| Ala. | Feb 15, 1908
This appeal is prosecuted from a decree overruling a motion to dismiss the bill for the want of equity. The bill is filed by the town of Headland, under sections 809-813 of chapter 13 of the Code of 1896, to settle the title to a lot of land known as the “Public Square,” in said town. It is conceded that the bill contains all the averments prescribed by the statute; but it is contended that, as the bill shows the complainant’s title was acquired by dedication, the extent of its interest in the Public Square is that of an easement — the right
The statute gives the right to file a. 'bill to settle title to any one in peaceable possession of lands, claiming to oivn the same. The easement set forth in this bill is a public one. “An easement, although only an incorporeal right, * * * is yet properly denominated an interest in the land, * * * and the expression ‘estate or interest in lands’ is broad enough to include such rights; for an easement must be an interest in or over the soil.”— 14 Cyc. 1139, notes 6 and 7. In Huyck v. Andrews, 113 N.Y. 81" court="NY" date_filed="1889-03-12" href="https://app.midpage.ai/document/huyck-v--andrews-3623783?utm_source=webapp" opinion_id="3623783">113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432, it is said: “An easement is an interest in land created by grant or agreement, expressed or implied, conferring a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or from the estate of another.” It cannot be denied, and is not denied, that the averments of the bill show a complete common-law dedication of the square to the public use. — Avondale Land Co. v. Avondale, 111 Ala. 527, 21 South. 318. The effect of the dedication is that the owner holds the technical legal fee for the donated use as long as that use continues (13 Cyc. 486, B), and the use may continue as long as the town continues in existence. It would seem from this that the easement is an interest in the land]
• Without further elaboration, we are clear in our opinion that the interest shown by the bill is such a one as falls within the protection afforded by the statute. We entertain no doubt that the municipality has the authority, and is the proper party, to maintain the bill for the purpose of preserving the rights of the general public in the Public Square. — City v. Demopolis v. Webb, 87 Ala. 659" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/city-of-demopolis-v-webb-6513609?utm_source=webapp" opinion_id="6513609">87 Ala. 659, 6 South. 408; People v. Holloday, 93 Cal. 241, 29 Pac. 54, 27 Am. St. Rep. 186.
The decree of the ehancelor is affirmed.
Affirmed.