Webb v. City of Demopolis

• Decision Date: 21 June 1892
• Citation: 13 So. 289,95 Ala. 116
• Parties: WEBB ET AL. v. CITY OF DEMOPOLIS.
• Court: Alabama Supreme Court

13 So. 289

95 Ala. 116

WEBB ET AL. v. CITY OF DEMOPOLIS.

Supreme Court of Alabama

June 21, 1892

Appeal from chancery court, Marengo county; I. K. M. Spadden Chancellor.

Bill by the city of Demopolis against John C. Webb and others, to restrain an obstruction of a street and river landing. Complainant had decree, and defendants appeal. Affirmed.

For report of former appeal, see 6 South. Rep. 408.

The bill in this case was filed on the 11th June, 1888, by the city of Demopolis against John C. Webb and wife and W. H Creagh, and sought (1) an injunction against the continuance of a fence which said Webb had erected across a part of Arch street, near the river, and (2) to prevent the collection of wharfage by the defendants at their landing on the river at or near the foot of said street. At the first hearing, on demurrer, Hon. Thomas W. Coleman presiding as chancellor, it was held (1) that the bill contained equity so far, and only so far, as it sought relief against the obstruction of the street, and (2) that John C. Webb was the only proper defendant, as he alone was charged with the erection and continuance of the fence. On appeal to this court, each party assigning errors, the decree of the chancellor was in all things affirmed. 87 Ala. 659-672, 6 South. Rep. 408. Afterwards, in the court below, the bill was amended to meet the objections pointed out in the opinion of this court. The amendments were these: (1) By striking out the name of W. H Creagh as a defendant; (2) by adding an averment that the landing, with the right to collect wharfage, was dedicated to the public with the street; (3) that the original proprietors of the land, in dedicating Arch street to the public, did not reserve any right to construct a wharf and charge wharfage nor have the defendants acquired any such right by privity of contract with them; (4) that the river landing, and the right to collect wharfage as incident to it, were dedicated to the public with the street. As shown by the former report of the case, the complainant claimed the right to the uninterrupted use of the street under dedication by the proprietors of the land in 1819, and further claimed that the street extended in width beyond high-water mark, and embraced the "lower warehouse property." The defendants denied the alleged dedication as a matter of fact, and claimed that the street, if dedicated at all, did not extend beyond high-water mark on the bank; and they further claimed, by way of plea and answer, that the city had relinquished and forfeited her rights by nonuser for more than 40 years, and pleaded laches, lapse of time, the statute of limitations, prescription, and equitable estoppel. Other questions were raised by demurrer to the bill as amended, but they are not decided by this court. On final hearing, on pleadings and proof, the court below rendered a decree as follows: "On due consideration of the pleadings and proof, as well as the arguments of counsel on each side, the court is of the opinion that the complainant is entitled to the relief prayed for in the bill as amended; and it is therefore ordered, adjudged, and decreed (1) that defendants' demurrers to the bill be, and they are hereby, overruled; (2) that the street in the city of Demopolis commonly called 'Arch Street,' as described in the bill and laid off in the original plan of the said town of Demopolis, along the bank of the river, extending from the river at low-water mark to the nearest lots surveyed and numbered in the plan of said town as shown by the maps thereof, was dedicated in the year 1819, by the then owners of the soil, to the free use of the public as a street, and as a landing, and the same should forever remain open to the free use of the public as a street and as a landing; (3) that the fence or fences erected and maintained by the defendants, or either of them, across said street, above and below the said lower landing, are public nuisances, and should be abated; (4) that the said defendants, by demanding and collecting wharfage from the people for the use of its said lower landing, or otherwise, and by obstructing the free use of said lower landing in Arch street, as averred in the bill and sustained by the evidence, have created and maintained a public nuisance, which should be abated, it being the usurpation of a franchise contrary to law. (5) It is further ordered and decreed that the defendants shall, within thirty days after notice of this decree, which notice the register is hereby ordered to have given, remove the said fences erected and maintained by them, or by their consent, both above and below said landing and near thereto, from and out of said street, and, failing to do so, and notice thereof and complaint to the register, he will report such failure to the next term of the court. (6) It is further ordered and decreed that the said defendants are hereby enjoined and restrained from obstructing the free use of said lower landing by the public in any manner, and from demanding or receiving wharfage or other pay for the mere use of said lower landing; and they are also enjoined and restrained from obstructing in any way the free use of said street by the public as a street or landing, they having no other or greater rights therein than other citizens. (7) It is further ordered and decreed that the defendants pay the costs of this suit." The defendants appeal from this decree, and assign each part of it as error.

