Webb v. City of Demopolis

95 Ala. 116 | Ala. | 1891

McCLELLAN, J.

Other questions will be discussed and decided in the progress of this opinion, but in the view we take of the case the inquiries of paramount and determining importance are three only : First: Did the original proprietors of the land on which the city of Demopolis was subsequently built dedicate to the uses of the public as a street that part of said land which lies between certain numbered lots in the plat or plan of said city and the Tom-bigbee river, now known as Arch street? Second: Did such dedication, assuming it to have been efficaciously made, extend to the water-line at all stages of the river in such sort as to invest the inhabitants of Demopolis, and the public generally, with the right to pass, in their persons and property, from said street on to the river, and from the river on to the street, without toll, charge or hindrance ? Third: Has this public right, assuming its original existence, been lost, so far as it pertained to that part of said street which has been appropriated by the respondents, by reason of the character, extent and duration of their possession, occupancy, and use thereof ?

The land in question, and which now constitutes the city of Demopolis, was purchased by George S. Gaines, acting for himself and certain associates, in the year 1819, from the United States ; and he received patents therefor, which were “intended by him, and recognized by him, as being issued to him” for a company consisting of himself, William A. Cobb and others. This company had been formed for the purpose of purchasing said land at the Government sales, soon thereafter to be made, with a view to, and for the purpose of, laying off and establishing a town thereon, and selling lots therein. The land was exceptionally well located for the establishment and upbuilding of a town under then existing conditions of commerce and transportation, being at a high point on the Tombigbee river, a navigable stream, emptying into the Bay of Mobile, just below its confluence with the Black Warrior river, another navigable stream. And it was doubtless these considerations which not only led to the selection of this site, but which also gave birth to the great expectations, indicated by the handsome prices at which lots in the embryo city were sold, which were indulged as to its future — expectations which probably only failed of full realization in consequence of the application of steam as a motive power to inland transportation, whereby the importance of water-ways was greatly lessened. Be that as it may, it is certain the chief inducement to the location of Demopolis at this point lay in the facilities for commerce and. transportation which the river afforded, and doubtless this consideration was put prominently forward in the efforts made by the company to sell its lots in the town. .The river thus being a leading inducement to the location of the town and to the purchase of lots therein, it would have been singular indeed if the proprietors of the site had not made provision looking to the utilization of this water-way by those who had been induced in great part to settle there, because of the facilities for transportation offered by it, and the public at large, by so laying out the town as to afford easy access to the river from the town, and vice versa. They did not fail to make such provision, but left the whole river front of the city open, unobstructed, and free of access. It is not controverted at all that on every plan, plat or map of the town, from the first one made by Stone soon after the purchase of the land, and by reference to which the original sales of lots were made, down to the last one made only a few years ago — all later maps being more or less accurate copies of the one made by Stone — on every map now extant, or that has ever existed, there appears an open space along the river front entirely through the town, varying in width from, perhaps, one hundred to two hundred feet, 'with the irregular course of the stream, and extending, throughout its course, to the water’s edge. The physical characteristics of this space, so far as they appear from the maps, are the same, except as to the irregularity in width, just referred to, and as to variance of direction incident to the tortuous course of the river, as are incident to the many other vacant spaces shown by the maps; and these other spaces are admitted to be streets of the town. In other words, one looking at any map of the town which has been brought to light on this trial, with a view to ascertaining the location of the streets, would inevitably conclude that this unplatted margin along the river was one of those streets. And such, we have no doubt, it was intended to be by the Demopolis Town Company, when the site was laid off into public squares, streets and lots, for the purposes of sales then contemplated and afterwards made by the company. This, we think, the evidence demonstrates; and not only this — not only that this margin was laid off as, and intended to be a street — but also that this street ~was in the outset named and called “Arch Street.” Mr. Geo. G. Lyon testified, that he had seen the original plan or map made by 0. C. Stone and adopted by the Commissioners of the Demopolis Town Company in 1819, by reference tó which the first sales were made, and from which all other maps of the town were taken, more or less directly; and that on this original map the margin or unplatted space along the river front was designated as “Arch street;” .and that he lived on this street for ten years, from 1841 to 1851, and always heard it called “Arch street.” Mr. A. M. McDowell appends to his deposition a map made bjr C. C. Stone, and which the witness believes to be the original map above referred to — as to which, however, there is at least grave doubt — and this old map shows, as do all other maps, an open margin along the entire river front, which presents the appearance of a .street; and this margin at one place is marked “Water street,” and at another place, in a hand-writing differing from that elsewhere shown on the map, and from the inscription “'Water street,” it is marked “Demo street.” This inscription appears to have been made at a later date than any other on the map. This witness testifies, also, that the initial point of the survey of the town of Demopolis was originally marked by an oak tree which stood in this street; that this tree had been removed, and he himself had placed an iron shaft where it stood, for the purpose of preserving a memorial of the starting point of the survey. And the location of this tree is marked and identified on the map which he exhibits, by a star placed near the intersection of Eulton street with this street on the bank of the river, and referred to in the notes written on the margin of the map thus: “*Post Oak, bears S. 12 E., 8 links (†)”

