City of Mobile v. Fowler

41 So. 468 | Ala. | 1906

ANDERSON, J.

The bill in this case'can only be maintained upon the theory that the respondents are ■wrongfully closing or obstructing complainant’s highway. The question therefore arises: Was the strip in controversy a public highway or a part thereof, when inclosed by’ the respondents? In order for the-complainant to obtain relief, it is incumbent upon it to show that there was a dedication of this strip by the owner and an. acceptance. Acceptance of the dedication may be either by a formal acceptance by the municipal or other authorities or may be inferred by long public use. -So, too, would the- platting of land by the owner, and dividing it off by streets and avenues, and selling lots with reference to1 .a map defining and delineating the streets, amount to a complete dedication of the streets thereupon disclosed. — Reed v. Birmingham, 92 Ala. 339, 9 South. 161; Evans v. Savannah & Western R. R. Co., 90 Ala. 54, 7 South. 758.

There is no evidence in this case of a formal dedication and acceptance of the street in controversy. Nor was the-fact that Georgia avenue appeared oh a map which was referred to in two of the deeds equivalent to a dedication. On the other hand, every conveyance introduced in evidence which mentions a map negatives the idea that this land was a part of a public street or that any lands were conveyed upon the strength of being-bounded by a public street or avenue or a part thereof. The witness Gazzam testified: “My father dedicated Georgia avenue as thirty feet.” This was not sufficient to show a dedication and acceptance of the land in controversy-. Nor does the fact that this land -formed.a part of the street before Kimball fenced it in show- that it was used by the public a sufficient length of time1 to become a public highway Mcdade v. State, 95 Ala. 28, 11 South. 375), or that it was so used by the public as to amount- to an acceptance of the dedication, if one. was made’. There may be express or implied dedications, but in either event there must be an acceptance, in order to make the dedication complete and irrevocable.

There is some evidence that the avenue was wider than it now is; but there is no evidence to show that this particular part, or the other part' even, was used and kept up as a public highway and for aught we know, it was a private way when fenced in by the respondents and by Kimball. It may be that there is a public highway now being kept up by the public, known as “Georgia Avenue”; but there is no proof that the part in dispute, though included within the 60 feet intended to be dedicated, was accepted or used as a part of a public highway. “It does not necessarily follow, because a part of the offer has been accepted, that the whole has been. If it is evident that only a part of the land dedicated is needed, or is of value to it, the acceptance will be held to extend only to the part improved or occupied by the public, and which has been clearly recognized as a public highway.” — 9 Am. & Eng. Ency. Law, 50; Alton v. Meenwenberg, 108 Mich. 629, 66 N. W. 571. There is no evidence that the strip in question was ever accepted, or that Georgia avenue had ever been used as a public highway, before this strip was detached.

The appellant contends that the general denial of paragraphs 2 and 8 of the bill is insufficient to raise an issue, and that the facts therein averred should be considered as admitted. We do not understand that the charges made in said paragraphs are prima facie within the knowledge of respondents. — Moog v. Barrow, 101 Ala. 209, 13 South. 665; Smilie v. Siler’s Adm’r, 35 Ala. 88; Grady v. Robinson, 28 Ala. 289. If Georgia avenue was opened as a street .60 feet wide and used by the public it was as easy for complainant to prove the fact as.it was for the respondents to negative the charge,, and a general denial was sufficient to require proof of the averment.

The decree of the chancellor is affirmed.

TrsoN, Simpson, and Denson, JJ., concur.