptance by the public. The bill shows that the road in question passes "through said quarter section *** to a settlement road leading into a public road," which latter road connects "Clear Creek public road and the Jasper public road." One ground of demurrer makes the point that this road cannot be a public road, because, as shown by the bill, it does not connect with a public road at either end.

To be a public road a road must, of physical necessity, be so situated and connected as to be accessible to the public. But it is enough that the public have actual access to the road, whether by a mere neighborhood or settlement road or by some established public highway. The fact that this section of road is a cul-de-sac, or has no public road connection, may be more or less persuasive as evidence to show that its use is in fact private and limited rather than public and general; but the test is public use, and not public road connections. 1 Elliott on R. & S. (3d Ed.) §§ 2, 11.

We hold that the amended bill is not subject to any of the grounds of demurrer assigned.

Let the decree of the chancery court be reversed, and a decree here rendered overruling the demurrer to the bill of complaint.

Reversed, rendered, and remanded.

ANDERSON, C.J., and MAYFIELD and THOMAS, JJ., concur.

On Application for Rehearing.

SOMERVILLE J.

It is now urged in behalf of the appellee that the dedication of land as a public road is not complete without acceptance on the part of the public by and through its municipal officers; in short, that acceptance is not sufficiently shown by mere long continued user. The cases which are supposed to support this contention are: McDade v. State, 95 Ala. 28, 11 So. 375; Harper v. State, 109 Ala. 66, 19 So. 901; Lewman v. Andrews, 129 Ala. 170, 29 So. 692, and Cross v. State, 147 Ala. 125, 41 So. 875.

In McDade v. State, supra, there is quoted without comment the definition of a "public highway," as stated in Kennedy v. Williams, 87 N.C. 6:

"A public highway is one under the control of and kept up by the public, and must either be established is a regular proceeding for that purpose, or generally used by the public for twenty years, or dedicated by the owner of the soil and accepted by the proper authorities."

There was no evidence of express dedication of the soil by the owner, and it was used as a "turnout" from the regular highway only on isolated occasions. The decision in no way involved the question of acceptance of a dedication by the public, nor does the opinion so treat it.

In Harper v. State, supra, the same definition is quoted from the same case, but the opinion declares that:

A dedication "must be completed by the acceptance of the public, which may be manifested from any public use, or by some corporate act, or acts of public officers, recognizing and adopting the highway as public." (Italics supplied.) In Lewman v. Andrews, supra, the same definition is again quoted, citing the McDade and Harper Cases. Again there was no question of dedication or acceptance, and the court remarks that:

"The question, when a highway not established by law, or dedicated by the owner to public uses,

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