Forney v. Calhoun County , 84 Ala. 215 ( 1887 )

SOMEBYILLE, J.

A dedication of land may be defined tó be an act by which the owner of the fee appropriates to some public use an easement in the land.

This may be done by writing, or it may be done verbally— without any writing. It may be express, or it may be implied. It may be by a single act, or by a series of acts properly indicative of the owner’s intention.

The act of dedication, especially if verbal and single, must be clear and unequivocal, and satisfactorily proved. The most frequent mode of proving the intention to dedicate is by the declarations of the owner. A single clear and unequivocal declaration may be sufficient for this purpose. But a presumption of dedication will not follow from mere user, without more, for any period short of twenty years.

To be effective and valid a dedication must be accepted, and such acceptance may be shown either by some positive conduct of the proper public officers evincing their consent in behalf of the public, or may be inferred from official acts of implied recognition on their part, or by long public use, or from the beneficial nature of the dedication. When once accepted, an easement becomes vested in the public which is irrevocable, although the dedication, as originally made, was voluntary in the sense of being made without any valuable consideration.

These conclusions are familiar principles of law fully supported by the authorities. — Steele v. Sullivan, 70 Ala. 589, and cases there cited; Boone’s Law of Real Property, § 139, and cases cited in notes; Tiedeman on Real Prop. § 611; Buchanan v. Curtis, 3 Am. Rep. 23; City of Cincinnati v. White, 6 Pet. 431; Inge v. Smith, 80 Ala. 284; N. O. & S. R. R. Co. v. Jones, 68 Ala. 48.

The public uses to which property may be dedicated are various. It may be for a street, avenue, or other public highway, for a public square, or public commons; for pleasure grounds, or for a graveyard; for water works, or a wharf; for a market house, or for a court house, as in the present case, or other -uses of a public nature. — City of Morrison v. Hinkson, (87 Ill. 587,) s. c. 29 Amer. Rep. 77; Monkato v. Willard, 13 Minn. 18; McKinney v. Griggs, 5 Bush. 401; s. c. 96 Amer. Dec. 360, note 367; Trustees of Watertown v. Cowen, 4 Paige, 510; Hunter v. Sandy Hill, 6 Hill (N. Y.), 407; Child v. Chappell, 5 Seld 246; Abbott v. Mills, 3 Vt. 521; s. c. 23 Amer. Dec. 222. And it may be said in general terms, that “all sorts of easements and rights to the enjoyment of land, whether of use or of pleasure, which may be acquired by an individual by grant or prescription, may also be acquired by the public by actual dedication.” — Boone on Real Prop. § 139.

The doctrine of equitable estoppel applies with peculiar force to cases of this kind. Where the owner of land intentionally, or by culpable negligence, leads the public to believe that he has dedicated it to a public use, he will, upon every principle of fair and conscientious dealing, be estopped from denying the fact of such dedication to the prejudice of those whom he has thus misled. The fee, or legal title of the land may remain vested in the owner, but the principle of estoppel will operate to preclude his claim of any exclusive right of possession, such as would interfere with the easement created in the public by his act of dedication. As said by Denio, J., in Child v. Chappell. 9 N. Y. 256, such dedication “operates, in the nature of an estoppel, upon the principle that to retract the promise implied by such conduct, and upon which the purchaser [of an adjacent lot] acted, would disappoint his just expectations.” And a court of chancery will intervene to protect the public in the enjoyment of this easement against any interference of the owner of the legal title, bringing to their assistance the prompt aid of its injunctive relief. City of Cincinnati v. White, 6 Peters, 442; Boyce v. Kalbaugh (47 Md. 334), s. c. 28 Amer. Rep. 464; Hobbs v. Lowell (19 Pick. 405), s. c. 31 Amer. Dec. 145; 1 Greenl Ev. § 207; Boone on Real Prop. §§ 139, 253; Beatty v. Kurtz, 2 Peters, 566.

The bill alleges, with sufficient clearness, conduct and declarations on the part of the defendant Forney, which operated as'a dedication of his undivided interest in the land in controversy, to the public use, as a site for the court house of Calhoun county. The fact is averred that this dedication was accepted by the court of county commissioners, and, that, acting upon the faith of it, they had proceeded with the knowledge and acquiesence of the defendant, to construct a court house upon the premises at a cost to the county of some fourteen thousand dollars. Under this state of facts, the defendant was estopped to contradict the validity of snch dedication, or its binding, force upon him, by reason of its resting in parol instead of grant by deed.