Geo. W. Taylor and Jas. T. Jones, for appellants.

Geo. G. Lyon and Pettus & Pettus, for appellee.

McCLELLAN J.

Other questions will be discussed and decided in the progress of this opinion, but, in the view we take of the case, the inquiries of paramount and determining importance are three only: First, did the original proprietors of the land on which the city of Demopolis was subsequently built dedicate to the uses of the public as a street that part of said land which lies between certain numbered lots in the plat or plan of said city and the Tombigbee river, now known as "Arch Street?" And, second, did such dedication, assuming it to have been efficaciously made, extend to the water line at all stages of the river in such sort as to invest the inhabitants of Demopolis and the public generally with the right to pass, in their persons and property, from said street onto the river and from the river onto the street without toll, charge, or hindrance? And, third, has this public right, assuming its original existence, been lost, so far as it pertained to that part of said street which has been appropriated by the respondents, by reason of the character, extent, and duration of their possession, occupancy, and use thereof? The land in question, and which now constitutes the city of Demopolis, was purchased by George S. Gaines, acting for himself and certain associates, in the year 1819, from the United States, and he received patents therefor which were "intended by him and recognized by him as being issued to him" for a company consisting of himself, William A. Cobb, and others. This company had been formed for the purpose of purchasing said land at the government sales, soon thereafter to be made, with a view to, and for the purpose of, laying off and establishing a town thereon, and selling lots therein. The land was exceptionally well located for the establishment and upbuilding of a town under the existing conditions of commerce and transportation, being at a high point on the Tombigbee river, a navigable stream, emptying into the Bay of Mobile, just below its confluence with the Black Warrior river, another navigable stream; and it was doubtless these considerations which not only led to the selection of this site, but which also gave birth to the great expectations, indicated by the handsome prices at which lots in the embryo city were sold, which were indulged as to its future,-expectations which probably only failed of full realization in consequence of the application of steam as a motive power to inland transportation, whereby the importance of water ways was greatly lessened. Be that as it may, it is certain the chief inducement to the location of Demopolis at this point lay in the facilities for commerce and transportation which the river afforded, and doubtless this consideration was put prominently forward in the efforts made by the company to sell its lots in the town. The river thus being a leading inducement to the location of the town, and to the purchase of lots therein, it would have been singular, indeed, if the proprietors of the site had not made provision looking to the utilization of this water way by those who had been induced in great part to settle there because of the facilities for transportation offered by it, and the public at large, by so laying out the town as to afford easy access to the river from the town, and vice versa. They did not fail to make such provision, but left the whole river front of the city open, unobstructed, and free of access. It is not controverted at all that on every plan, plat, or map of the town, from the first one, made by Stone soon after the purchase of the land, and by reference to which the original sales of lots were made, down to the last one, made only a few years ago,-all later maps being more or less accurate copies of the one made by Stone,-on every map now extant, or that has ever existed, there appears an open space along the river front entirely through the town, varying in width from perhaps 100 to 200 feet, with the irregular course of the stream, and extending, throughout its course, to the water's edge. The physical characteristics of this space, so far as they appear from the maps, are the same, except as to the irregularity in width, just referred to, and as to variance of direction...