But the most satisfactory evidence that the proprietors of the town site laid this margin off as a street, intended if to be a street, and named it “Arch street,” is found in the record of the proceedings, of the commissioners who constituted the managing and governing board of the Demo-polis Town Company. It appears from these records that said commissioners, at a meeting held on Tuesday, June 18, 1819, “Resolved, That the plan of the town of Demo-polis be as follows : The streets to run due north and south on a true meridian variation, seven degrees and forty-five minutes east, and to be crossed by streets running due east and west at right angles. The squares to contain two acres of land, exclusive of an alley of twelve feet wide running from north to south. The streets of the town to be sixty feet, excepting Eulton street running from east to west, one hundred feet; Capital street, from east to west, likewise one hundred feet; Market street, running from north to south, one hundred feet. Resolved, that one square or block of lots containing .eight m number, bounded, north by Capital street and west by Market street, be reserved for tbe erection of such buildings as the commissioners may hereafter determine on. The plan of said town is herewith filed, which is made a part of this record, signed by the commissioners as the true plan of the town of Demopolis; by which plan the town commences at that point tuhere Fulton street intersects AB.CH STREET, which said point is designated by a post-ocQe tree, in or about twenty inches in diameter, which said tree stands south of saicl point of intersection or corner twelve degrees east, and distant eight links from said corner, marked with the following letters and characters: * lettered 8. 12 E. 8 Lie., which said point is on the original survey of the United States Government of fractional section No. twenty-four, and is opposite the crevice in the bank of the Tombigbee Biver.” The italicization in the foregoing excerpt is ours. It has been employed for the purposes of giving emphasis to the facts, that the plan or map adopted by the commissioners was signed by them, while the map exhibited by McDowell is not so signed; that the margin of the river was laid off on the original plan as a street, and called and named thereon “ Arch street,” and not “Water street,” or “Demo street,” as appears from McDowell’s map; and that the tree which marked the initial point of the survey was located on “Arch street,” and opposite “the crevice in the bank of the river,” which latter fact is shown also by McDowell’s map; all of which leads to the conclusion, that the map exhibited by McDowell is not the original plan or map adopted by the commissioners, but a copy thereof, and accurate in so far as it shows that 'the land between the numbered lots and the river was intend to be, and in fact was, laid off as a street, but inaccurate in so far as it gives the name “Water” or “Demo” to this street. We attach no importance to the fact that the commissioners, in the resolutions quoted, did not state either the direction or width of Arch street. It ran neither north and south, nor east and west, but arched with the bend of the river, and hence doubtless its name. Its width likewise varied with the meanderings of the stream, and hence it could not be said to be any particular number of feet wide. But, however irregular its course, and however variant its width, this record demonstrates beyond all doubt to our minds that it was laid off as a street in the original plan of the town ; that as such it extended along the entire river front of the town, and that throughout its length it was named, known and called “Arcb street.” So far tben as tbat could be accomplished by laying off an area in tbe plan or map of a town baying tbe appearance of a street on snob map, intended by tbe proprietors of tbe town-site to be,a street, and marked on said plan as a street with a name appropriate thereto, this “Arcb street” in the town of Uempolis was dedicated to tbe public as a street, by tbat name, on June 18, 1819, when said plan was adopted and promulgated “as tbe true plan of the town of Demojwlis.”

