Stewart v. Conley

122 Ala. 179 | Ala. | 1898

TYSON, J.

— The bill in this case was filed by appellant to enjoin the appellee from enclosing by means of fences and gates, a street or public highway between their respective lots. The bill alleges a dedication to public use of this highway by the husband of respondent and its general use by the traveling public as a street or road.

It appears from the answer that the respondent as the widow of her husband is and has been in possession of the house and lot occupied by him at the date of his death in 1892 as a homestead, set apart to her by the probate court of Talladega county. That in 1872 her husband purchased the strip of land upon which the street or public road now in dispute is located, and that she had erected fences at each end of this road or street and had erected one gate and was in the act of erecting the other across the road when the writ of injunction was served upon her.

It appears from the testimony that during the year 1872, respondent’s husband built the two fences upon each side of this street or road, leaving this lane, between the lot upon which his dwelling was situated and the lot owned by him and now owned by complainant, and these fences have remained in the same place upon which they were built during all these years. It is also beyond cavil that since this road or street in controversy was opened in 1872 it has been used by the public as a highway. That carriages, wagons, pedestrians and persons on horseback traveled over it, and especially was this true of those people living in that section of the county south of the railroad who attended the Baptist church, and l.h ose going to a mill situated north of the railroad, and those who desired to go from the Georgia road to the Oxford road and vice versa; the two public roads more traveled than any others in that vicinity.

The single question is presented, whether there was an express dedication by Conley, respondent’s husband, when he opened this street or road, of it to the public use. The whole theory of the defense was that the use by the public of it was permissive and that no implied dedication can be inferred because of certain interruptions of the public by private uses made of it by Conley during his lifetime, which however are not clearly established by the testimony. In other words, it is contended by appellee that in order for complainant to succeed the evidence must establish a continuous and exclusive use by the public for a period of twenty years before a presumption of dedication will arise. Where an implied dedication is relied upon this theory is undoubtedly correct. But where the evidence shows an express dedication, then the rights of the public are not dependent upon its use for any given léngth of time, but are dependent upon acceptance by it of the proposed dedication — Elliott on Noads and Streets, p. 127; Steele v. Sullivan, 70 Ala. 589; Harper v. The State, 109 Ala. 66; McDade v. The State, 95 Ala. 30; 9 Am. & Eng. Encyc. of Law, p, 362, and note.

. We have then growing out of the question propounded above, as to whether Conley made an express dedication of the street or road, to ascertain from the evidence, whether he made with any one an agreement or contract by which he was to either open it or leave it open for the use of the traveling public, and if so was there an acceptanee of it, either express or implied, by the town authorities of Munford as then constituted, or the public? That a verbal agreement or contract to that effect was effectual to bind him, if he made it, can hardly be questioned. — Steele v. Sullivan, supra; 9 Am. & Eng, Encyc. of Law, (2d ed.), p. 22; Elliott on Roads and Streets, 91. Nor does the agreement or contract necessarily have to be made with the town or county authorities having charge and control of the public streets or roads of the town or county; it is sufficient if, in pursuance of such agreement, the owner sets it apart to the public and formally declares that such is his intention. Nor is it material that there should be an incorporated municipality to control and direct the use of the land dedicated, nor will a failure to elect officers of the municipality or a failure of the citizens living in an incorporated town to continue the exercise of the political powers conferred upon the municipality by its charter affect the validity of the dedication. — 9 Am. & Eng. Ency. Law, (2d ed.), p. 34, note'2; Horn v. Common Council of Dadeville, 100 Ala. 199; Elliott on Roads and Streets, 88. If such an agreement is found to exist and there was an acceptance the dedication was completed and became irrevocable, although the dedication, as originally made, was voluntary in the sense of being made without any valuable consideration. — Forney v. Calhoun County, 84 Ala. 215, amd authorities there cited. Certainly if the owner made ilie dedication under a contract for a valuable consideration, notwithstanding- the consideration moving to him was from a third person and the promise was made to this third party for the benefit of the town or public at large, the principle denying to him this right of revocation, after the acceptance by the toAvn or the public of the dedication, would rest, if possible, upon broader and more just reasons than Avhere the dedication Avas voluntarAu — Douglass v. City Council of Montgomery, 118 Ala. 599, 24 So. Rep. 745. That the toAvn or public after an acceptance of the contract made for its benefit, though made by a third person Avho at the time Avas a citizen of the municipality and, of course, one of the members of the public at large, and especially interested in the subject matter of the contract as an individual and a citizen, could have required the street to be kept open after it was opened by the owner in accordance with this agreement, we entertain no doubt. After an owner of the soil opens a street or road for the use of the public under a verbal agreement to do so, and there is an acceptance of it by the municipality, it becomes an executed contract and cannot be violated by him or the municipality so as to deprive the public of its right to the use of it as a public highway. — Douglass v. City Council of Montgomery, supra.

