56 So. 716 | Ala. | 1911
The bill is filed by appellant, the Highland Realty Company, and shows, in support of its prayer for relief, the following material facts: On January 27, 1888, the respondent, the Avondale Land Company, owned a large tract of land near the city of Birmingham, Ala., and, for the purpose of establishing a town or city, on that day it had this land surveyed, mapped, and platted, and the map, duly certified, adopted, and acknowledged, filed for record in the probate office. This map shoAvs that the tract was laid off into a great number of streets, avenues, alleys, blocks, and lots in an approximately regular way, as numbered and marked on the map. With reference to this map or plat, the Avondale Land Company has sold off lots, and improvements and dwellings have been constructed thereon. Among others, the respondent sold lot 7, in block 55, to A. P. Burns, in October, 1890. This lot fronts 50 feet on Thirteenth Avenue, which is perhaps 1,000 feet in length, and is intersected by 5 cross streets, which furnish outlets from it in various directions.
-The bill of complaint, according to its prayer, has a threefold purpose: (1) to have the attempted vacation, of the plat declared null and void, and canceled as constituting a cloud on complainant’s easement and right of way over and upon the avenues, streets, and alleys' created by said' plat; (2) to quiet complainant’s right as against the respondent; and (3) to enjoin the rsepondent from interfering with complainant’s right to the use and enjoyment thereof. The allegations of the bill are framed Avith a view to supporting the prayer for these several forms of relief. There is also language in the bill proper, and in the prayer, indicating a notion in the pleader’s mind that it might serve the purpose of a bill to quiet title. Respondent demurred to the bill, assigning numerous grounds, and the demurrer as a whole Avas sustained by the chancel
The effect of platting land and selling lots with reference thereto has been frequently declared by this court.. The general rule is that, when a landowner lays off his land into blocks and lots, setting apart and designating certain portions as streets, with a view to establishing a town, followed by a sale of lots with reference to a map defining and delineating the streets, this is a complete dedication thereof to the use of the purchasers and the general public. And, “such dedication and its acceptance vest in the purchaser of lots the right to have the streets referred to in the plan remain public, and deprive the owner of the right to obstruct
It will be observed that dedication in the manner above discussed creates rights, not only in the general public, but also in every purchaser of a lot within the platted tract. While these private rights, as appurtenant to a thus purchased lot, have been recognized in general terms by decisions of this court, their specific character and precise extent do not seem to have been determined. — See Sherer v. City of Jasper, 93 Ala. 531, 9 South. 584; Reed v. Birmingham, 92 Ala. 348, 9 South. 161; Evans v. S. & W. Ry. Co., 90 Ala. 58, 7 South. 758.
Without undertaking any extended discussion of the subject, we unqualifiedly approve the reason and justice of the rule as. stated by Mr. Elliott: “It is not only those who buy land or lots abutting on a street or rood laid out on a map or plat that háve-a right to insist upon the opening of the street or road; but, where streets and roads are marked on a plat, and lots are bought and sold with reference to the plat or map, all who buy with reference to the general plan or scheme disclosed by the plat or map acquire a right in all the public ways designated thereon, and may enforce
This right is not merely a right of personal passageAvay over the designated streets, or of access to and from the purchased lot, but is a right in the purchaser to have maintained, as against the dedicator, the designated scheme of public ways and places in its integrity, as it existed at the time of his purchase, and that all persons Avhatsoever may use them as occasion may require. - — Zearing v. Raber, 74 Ill. 409; Earl v. Chicago, 136 Ill. 285, 26 N. E. 370; Collins v. Land Co., supra. The right is wholly distinct from the right of the purchaser as against the public, or the right of the public as
It results that the decree of the chancery court must be reversed, and a decree here entered, overruling the demurrers to the bill.
Reversed, rendered, and remanded.