One thing more, and only one thing, was necessary to complete tbe dedication so as to make it forever irrevocable. That one thing was tbe sale and conveyance of lots, or even tbe sale and conveyance of a single lot, in tbe town of Demopolis, by reference to and according to tbe survey lines of tbe plan or map which bad this street marked upon it. By such sales, or one such sale, every line of tbe survey which served to mark those parts of tbe site which were intended to be reserved from sale for tbe use of tbe public became unalterably fixed — dedicated to tbe public for all time.— Webb v. Demopolis, 87 Ala. 569; Evans v. C. & W. Railway Co., 90 Ala. 54; Reed v. Mayor & Aldermen of Birmingham, 92 Ala. 339; Elliott on Roads and Streets, p. 89. It is uncontroverted tbat lots were sold and conveyed according and by reference to this plan, soon after its adoption, and from time to time since tben. Not only so, but tbe dedication of tbe streets of Demopolis, and among tbe rest Arcb street, was accepted in tbe most formal manner by an act of tbe legislature of Alabama, incorporating tbe town of Demopolis, approved December 15, 1821, in which it is provided : “Tbat all tbe tract of land included in tbe plan of said town [tbe plan adopted by tbe commissioners in 1819] be, and the same is declared to be, tbe limits of said town in conformity to said jalan. ” — Elliott on Roads and Streets, 85. So tbat there can be no doubt tbat there was both a common-law and a statutory acceptance of tbe dedication of tbe street.

As to tbe extent of this dedication, or rather as to tbe limits of tbe street as dedicated, with reference to tbe river, there can not, we think, be two opinions so far as tbe question depends ujaon tbe intention of tbe proprietors of tbe soil. In view of tbe considerations which led to tbe establishment of a town at tbat point, tbe advantages expected to accrue to tbe inhabitants thereof from tbe facilities for transjDortation and commerce, which tbe juxtaposition of this water-way offered, and tbe necessity to utilize and conserve these advantages by affording tbe public ready and unobstructed access to tbe river, — considerations to wbicli we have before adverted, — -and in view of tbe fact tbat, as appears from all tbe maps, no disposition of any part of tbe river front to private uses was contemplated by tbe founders of Demopolis and tbe dedicators of tbis street, tbe conclusion can not be resisted, tbat tbey intended tbat tbis street should embrace all tbat part of tbe site of tbe town wbicb lay between tbe numbered lots and tbe water’s edge at all stages of tbe river. In no other way could their manifest purpose of providing a common highway, not only along, but to and on tbe river, be effectuated. And tbis purpose must be held to have been effectuated, if they, tbe proprietors of tbe soil, bad tbe right to dedicate tbe land to low-water mark, or, in other words, if their proprietorship extended to the low-water line.

