84 Ala. 224 | Ala. | 1887
The facts of this case, in our opinion, bring it fully within the principles settled in Steele v. Sullivan, 70 Ala. 589, and we might well affirm the decree of the chancellor on the authority of that case. The testimony set out in the record fails to satisfactorily show either a dedication of the alley in controversy by the owner, or its acceptance by the municipal authorities of the city of Mobile. A dedication of property to public uses will not be established by the courts unless the intention of the' owner to make such dedication unequivocally appears by clear and satisfactory evidence. — Forney v. Calhoun County, 84 Ala. 215. And, however long the user of property may be continued, if it appears to be referable as well to an implied license of the owner as to any assertion of adverse claim by the public, the courts will attribute it to the former and not to the latter source of origin.
The main reliance of the appellants to sustain the alleged dedication in this case are: (1) Certain oral declarations attributed to Charles P. Gage, who had been the owner of the property for over thirty years; and (2) a supposed adverse user by the public for over twenty years. The acceptance of the city is sought to be shown by certain maps made under the authority of the municipal officers, and by the erection of a gas light on Commerce street near the entrance of the open space or alley.
• To a proper understanding of the case it is important to keep in mind that, during the period of Gage’s alleged de
The deeds to the property adjoining and including the alleged alley repel the presumption of a dedication. In all the conveyances of this and adjacent property, running back from the commencement of this suit, in the year 1886, for over sixty years, there is nothing to indicate the recognition or existence of an alley any where in the entire square, within the compass of which the property in controversy is embraced. These deeds being of a solemn and deliberate character, and placed upon the public records, must be taken as so many affirmative declarations by the owners of the alley property in denial of the public right. This is emphasized by a deed made by Charles P. Gage, in 1885, in which he quit-claims to his partners in the ice house business an undivided half interest in thirty feet of ground just north of
There are other minor facts in tbe record, but taking all tbe testimony together it falls very far short of proving a clear and unequivocal intention on the part of tbe owner of tbe soil to dedicate tbe supposed alley in controversy to the public use.
Tbe evidence of an acceptance by tbe public also is not satisfactorily proved. Tbe maps of tbe city, which commence with the year 1837 and come down to 1887, some half dozen in number, seem to us rather to repel tbe idea of a recognition by tbe city authorities of tbe existence of a public alley at tbe place of tbe irregular opening in controversy. But one of these maps, prepared in 1868, seems clearly consistent with its existence. Tbe others are repugnant to it. Tbe erection of tbe gas-light post near tbe entrance unexplained is a circumstance of but little weight— no more in fact than tbe erection of a like one in front of a church or a private banking bouse. Tbe testimony in the case does not clearly show any act on tbe part of tbe city from which we can infer unequivocally an acceptance of tbe supposed dedication.
It is obvious, in view of what we have said, that there is no room in tbis case for any operation of tbe doctrine of prescription. Tbe occupation by user being permissive and not adverse, tbe lapse of time did not prejudice tbe title of tbe complainant.
These considerations vastly outweigh tbe alleged declara
Tbe bill is not framed witb tbe view .of claiming a private way of necessity in favor of complainants, which would entitle them to free access to and from their stable adjoining tbe alley way. Nor is tbe right to such a way sustained by tbe testimony, based, as it here is, on convenience rather than necessity. A dedication proper can be made only to public and not to private uses.
Tbe objections to testimony are not considered, as tbe result would be unaffected by them.
In our judgment, tbe decree of the chancellor dismissing the bill, is free from error, and must be affirmed.