Steele v. Sullivan , 70 Ala. 589 ( 1881 )

SOMERYILLE, J\

A dedication of land to the public use, as a highway, need not be in writing, but may originate by any act or declaration of the owner, which manifests an intention to devote the property to such public uses. Being avoluntary donation, it will not be presumed, without the clearest intention to this end. It must be completed by the acceptance of the public, and, when once accepted, is irrevocable. The act of dedication, especially if single, must be clear and unequivocal ; but acceptance may be shown by long public use, or by acts of corporate or other public officers, recognizing and adopting the highway as such.—Cook v. Harris, 61 N. Y. 448; Washburn on Easements, 186; Green v. Chelsea, 24 Pick. 71; Immigration Association v. Jones, at the last term.

A dedication can properly be only to the public use. A private right of way can not be created by dedication.—Hall v. McLeod, 2 Metc. (Ky.) 98. When made of a street or alley in an incorporated town or city, the body of mayor and aldermen, or other corporate .authorities, are the proper parties to take charge of the dedicated property ; and having indicated acceptance, directly or impliedly, are considered as holding it in trust for the public. — 3 Sm. Lead. Cas. (5 Amer. Ed.) 222.

Such acceptance by a town or city may be manifested, among other methods, by long and uninterrupted use by the public without objection ; by the expenditure of corporate money or labor in repairs, and by the recognition of the street or alley in the official maps of the municipality, prepared under their authority or direction.—2 Wait’s Act. & Def. 707; Page v. Weathersfield, 13 Vt. 429; Reese v. Chicago, 38 Ill. 322.

It is, however, settled law in this State, that a presumption of dedication will not arise from mere user, unaccompanied by some clear and unequivocal act evincing the owner’s intention, for any period short of twenty years.—Hoole v. Attorney General, 22 Ala. 190; Immigration Associations v. Jones, supra; Rosser v. Bunn, at last term.

And as the intention to dedicate may be inferred from acts or declarations of the owner, as well as from long and uninterrupted acquiescence in user; so it tnay, in like manner, be disproved, by any word of protest, or act Of remonstrance, on the part of the owner, by which he denies or forbids the right of use to the public.—Nichols v. Aylor, 7 Leigh (Va.), 565. It has been held, on this principle, that a user of twenty years will not raise a prescription, where it appears that the right had always been a subject of contention—Smith v. Miller, 11 Gray, 148 ; Livett v. Wilson, 3 Ring. 115. Where the recorded deeds of the lands or lots, adjacent to a street or alley, contain recitals or words of conveyance which repel the idea of a dedication, this is always a very strong fact to rebut the presumption arising from tlie use by the public.—Bowers v. Manuf. Co., 4 Cush. 332. So, the erection of a gate, or other obstruction, across the entrance, rebuts the intention to dedicate an alley as a public highway.—Washburn on Easements, 187; Scott v. State, 1 Sneed (Tenn.), 633.

The mere fact that the owner of the fee, in conveying an adjoining tract of land by deed, describes it as being bounded by a road on one side, is not, alone, evidence of a public dedication of the road. — Hoole v. Attorney General, 22 Ala. 190; Immigration Association v. Jones, supra. Of course, where streets or alleys are laid out, and lots are sold by the owner of the soil, with reference to the plan, and purchases made on the faith of the act, a dedication may be inferred, though, in all cases, the intention of the owner is open to explanation.—Washburn on Easements, 138; Logansport v. Dunn, 8 Ind. 378; Child v. Chappell, 9 N. Y. (5 Seld.) 246; Hall v. McLeod, 2 Metc. 98.

Where a right of way, or other easement, is claimed by private persons, upon the principle of prescription, the user and enjoyment, as is universally held, must have been “ adverse to the owner of the estate from which the easement is claimed, under a claim of right, exclusive, continuous, and uninterrupted,” and with the actual or presumed knowledge of such owner.—2 Wait’s Act. & Def. pp. 685, 693; Colvin v. Burnett, 17 Wend. (N. Y.) 564; Tracy v. Atherton, 36 Vt. 514.

If the user is merely permissive, as existing by the toleration of the owner, and in subordination to or recognition of an implied license from him, the right will not mature into a title by prescription, but is revocable at pleasure.—Bachelder v. Wakefield, 8 Cush. 243 ; Watkins v. Peck, 13 N. H. 360; Polly v. McCall, 37 Ala. 29.

The application of these principles proves fatal to the complainant’s claim in this case. We fully concur in the opinion of the chancellor, that the evidence shows that the alley in controversy, described as lying between -the store-houses of the appellee, Sullivan, and James I. Donegan, in the city of Huntsville, was never dedicated to the public use, but that it is the private property of the adjacent proprietors. And it is still clearer from the evidence, that the complainant, Steele, shows no right in himself, or those under whom he holds title, except a permissive right of way, in the nature of a mere license. The muniments of title held by Sullivan and Donegan, running back for over sixty years, rebut the idea of dedication, by repeated and continuous claims of private ownership in their vendors, and those under whom they claim. The same inference is corroborated by the contention between these adjacent proprietors, which was submitted to arbitration, and settled'by an award declaring the respective rights of the parties.

The alleged claim on the part of the city of Huntsville is entirely unsustained by the testimony, and appears to have been abandoned by the corporate authorities on investigation.

The decree of the chancellor dismissing the bill is in full harmony with the above principles which we have discussed, and, being supported by the evidence, is affirmed.