We can not concur in tbe argument of counsel, to tbe effect tbat -whether a grant of tbe United States to land lying on a navigable stream within tbe limits of a State extends to high or to low-water mark, or to tbe middle thread of tbe stream, is a Federal question, upon wbicb tbe Supreme Court of tbe United States is the final arbiter. Tbis is not tbe law. On tbe contrary, no proposition of law is more firmly settled, than tbat tbis is a matter purely within tbe control of tbe several States, and determinable in all instances according to tbe rule in respect thereto which has been established by statute, or by adjudications of courts of last resort or otherwise, by tbe States themselves. And whatever rule has been so established is said to be tbe common law of tbe State where tbe land is situated, and as such will be enforced in all jurisdictions. Tbis doctrine proceeds on tbe theory, tbat inasmuch as tbe State owns in its sovereign capacity tbe soil under tbe waters of navigable streams, it is within tbe State’s competency to determine to what extent its prerogatives to lands so submerged shall be exercised, and to what extent such prerogative shall be abated, or not asserted and exercised, in tbe sense of admitting individual proprietorship in such lands, subject only to those rights of eminent domain over tbe waters and tbe lands covered thereby wbicb are inseparable from sovereignty. And upon this theory it is universally held, tbat a grant by tbe United States of land lying in a State, and abutting on a navigable stream, will extend to high-water mark, or low-water mark, or to tbe middle of tbe stream, according to tbe rule wbicb tbe particular State has adopted as to tbe construction and extent of such grade. Tbe late Justice Bradley in a recent case, after stating tbe doctrine of the State’s proprietorship in the banks and- shores of navigable streams and waters, proceeds : “This right of the States to regulate and control the shores of tide-waters, and the land under them, is the same as that which is exercised by the Crown in England. In this country the same rule has been extended to our great navigable lakes, which are treated as inland seas ; and also, in some of the States, to navigable rivers, as the Mississippi, the Missouri, the Ohio; and, in Pennslvania, to all the permanent rivers of the State; but it depends on the law of each State to what waters and to what extent this prerogative of the State over the lands under water shall be exercised. In the case of Barney v. Keokuk, 94 U. S. 324, we held that it is for the several States themselves to determine this question, and that if they chose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. That was a case which arose in the State of Iowa, in regard to land on the banks of the Mississippi, in the city of Keokuk; and it appearing to be the settled law of that State, that the title of riparian proprietors on the banks of the Mississippi extends only to ordinary high-water mark, and that the shore between high and low-water mark, as well as the bed of the river, belongs to the State, this coiirt accepted the local law as that which was to govern the case. The same view was taken in quite a recent case with regard to titles on the Sacramento River, under the law of California. — Packer v. Bird, 137 U. S. 661. On the east side of the Mississippi, in the States of Illinois and Mississippi, a different doctrine prevails, and in those States it is held that the title of the riparian proprietor expends to the middle of the current in conformity to the rule of the common law, that the beds of all streams above the flow of the tide, whether actually navigable or not, belongs to the proprietor of the adjoining lands. — Middleton v. Pritchard, 3 Scammon, 510; Morgan v. Reading, 3 Sm. & Mar. 366 ; St. Louis v. Rutz, 138 U. S. 226. In the one case, that of Iowa, the Government grant was held to extend only to high-water mark; and in the other cases, of Illinois and Mississippi, it was held to extend to the centre of the stream; being governed in both cases by the respective laws of the States affecting the grants of lands bordering on the river. In the one case, the State, by its general law, does not allow the grant to enure to the individual further than to the water’s edge, reserving to itself the ownership and control of the river bed; in the other cases, the States allow tbe full common-law effect of be grant to enure to tbe grantee.” — Hardin v. Jordan, 140 U. S. 371, 382-3.

There was in tbis case a dissenting opinion by Brewer, J. concurred in by Gray and Brown, JJ. Tbe dissent, however, was not on tbe point we bave been considering, but from tbe conclusion of tbe majority of tbe court as to wbat was tbe rule of law in tbis connection in Illinois, respecting lands under tbe waters of lakes and ponds; a different rule, these judges conceived, being established in that State as to such lands, from that which obtained there as to lands under running water. And on tbe point we bave here, Mr. Justice Brewer said : “Beyond all dispute, tbe settled law of tbis court, established by repeated decisions, is, that tbe question of bow far tbe title of a riparian owner extends is one of local law. For a determination of that question tbe statutes of tbe State, and tbe decisions of its highest court, furnish tbe best and tbe final authority.” — Hardin v. Jordan, supra, p. 402. And tbe same doctrine is clearly announced in tbe still later case of Kankanna Water Power Co. v. Green Bay & Mississippi Canal Co., 142 U. S. 255; and there can be no question of its soundness in principle, and thorough establishment by tbe authorities.

Whether tbe grant made by tbe United States to George S. Gaines for the Demopolis Town Company, and which enured to its benefit, of tbe land upon which tbe city of Demopolis now stands, extended to ordinary high-water mark, or to tbe line of the low water, or to tbe middle thread of tbe Tombigbee river, depends, therefore, upon tbe rule of property in tbis respect, which Alabama has adopted. The rule which tbis State has adopted and declared through tbis court is, that a grant by tbe United States to land bordering on a navigable river includes tbe shore or bank of such river, and extends to tbe water line thereof at low water.' — • Williams v. Glover, 66 Ala. 189; City of Demopolis v. Webb, 87 Ala. 670. And tbis doctrine was long ago applied in a case like tbe one at bar, tbis court bolding that tbe dedication of a street bordering on navigable water extends to low-water mark. — Doe, ex dem. v. Jones, 11 Ala. 63.

