Witherall v. Strane, 3 Div. 715
| Decision Date | 06 September 1956 |
| Docket Number | 3 Div. 715 |
| Citation | 265 Ala. 218,90 So.2d 251 |
| Parties | Jack WITHERALL et al. v. Clayton C. STRANE et al. |
| Court | Alabama Supreme Court |
Hill, Hill, Whiting & Harris, Montgomery, for appellants.
Donald McKay, Montgomery, for appellees.
Clayton C. Strane and Ada D. Strane, appellees here, filed a bill of complaint in the circuit court of Montgomery County, in equity, to enjoin the respondents, appellants here, from blocking access to an alleged alley adjoining the complainants' property on the south and the respondents' property on the north. This appeal is by respondents from the final decree granting the relief prayed for.
The Stranes are the owners of lot 7, according to the plat of the Frances S. Powell Estate, as the same appears of record in the office of the Judge of Probate of Montgomery County in Plat Book 3, at page 77. This lot fronts approximately 52 feet on the east side of South Goldthwaite Street and runs back of equal width a distance of 218.5 feet. They went into possession of this lot in 1938 under a bond for title contract with the owner and have lived there continuously since that time. On September 21, 1950, they received a general warranty deed from the owner conveying the lot to them. This deed contains a recital that the grantor 'does hereby release, remise, quitclaim and convey unto the said Clayton C. Strane and Ada D. Strane, their heirs and assigns, all of its right, title, interest or claim in and to any alleys, passageways or other easements in any way joining or serving the real estate above described'.
On February 5, 1948, there was filed in the office of the Judge of Probate of Montgomery County a plat of the B. P. Crum property adjoining the Stranes' lot on the south. Said plat is recorded in Plat Book 9, at page 23, and consists of lots 1 through 7. Along the north side of said plat there is shown a strip of land 8 feet wide extending east and west the entire length of the plat, a distance of 280 feet east of South Goldthwaite Street. It is this strip which is in controversy. The following drawing, not to scale, is for a better understanding of the situation:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
It appears that houses were built and occupied on the lots in the Crum plat for many years prior to the recording of the plat. And, as we understand it, there is no question about Judge Crum's ownership of all of the property embraced in the plat at the time of its recording, including the 8-foot strip, unless there had been acquired by the public, prior to the recording, a prescriptive right to the use of the strip as an alley or other public way. A reference to the plat will show that no designation is given to the 8-foot strip as being an 'alley', 'public alley', 'private alley' or otherwise, nor is there anything on the plat indicating any specific dedication, use or reservation of said strip.
It further appears that the lots in the Crum plat have been sold to the several respondents and that the deeds contain a provision giving to each respondent 'the right of ingress or egress in and over the open court in front of said property and leading to Goldthwaite Street and also in and over an 8-foot alley in rear of said property.'
On March 19, 1951, all of the owners of the lots in the Crum plat executed an agreement having for its purpose the vacation of said 8-foot strip as an alley, the agreement providing that each property owner would acquire title to that portion of the strip lying adjacent to his lot. Although it appears that said agreement precipitated this litigation, neither its validity nor its effect is now before us.
The Stranes contend that the 8-foot strip is a public alley, first, by reason of its use by the public as an alleyway for the prescriptive period of twenty years or more, and, second, because it was dedicated as a public alley by the recording of the Crum plat and the selling of lots with reference thereto.
We have carefully examined and considered the evidence and have little difficulty in concluding that it is not sufficient to support a finding that the strip gained status as a public alley by prescription. It appears from the evidence that for at least 17 years there have been obstructions across the strip that have blocked its use as an alley or other public way. And such evidence as there is concerning its use by the public prior to that time is inconclusive and unimpressive. Clearly, it is not sufficient to show an adverse use by the public for the prescriptive period of 20 years or more.
Whether a dedication to the public has been effected by the recording of the plat and the sale of lots with reference thereto presents a more difficult problem.
We do not understand appellees to contend that there has been a statutory dedication of the alley, but rather that there has been a common-law dedication. The fact that there are statutory methods for dedicating lands to public use does not prevent a common-law dedication. East Birmingham Realty Co. v. Birmingham Machine & Foundry Co., 160 Ala. 461, 473, 49 So. 448.
There is a line of cases holding 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.' Lybrand v. Town of Pell City, 260 Ala. 534, 538, 71 So.2d 797; Talley v. Wallace, 252 Ala. 96, 97, 39 So.2d 672, 673; Nashville, C. & St. L. Ry. Co. v. Hulgan, 219 Ala. 56, 57, 121 So. 62, and cases there cited. In Smith v. Duke, 257 Ala. 86, 87, 57 So.2d 550, 551, the principle is stated as follows: 'Nothing else being shown, it is unquestionably true that the platting and recording of the plat showing the park area in question and the sale of lots referring to that plat constitute an irrevocable dedication of the area marked 'park,' except as may be authorized by statute.' (Emphasis supplied.)
It is our view that the stated principle is not...
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Sam Raine Const. Co., Inc. v. Lakeview Estates, Inc.
...road. In Alabama, dedication of a public way may be accomplished by a statutory proceeding or, common law dedication. Witherall v. Strane, 265 Ala. 218, 90 So.2d 251 (1956). A common law dedication consists of acts indicative of the intent of the owner to dedicate property to a public use a......
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O'Rorke v. City of Homewood, 6 Div. 553
...the dedicator, rests upon the party asserting the dedication. State ex rel. Davis v. Meaher, 213 Ala. 466, 105 So. 562; Witherall v. Strane, 265 Ala. 218, 90 So.2d 251. To establish a dedication, the clearest intention on the part of the owner to that effect must be shown, and the evidence ......
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...found that an unlabeled space on a plat indicates a reservation in the property owner rather than a dedication. See Witherall v. Strane, 265 Ala. 218, 90 So.2d 251 (1956); Earle v. McCarty, 70 So.2d 314 (Fla.1954); Dallas v. Leake, 300 S.W.2d 135 (Tex.Civ.App. 1957); Miller v. Fowle, 92 Cal......
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...a dedication rests upon the party asserting it. State ex rel. Davis v. Meaher, 213 Ala. 466, 105 So. 562 (1925); Witherall v. Strane, 265 Ala. 218, 222, 90 So.2d 251 (1956); O'Rorke v. City of Homewood, 286 Ala. 99, 104, 237 So.2d 487 (1970). Likewise, acceptance of a dedication must be pro......