Apart from the feature of dedication to public uses, which, as we have said, may be effected by parol declarations, or otherwise by conduct in pais, the bill would, in my opinion, probably have equity on another ground, as a bill for specific performance. It alleges, in this aspect, a parol promise to make a gift of lands to the county, upon the faith of which the commissioners took actual possession, and were induced to make valuable improvements. Would it not be a fraud on the donee in such a case to permit him to be ejected on the strength of the donor’s legal title, in view of a promise by him to make a conveyance ? There are well considered decisions which hold that the Statute of Frauds .has no bearing on a case of this kind, by reason of the fraud of the donor operating to create an equitable estoppel. We prefer, to put our decision, however, upon the ground first stated, contenting ourselves by referring to the authorities bearing on the last point. — Forward v. Armistead, 12 Ala. 124; s. c. 46 Amer. Dec. 246 ; Hardesty v. Richardson, 44 Md. 617; s. c. 22 Amer. Rep. 57; Freeman v. Freeman, 43 N. Y. 34; s. c. 3 Amer. Rep. 657; Lobdell v. Lobdell, 33 How. 347; Crosbye v. McDoual, 13 Ves. 147.

These two aspects of the case do not, in our opinion, render the bill multifarious, each entitling the complainant to the same kind of relief, differing only in the mode and degree. The relief severally asked in the two aspects of the case is not repugnant. In each the action of. ejectment is perpetually enjoined so as to protect the possession of the complainant. In the one, it is true, the defendant is decreed to hold the legal title in trust for the complainant, and the public; and in the other, he is decreed to convey it to the complainant to be held in trust for the use contemplated by the dedication — but each of these phases is incident to the general relief prayed, which is to create an equitable estoppel on the defendant, whereby he is precluded from asserting his legal title to the prejudice of the complainant.

The court refused to dissolve the injunction on the denials of the answer, which- are equivocal and evasive in their nature. The defendant’s conduct is significant in peremptorily declining to answer the interrogatories to the bill, which seek to sift his conscience as to his alleged silence, when standing by and witnessing the construction of the court house building upon the land, which he admits in his answer he had consented to dedicate to such uses upon a condition, Avhich was of a nature easily to be waived by such silence. It must be presumed that his ansAvers, if unequivocally made, Avotild have been conclusive against him as to this matter of estoppel so clearly charged in the bill. We repeat that the answer admits, in effect, an agreement to dedicate the land upon the condition that a court house building was located in the centre of the lots or block; but it is alleged that this condition was not observed in as much as the building was constructed on the east side, and not the centre of the land. It is not denied, however, and must, therefore, be taken as admitted, that the defendant was fully cognizant of the fact that this variation as to the locality of the structure was being made, and with every opportunity to object, he Avas silent, and said nothing, and by reason of his culpable silence he permitted the complainant to be misled into making large and Araluable improvements upon the premises. This was a waiver of the alleged condition as to the particular spot on the land designated for the location of the building. It was, therefore, a consent to the act of its location on the east side of the lots.

There is no force, under the facts of this case, in the suggestion that the defendant, Forney, was a tenant in common Avith the complainant in the lands’* in controversy, and was relieved, on this account, of the duty of objecting to the improvements in process of erection. He could not fail to know that a costly building of this nature was not intended by prudent officials to be constructed on ground belonging to a private individual; and that the court of county commissioners manifestly were acting with reference to his acts and promises bearing on the question of a dedication.

The other denials of the answer are denials of legal conclusions and not of facts stated in the bill, and can avail nothing. — Columbus & Western Railway Co. v. Witherow, 82 Ala. 190.

Conceding the affidavit to the bill to be defective, this was no reason for dissolving the injunction on motion, unless the complainant failed, when required by the court, to perfect this defect by a sufficient verification of the bill. — Jacoby v. Goetter, 74 Ala. 427.

The demurrer to the bill was properly overruled, as also the motion to dissolve the injunction, and the decree of the chancellor is affirmed,