Applying tbis rule of property to tbe grant of tbe United States to George S. Gaines and associates, constituting tbe Demopolis Town Company, of tbe land upon which tbe town was subsequently built, tbe result is to invest said purchasers with title to said land down to tbe low-water line of tbe river; and they, having, as we bave seen, tbe animus dedicandi coextensive with their proprietorship of tbe land between tbe line of tbe adjacent numbered lots and tbe river, must be beld to bave efficiently, and, wben taken in connection witb tbe acceptance by tbe public, wbicli tbe record shows, irrevocably dedicated tbe whole space from said lots to low-water mark to tbe public as a street under tbe name of “Arch street.”

Our conviction that this result is enforced by tbe evidence is in no degree weakened by tbe testimony of some of tbe witnesses, to tbe effect that they never knew there was a street in Demopolis along tbe margin of tbe river; or of yet some others, who say they never beard of “Arch street” prior to tbe inception of this litigation. It is not unusual, we feel safe in saying, for tbe names of streets in towns of tbe size of Demopolis to fall into disuse and oblivion,, or for streets laid off in town maps and dedicated to remain unopened, or, being once opened, to be closed to tbe public and occupied for private purposes. And that this is true of Demopolis abundantly appears from tbe evidence here, going, as it does, to show that not a few of tbe other streets, as to tbe dedication of which there is no controversy, bad remained or become closed in whole or in part, and that many of tbe citizens of tbe town, long resident there, were ignorant of tbe names of various streets which bad been all along open, used and recognized as streets.

Nor is it a matter of any moment that tbe ground constituting Arch street could not, in its natural state, be used throughout its length as a street. It would not, we apprehend, be controverted, it is not in fact controverted, that it was feasible to overcome all obstructions to tbe use of this street which tbe character of tbe surface over which it was laid out presented. Nor can it be controverted that it had to be, and has all tbe time been, used at one point or others for tbe purposes of access to and regress from tbe river. It is to be doubted whether a single street in tbe town of Demopolis, as laid down on tbe virgin soil in tbe year 1819, could, in its then natural state, bave been used for tbe purposes of its dedication; possibly others of them than Arch street required great labor and expense to adapt them to tbe uses of highways; and if Arch street was more rugged and required greater exertion to make it practicable for tbe passage of persons and tbe transportation of property along its course, or across it to tbe river, tbe necessity for such exertion was tbe more imperative, in that it alone of all tbe streets of tbe town afforded an outlet to tbe river, commerce on which constituted so important a factor in tbe life and prosperity of tbe town. But aside from all tbis, a dedication of land' as á street can in no case, in our opinion, be defeated by considerations going to the relative adaptability of the land to that end, or to difficulties of subjecting it to such uses in point of fact, or to the extent of the use to which it will be subjected when its natural obstructions have been removed, or even to the necessity to so use it all. — City of Dubuque v. Malonly, 74 Amer. Dec. 358; Hanson v. Eastman, 21 Minn. 509; Regina v. Spence, 11 Upper Canada G. B. 31.

The Tombigbee river, opposite the city of Demopolis, is a vavigable stream, on which the public have the right of transportation of person and property, free of all charges or imposts whatever, subject to such regulations as Government may deem just and expedient in conservation of the public easement. In juxtaposition to this easement is that other which the public have in Anch street, and this latter extends to and ends only at the point where the former begins. There is, and in the nature of things can be, no particle or scintilla of space between that side of Ajrch street furthest from the river and the water-line of the river furthest from the town of Demopolis, which is not covered by one or the other of these easements, and over which the public would not have the same right to pass and transport property as they would have along the course of Arch street, or up and down the current of the stream; and it follows as a necessary consequence, that an obstruction to the use of this street for the purpose of going on to the river, would be as violative of public right, and as unlawful, as an obstruction to its use for the purpose of going along it from one part to another of the town. These propositions are, to our minds, self-establishing results from the existence, side by side, and extending to the touch with each other, of these two public easements, and they are abundantly supported by authority.— Godfrey v. City of Alton, 12 Ill. 36; s. c., 52 Amer. Dec. 478; Haight v. Gity of Keokuk, 4 Iowa, 199; Barney v. Keokuk, 94 U. S. 340 ; Hew Orleans v. United States, 10 Peters, 717.

