Cochran v. Purser
160 Ala. 540
Ala.
1909
Check Treatment
ANDERSON, J.

There is no doubt as to the existence of an alley between the building of the complainants and the Washington Hotel before it was torn down. There is no proof, however, of any dedication of said alley by any one unless a dedication is to be concluded by a prescriptive right or user for 20 uninterrupted and consecutive years. This court stated, upon the former appeal of this case (152 Ala. 354, 44 South. 579) the rule as to the presumption of a dedication, and that the user of the alley had to continue uninterrupted, for 20 years before the presumption of a dedication would arise. The record presents a good deal of evidence as to the existence of this alley since 1836, and some of the deeds confine the boundary of the respondent’s lot to said alley, while the one executed by Miller in 1879 conveys the alley with the lot, but without warranty as to said alley. There is no proof, however, of the uninterrupted and continuous use of this strip as- an alley by the public for 20 consecutive years, and especially during the past 30 years. The witnesses Neijson, Cribbs, and Fitts testify that it was open at intervals from 1836 to the time of testifying, yet they do not, singly or collectively, show an unbroken and continuous use of same by the public for 20 consecutive years. Indeed, the only use shown of said alley was by the occupants of the adjoining building, rather than the general public. It may have been open, and yet like other vacant property, *543gone over by some, and not converted into a public highway. Cribbs testified to the alley from 1848 to 1860, Neilson from 1836 to 1846, and Fitts to several years before the war and when he was a boy. Walker testified that it was open and used when he was a boy before the war, and that it was open and unobstructed from 1866 until the erection of the steps to the Washington Hotel. He does not account for its condition between Avhen he was a boy before the Avar and 1866. Iiyan, one of the complainants? Avitnesses, admitted that it was fenced as far back as 1874 or 1875, and nearly all of the complainants’ Avitnesses admit that the alley was closed or obstructed most of the time since 1879. On the other hand, the respondent shoAvs color of title and possession since 1879, and negatives any but a mere permissive use of the alley by any one during that time, and shows that it Avas obstructed by a stairway all of this time, and was actually closed by a fence or billboard most of the time. Frank L. Moody testified that there was a fence across the alley before they bought the property in 1879, and the fact that Miller included the alley in his deed, whether with or without a warranty, is a circumstance tending to show that he did not acquiesce in any claim of any one to the alley as a highway or private way. Moody also says that the fence was kept up by him and the respondent, as best they could, and that the gate was put there at the request of one of complainants’ grantors and predecessors in possession, and as a matter of accommodation, that said predecessor, Brady, got his permission to place the billboards across the alley; and these facts are not denied by Brady, who testified as a witness for complainants. The proof also shows that, Avhile the alley was open at intervals between 1836 and 1879, it Avas closed most of the time since 1879 by the respondent or her agent, and that the use of same by any one else Avas permissive or passive rather than ad*544verse. We think that the proof is not sufficiently satisfactory to show such a use of the alley as will create the presumption of a dedication to the public of this strip as a highway. Indeed, there is no proof that the city used or treated it as such except to remove garbage therefrom, and which was doubtless done from all parts of the city, whether in the highways or upon private premises. The marshal did repair respondents’ fence a few years ago, but did so at the request of one of the complainants, who seems to have been as much interested in keeping the alley closed as the respondent. Nor do we think that the complainants have acquired a right of way by prescription, aside from the public generally. They bought the property in 1902, and the proof shows that the alley has been in the possession and control of the respondent since 1879, and that the use of same by complainants’ predecessors since that time was not only permissive and at intervals, but in recognition of the respondent’s right to terminate the use of same. — Stein v. Daham, 96 Ala. 481, 11 South. 597.

The decree of the chancery court is affirmed.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.