73 So. 894 | Ala. | 1916
Lead Opinion
The bill of complaint is filed to prevent the obstruction by respondent of an alleged public roadway established by the joint agreement and action of complainant- and respondent between their lands in 1903, “with the express understanding on the part of each that thenceforward said strip should be taken and considered as and "for a boundary line between their respective parts of said quarter section, and as for a public road for themselves and the public at large.” It is alleged that this road has been continuously used as a public road by these parties and the general public, “without let or hindrance and as of right,” until its obstruction by respondent ih 1915. It is further specifically alleged that “said road was by the acts of complainant and defendant, as hereinabove alleged, thereby dedicated to the public as a public road, and was so accepted by the public by the user of the same as a public road.”
(1) On common-law principles, which still prevail in this state, a ro.ad may be effectually dedicated to public use either “verbally or by writing, by a single act or a series of acts, if clear and unequivocal, as indicating the owner’s intention.”—B. Land Co. v. Jenkins, 111 Ala. 135, 148, 18 South. 565, 568, 56 Am. St. Rep. 26. A single clear and unequivocal declaration by the owner may be sufficient for this purpose.—Forney v. Cal
(2) The dedication must of course be accepted by the public, but formal acts are not necessary, and acceptance may be effectively shown by a general user by the public. This user need not be for any particular length of time, but only long enough to show that the public are acting upon the theory of a public right resulting from the dedicatory act dr acts of the owner.—Stewart v. Conley, 122 Ala. 179, 27 South. 303; 1 Elliott on R. & S. (3d Ed.) § 178.
(3) The allegations of the amended bill sufficiently show the dedication of the road in question and its acceptance by the public. The bill shows that the road in question passes “through said quarter section * * * to a settlement road leading into a public road,” which latter road connects “Clear Creek public road and the Jasper public road.” One ground of demurrer makes the point that this road cannot be a public road, because, as shown by the bill, it does not connect with a public road at either end.
(4) To be a public road a road must, of physical necessity, be so situated and connected as to be accessible to the public. But it is .enough that the public have actual access to the road, whether by a mere neighborhood or settlement road or by some established public highway. The fact that this section of road is a cul-de-sac, or has no public road connection, may be moré or less persuasive as evidence to show that its use is in fact private and limited rather than public and general; but the test is public use, and not public road connections. — 1 Elliott on R. & S. (3d Ed.) §§ 2, 11.
We hold that the amended bill is not subject to any of the grounds of demurrer assigned.
Let the decree of the chancery court be reversed, and a decree here rendered overruling the demurrer to the bill of complaint.
Reversed, rendered, and remanded.
Rehearing
ON APPLICATION FOR REHEARING.
(5) It is now urged in behalf of the appellee that the dedication of land as a public road is not complete without acceptance on the part of the public by and through
In McDade v. State, swpra, there is quoted without comment the definition of a “public highway,” as stated in Kennedy v. Williams, 87 N. C. 6: “A public highway is one under the control of and kept up by the public, and must either be established in a regular proceeding for that purpose, or generally used by the public for twenty years, or dedicated by the owner of the soil and accepted by the proper.authorities.”
There was no evidence of express dedication of the soil by the owner, and it was used as a “turnout” from the regular highway only on isolated occasions. The decision in no way involved the question of acceptance of a dedication by the public, nor does the opinion so treat it.
In Harper v. State, supra, the same definition is quoted from the same case, but the opinion declares that: A dedication “must be completed by the acceptance of the public, which may be manifested from any public use, or by some corporate act, or acts of public officers, recognizing and adopting the highway as public.” (Italics supplied.)
In Lewman v. Andrews, supra, the same definition is again quoted, citing the McDade and Harper Cases. Again there was no question of dedication or acceptance, and the court remarks that: “The question, when a highway not established by law, or dedicated by the owner to public uses, becomes a public way when generally used by the public for that purpose for 20 years, is well settled by the decisions of this and other courts” — citing Harper v. State, supra; Forney v. Calhoun County, 84 Ala. 215, 4 South. 153; Steele v. Sullivan, 70 Ala. 589; and Hoole v. Atty. Gen., 22 Ala. 190. (Italics supplied.)
In Cross v. State, supra, the decision turned upon a construction of the federal statute (section 2477, Rev. St. U. S. [Comp. St. 1913, § 4919]), granting a right of way over public lands for the “construction of highways,” which was held to mean construction by authority of the laws of the state or territory in which the lands are situated. There was no question there of either dedication or acceptance. .
On the contrary, that acceptance of an express dedication may be sufficiently shown by a long public use merely has been settled beyond further controversy.—Steele v. Sullivan, 70 Ala. 589, 594; Forney v. Calhoun County, 84 Ala. 215, 4 South. 153; Moore v. Johnston, 87 Ala. 220, 6 South. 50; Harper v. State, 109 Ala. 66, 69, 19 South. 901; Stewart v. Conley, 122 Ala. 179, 186, 187, 27 South. 303; Moragne v. City of Gadsden, 170 Ala. 126, 54 South. 518. And so nearly all the authorities hold.—9 Am. & Eng. Enc. Law, 43; 13 Cyc. 465, Riley v. Buchanan, 116 Ky. 625, 76 S. W. 527, 63 L. R. A. 642, 3 Ann. Cas. 788, and note, 792; So. Pac. Ry. Co. v. Feris, 18 L. R. A. 510, note; Benton v. City of St. Louis, 217 Mo. 687, 118 S. W. 418, 129 Am. St. Rep. 561, and notes, 567, 609. In the Cyc. text last cited it is tersely and correctly said that: “An offer of dedication, to bind the dedicator, need not be accepted by the city or county or other public authorities, but may be accepted by the general public; to deny this would be to deny the whole doctrine of dedication.”
See, also, Carter v. Walker, 186 Ala. 140, 144, 6 South. 170.
As to whether or not such an acceptance will render the mu nicipal body liable for the care and maintenance of the highway, it will appear from the texts and notes above cited that the authorities are much divided. But with that question we are not now concerned.
Rehearing denied.