Nor do we question the right and power of the city of Demopolis to provide facilities looking to the use of this street as a means for the passage of persons and property back and forth from the town to the river. The right to so use it free of charge being in the public, it may be, indeed we are inclined to that view, that the city could not, without special statutory authority, engage in the business of wharf - ing in the sense of erecting wharves, providing keepers thereof, and charging the public for the privilege of using them in going to or from tbe river, or in lading or unlading property from or on tbem. But we do not doubt tbat tbe city, in tbe absence of legislative delegation of it, bas tbe power andautbority wbicb is implied from tbe location of tbis street, and tbe manifest purposes of its dedication, not only to make suitable and convenient approaches from tbe town to tbe water-line, but also to make sncb structures or excavations, at and even beyond tbe water-line, having regard to tbe rights of navigation, as are reasonably necessary and proper to enable tbe public to conveniently avail themselves of tbe rights of commerce and transportation wbicb tbe river offers. Tbe existence and exercise of tbe right to do tbis is essential to tbe enjoyment of tbat other right, wbicb tbe inhabitants of tbe town and tbe public incontrovertibly have, to pass in their persons and effects from tbe town to tbe river, and vice versa; and hence is a right implied from its necessary connection with a right wbicb is expressly granted. It is based on tbe same principle of necessity as that under wbicb a municipality would rest to adjust tbe grade of a street with tbe grade of a public road leading up to its corporate line, and wbicb, we apprehend, might, when necessary, be done by depressing or elevating tbe latter; though, dissociated from the street, tbe municipal authorities would have no power to build or change a highway beyond tbe lines of tbe town. So, too, we should say,, tbat where tbe corporate line is on tbe near bank of a stream, ravine or ditch, wbicb could only be passed by means of a bridge, tbe municipality, though without express power to build bridges beyond its own territory, would be authorized to gain access to the outside world by bridging such stream, ravine or ditch, wherever it should be intersected by streets. And a fortiori would tbis be true, where, as in this case, tbe chief, if not tbe only purpose of tbe particular dedication, was to afford egress beyond such barrier. It was upon considerations of tbis sort tbat it bas been held in several well reasoned cases tbat a town bas tbe implied power to erect wharves for tbe convenience of tbe public under circumstances such are found in tbe present case. Rowan’s Ex’rs v. Portland, 8 B. Monroe, 232; Newport v. Taylor’s Ex’rs, 16 B. Monroe, 699, and 804 ; Potomac Steam Co. v. Upper Potomac Steamboat Co., 109 U. S. 672, 686-7.

Tbis view disposes of tbe argument for appellants wbicb proceeds on tbe supposed want of authority in tbe city of Demopolis to erect wharves and tbe like, and tbe consequent necessity for tbis to be done by a private enterprise, to tbe conclusion tbat appellants bad tbe right they exercised to erect wharves at tbe “Lower Landing, ’ and charge the public for the use thereof.

Having thus reached the conclusion that the whole of Arch street, extending to lower-water mark, was dedicated to the public, it is next to be considered whether the easement vested in the public has been lost. It is strenuously-insisted for appellants that it has been lost, so far as respects that part of the street now occupied by them, including what is known as the “Lower Landing” on the river front of Demopolis, through the possession of themselves and their predecessors in ownership of the lower warehouse property for a great period of time, under an exclusive claim of right, and the application to these facts of the doctrine of prescription. On this question of possession on the part of appellants, and those under whom they claim, of the street and landing in question, the character of that possession, its duration, &c., a great mass of testimony has been taken by each side. We have read it carefully, more for the pupose of finding evidence of relevant and material facts than with a view to determining whether a possession of the character set up in the pleadings had existed, and, if so, for what length of time. These inquiries we deem entirely immaterial to any issue in the cause. Without going at all into them, or intending by what we say to indicate what our conclusion in respect to them would have been had they been deemed relevant inquiries, we will concede, for the argument, that the appellants and their predecessors in ownership of the lower warehouse property had, without interruption, since 1844 had actual possession of said street, said lower landing, and the immediate approaches thereto; that this actual possession has all along been exclusive of the whole world ; that continuously during all that time they have claimed title to said landing and the approaches, and so much of said street as has been occupied by them, and have claimed in all cases, and exercised at pleasure, the right to charge all persons for the privilege of using said landing as a wharf; and further, that they have greatly improved the landing and approaches thereto — have, if you please, created the landing, in the sense of building the approaches to it, and providing all the facilities which now exist, or have ever existed for reaching and going on the river at that point; or, in other words, we will concede every thing which appellants claim as to the facts of their relation to this landing.

