Tuxedo Homes, Inc. v. Green
| Citation | 63 So.2d 812,258 Ala. 494 |
| Decision Date | 13 March 1953 |
| Docket Number | 6 Div. 496 |
| Parties | TUXEDO HOMES, Inc. v. GREEN et al., Commissioners of City of Birmingham et al. |
| Court | Supreme Court of Alabama |
Smyer & Smyer, Birmingham, for appellant.
J. M. Breckenridge, Birmingham, for appellees.
This is an appeal from a judgment of the circuit court in a cause wherein appellant sought to have a mandamus directed to the city commissioners and the city engineer of the City of Birmingham to require them to indorse, in writing, their approval upon a certain map or plat of land located in the City of Birmingham, which map petitioner sought to have recorded in the office of the judge of probate of Jefferson County.
A demurrer was sustained by the court to the petition for mandamus. Whereupon petitioner took a non-suit for the purpose of reviewing that order, and a judgment of non-suit was duly entered.
Petitioner owned a certain described tract of land in the City of Birmingham, and desired to subdivide the same into residential lots, streets, avenues and alleys, and made a map or plat of the same. Not being ready to proceed with the entire project, in August 1950, petitioner submitted to the city engineer and city commissioners for their approval a portion of said plat, which portion was marked exhibit 'B' to the petition. The city engineer and city commissioners indorsed their approval upon the same, and it was duly recorded in the probate office of Jefferson County.
Petitioner has become desirous of going forward with the entire program, which includes exhibit 'B' above mentioned, and has presented to the city commissioners and city engineer a map or plat covering the remainder of the project, and marked exhibit 'C' to the petition. The city engineer and city commissioners, it is related in the petition, declined to give their approval to the same. The petition alleges that the refusal to do so by the city commission and by the city engineer, respectively, was an arbitrary exercise of their power and without cause. The petition sets up the facts upon which that arbitrary refusal was based, mainly with reference to a proposed lift pump to be installed for the purpose of taking care of sanitary sewerage, alleging that petitioner purchased that certain type of lift pump for use in the development of the property, which the city engineer advised petitioner would be approved.
It is not distinctly alleged that the city engineer and city commissioners withheld their approval on account of their objection to the lift pump, but such is the inference to be drawn from the petition. No other cause is alleged to be asserted by them for their refusal to approve the plat as prepared.
We are therefore confronted with the question of whether the city engineer and city commissioners are, under the circumstances, subject to be compelled by mandamus to enter their approval upon said plat or map so that the same may be recorded in the office of the judge of probate of Jefferson County, as authorized by sections 12, 13, 14 and 15 of Title 56 of the Code, as the same is also affected by section 662, Title 62, Code, applicable to the City of Birmingham. Section 12 makes detailed provisions for the nature of the plat or map which may be recorded. It must show the subdivision into which it is proposed to divide the same, giving the length and bearings of the boundaries of each lot and its number, and if it refers to town lots it must show the streets, alleys and public grounds, and give the bearings, length, width and name of each street, as well as the number of each lot and block, and show the relation of it to the government survey. By section 13 it is provided that when completed, it shall be certified by the surveyor and acknowledged by the owner of the property, as required of deeds, and as so completed shall be recorded in the office of the judge of probate, and the acknowledgment and record shall have like effect as in the case of deeds. By section 14 it is provided that when so acknowledged and recorded, the plat or map shall be held to be a conveyance in fee simple of such portion of the premises platted as donated to the public, and that such portions marked for streets, alleys, common and other public places shall be held in trust for those purposes. By section 15, it is provided that the probate judge shall decline to receive for record such map or plat as to lands lying within the corporate limits of any city having a population of more than 10,000, unless such map shall have noted thereon the approval of the governing body or the city engineer of such city.
Section 662, Title 62, Code, applicable only to the City of Birmingham, provides in substance that no dedication of a street, alley, or other public way, shall be effective without the assent of the governing body of the city, evidenced by an ordinance or resolution by such governing body, which may be recorded with the map or plat showing a subdivision of lands in said city.
It is argued that a city cannot be required by a property owner to accept the dedication of a street, which it is claimed is implied by the approval of such a map showing streets, alleys and other public places.
It is thoroughly well settled in this State and elsewhere that an owner of land cannot impose his dedication of a street upon the public by platting the tract and disposing of lots according to the plat; and that in order to have a dedication there must be an acceptance of it by the city if the property is located in a city. Ivey v. City of Birmingham, 190 Ala. 196, 67 So. 506. The mere recording of the map or plat does not add to its effect as an acceptance of the dedication.
It would not be contended that the City of Birmingham could be forced by mandamus or any other process to accept the dedication offered by a landowner of streets, alleys and other public places shown by the map or plat.
It is contended also that section 662, supra, should be construed along with the statutes cited above in Title 56, to mean that such a plat in the City of Birmingham cannot be recorded unless the city commissioners of Birmingham shall pass an ordinance or resolution, such as there provided, in substance and effect, accepting a dedication of the streets, alleys and other public places shown by said map or plat. But we call attention to the fact that section 662, supra, does not so provide. It only prohibits an effective dedication without the assent of the city commission and merely authorizes the city commission to pass an ordinance or resolution to that effect to be recorded along with the recordation of such a map or plat. It is clear that it is not necessary to comply with section 662 as a condition precedent to the recording of a map or plat in Birmingham, as authorized by section 15, supra. However, it is necessary for the city commissioners of Birmingham or its city engineer to note on the plat their approval of the same.
The authorities generally agree, as we will show, that the mere approval of the plat or map by the governing body is not an acceptance of the dedication...
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