Applying these principles to the case under consideration it is unnecessary to enter into a lengthy discussion of the testimony of the numerous witnesses, which is voluminous, but suffice it to say that we find the fact undisputed, that Conley, respondent’s husband, just prior to the opening of the street or road, entered into a contract with A. J. Street by which he obligated himself for a valuable consideration to open it for the use of the traveling public. This uncontroverted evidence establishes as a part of the agreement that A. J. Street and Camp were to continue this street to what is known as the Georgia road, which was done by them. The purpose of the agreement being in this -way to connect the two leading public roads, to-wit, the Georgia road and the Oxford road by means of this street or road. This was done, as was said above, during the year 1872 or 1873 and Conley built his fences on each side of this street, leaving it for public use.

The only remaining question is, was there an express or implied acceptance by the municipality or public of it as a public street or highway to complete the dedication? No formal acceptance is required of the municipal authorities .such as by resolution adopted by the town council or an order entered upon the records of the commissioner’s court. “An implied acceptance arises in cases where the public authorities have done acts recognizing the existence of the highway and treating it as one of the public ways of the locality. When control of a way is assumed by the authorities representing the public corporation, an acceptance will be implied. This assumption of control may be evidenced in many ways, but, in order to constitute an acceptance it must be such as could only be rightfully exercised over a highway. * * * One of the principal indications of acceptance is that of improving or repairing the road or street. * * * And it an acceptance may be implied from a general and long-continued use by the public as of right.” — Elliott on Hoads and Streets, pp. 115-117.

It will be well here to observe that this long continued use by the public need not be of the same period of time as is required when the dedication by the owner is sought to be established by user alone. For, when an acceptance is shown by corporate acts or otherwise, and “the intention to dedicate is clearly manifested, the dedication as against the owner becomes effectual as soon as it is accepted by the public, and the question of time is not at all material.” — Elliott on Hoads and Streets, p. 127; 2 Dillon on Munic. Corp., § 638. It only becomes material in this case so far as it tends to prove an acceptance by the public of the street dedicated by Conley under his contract with Street in connection with the other evidence.

It also appears from the uncontroverted testimony of A. J. Street, that many years ago and prior to 1884, that he was at one time intendant of the town of Munford and as such had one Kilpatrick, who was under him, to work this street as one of the streets of the town. And a number of witnesses examined by complainant testify to the working of this street by the public road hands; this, however, is controverted by a number of witnesses examined by the respondent. A number of witnesses testify, without dispute, to declarations made by Conley within a few years after he made the dedication as to its being a public street or road. It is true that several witnesses for the respondent say, that within a short time before his death, he claimed the street as his private property. But considering the entire testimony, we are of the opinion that there was an acceptance by the public of his dedication long before he made, the latter declaration or attempted to assert any right to appropriate it to his private use. The dedication being completed, no act or declaration of-his, after the acceptance, could destroy the rights acquired by the public to use it as a public street or road.

It follows that the decree of the chancery court dismissing the bill must be reversed and annulled. And this court will render a decree granting the relief prayed for in complainant's bill, reinstate the injunction and make it perpetual.

Reversed and rendered.