But all this will not help them. The law applied to these facts does not enforce any result of benefit to them, .No statute of limitations, or principle of repose, obtains here. Neither the statute of limitations, nor the rule which carries title to adverse possession, nor the doctrines of staleness, equitable estoppel or prescription, can be invoked or applied against the right of the city of Demopolis, and of the public, to have this street opened from end to end, and from side to side, from the municipal line on the north to the municipal line on the south-east, and from the numbered lots of the town to lower-water mark of the stream, and devoted to the uses to which it was dedicated by the original proprietors in 1819. The city never had any alienable title to, or right in the street. It could never have granted it, or any part of it away, for any purpose whatever. Having no power of direct alienation, it could not pass title indirectly by submitting for the statutory period to private possession, claim and use. Having no power to grant it, no grant can be presumed from the lapse of time, however great, during which it has allowed respondents to deal with a part of it as belonging to them. Respondents being held to know — a rule, the propriety of which is emphasized here by the muniments of their title to the warehouse property, which show the fact — that all the space between their lots and the low-water line of the river was in and constituted Arch street, expended money and labor in putting improvements thereon at their own peril, and in recognition of the right of the city to deprive them of all private benefit therefrom by throwing the entire street open to the free use of the public, whenever the municipal authorities deemed it expedient so to do ; and hence no element of equitable estoppel against the public enters into their claim.

These positions are well grounded in text and adjudged cases, including recent adjudications of this court. Judge Dillon, after stating the views of several courts of last resort on this subject, sums up what he considers the true doctrine as follows : “Municipal corporations, as we have seen, have in some respects a double character — one public, the other (by way of distinction) private. As respects property not held for public use, or upon public trusts, and as respects contracts of a private nature, there is no reason why such corporations should not fall within limitation statutes, and be affected by them.But such corporation does not own, and can not alien, public streets or places, and no mere laches on its part, or that of its officers, can defeat the right of the public thereto.”- — -2 Dillon Mun. Corp. § 675. And the author incorporates in the text the views of the Supreme Court of Pennsylvania, to this effect: “Streets and public squares are dedicated or acquired for tbe public use, not alone for tbat of tbe people of tbe city, tbe corporation being tbe mere trustee for tbe public; tbat erections by private persons on property tbus dedicated or acquired, can not be authorized by tbe original proprietor, or by tbe city corporation, and can be authorized only by the legislature; that unauthorized erections or obstructions thereon are public nuisances, . . . ; and tbat in tbe absence of a grant shown from a competent source, no presumption from mere lapse of time can be made to support a public nuisance which is an enroachment on a public right.” And be quotes with approval from an opinion of Mr. Justice Sargeant tbe following language: “These principles of law, as well as our own Code, are essential to tbe protection of public rights, which would be gradually frittered away, if tbe want of complaint of prosecution gave tbe party a right. Individuals may reasonably be held to a limited period to enforce their rights against occupants, because they have an interest sufficient to make them vigilant. But in public rights of property each individual feels but a slight interest, and rather tolerates even a manifest encroachment than seeks a dispute to set it right.” — 2 Dillon Munic. Corp., § 669 ; Com. v. Alburger, 1 Whart. (Pa.) 469, 488; Sims v. Chattanooga, 1 Lea (Tenn.) 694; Jersey City v. M. C. & B. Co. 12 N. J. Eq. 557, 561.

And this doctrine has been fully adopted by this court in more than one case, the last being that of Reed v. Mayor & Aid. of Birmingham, 92 Ala. 339, 348-9, citing Olive v. State, 86 Ala. 88, where the same principle is “broadly asserted;” and quoting as above from Dillon on Municipal Corporations, and as follows from Elliott on Boads & Streets, p. 490: “There can be no rightful permanent -possession of a public highway for private purposes; and although a right to maintain a private nuisance may in some cases be acquired by prescription, no length of time will’render a public nuisance, such as the obstruction of a highway, legal, or give the person guilty of maintaining it any right to continue it to the detriment of the public.” See, also, Elliott on Roads & Streets, 667 et seq. This may now be said to be the established law of Alabama.

That the private use of a public highway of a character which is subversive of its use by the public as a thoroughfare may be perpetuated in any case by the invocation of the doctrine of estoppel in pais against the municipality in which the highway lies, we very much doubt. It would seem on principle that, inasmuch as the municipality has no alienable right in snob highway, none which could be lost through its laches, or through actual private possession under a claim of exclusive right, but holds the locus in quo not only for itself, and for its own citizens, but in trust for the public at large, whose rights therein are in no wise dependent upon anything the municipality may do or omit to do ; that nothing done or omitted by a city in the way of allowing, or even inducing persons to make erections on a street, which obstruct and interfere with its use. could or ought to estop the public to have such obstruction removed, ox to have them removed at the suit of their trustee and agent, the municipal corporation. Yet Judge Dillon says, there may possibly be instances of such estoppel; but he adds, that “such cases are exceptional in their character, and it would, perhaps, be going too far to say that the courts have distinctly established such a principle.” — 2 Dillon on Munic. Corp., § 667. And the Messrs. Elliott, in their valuable work on Roads & Streets, say, that while some courts, “influenced, perhaps, by the hardship that would result from a contrary holding in the particular cases under consideration, have applied the doctrine of equitable estoppel where the claimant had made expensive improvements,” <fec., yet, it is doubtful, they say, “if the doctrine of these cases can be sustained upon principle,” except perhaps where the city has by affirmative action misled the claimant. And the text proceeds : “It is difficult to conceive upon what principle an equitable estoppel can be securely placed in such cases ; for the person who encroaches upon a public way must know, as a matter of law, that the way belongs to the public, that the local authorities can neither directly nor indirectly alien the way, and that they can not divert it to a private use. As the person who uses the highway must possess this knowledge, and in legal contemplation does possess it, one of the chief elements of an estoppel is absent. An estoppel can not exist where the knowledge of both parties is equal, and nothing is done by the one to mislead the other. In addition to this consideration may be noticed another influential one, already suggested in a different connection ; and that is, the private use of the public way was wrong in the beginning, and wrong each day of its continuance ; and it is a strange perversion of principle to declare, that one who basis his claim on the original and continued wrong may successfully appeal to equity to sanction and establish such a claim. It is, at all events, a great stretch of the doctrine of estoppel, and a wide departure from the rules laid down by the earlier decisions, and confirmed by tbe modern authorities.” — -Elliott on Boads & Streets, pp. 669 and 670.

We adopt the principle thus declared, and it leads inevitably to the conclusion that, on the facts of this case, there was no estoppel resting on the city of Demopolis to assert the rights advanced by this bill; and if it were necessary to pass on the point in the present case, we should be much inclined to hold that no act, or omission to act, on the part of the municipality with reference to obstructions in public streets, could in any case raise up an estoppel against it to proceed in the interest of the public to have such obstructions removed, however long they had been allowed to remain in the street.

This brings us to the final conclusion, that the respondents had originally no right to "obstruct any part of Arch street, or to use any part of iff as a private landing, or as a public landing not free of charge for the right to use it; and that no element of right has been injected into their claim by the efflux of time, or the direction and character of their occupation and use of a part of the street as their private property.

Several other questions are presented by the assignments of error. They are either not insisted on in the argument, or are fully covered by the exhaustive opinion delivered by this court through Mr. Justice Somebville, when the cause was here on demurrer to the bill; and, seeing no reason to depart from what was then said, we re-affirm that decision throughout.— Webb v. Demopolis, 87 Ala. 659. That and the foregoing opinion embrace all the points of this controversy, and determine them all adversely to the appellants, entitling the complainant below to the relief prayed in its amended bill, and granted by the Chancellor; and the decree to that end is in all things affirmed. •