City of West End v. Eaves , 152 Ala. 334 ( 1907 )

DENSON, J.

This bill is filed for tbe purpose of enjoining respondent from obstructing a public street, known as “Powell Street,” within the corporate limits of the complainant. The vital question in tbe case is whether or not tbe West End Land & Improvement Company, a corporation, in 1887, made an express common-law dedication to tbe public use of tbe land covered by tbe alleged street, as it runs from tbe Alabama Great Southern Bailroad track to tbe Tuscaloosa road. The bill alleges: That Avitbin tbe corporate limits of tbe complainant is a public highway known as “PoAvell Street.” That said street was laid off and dedicated to the public in 1887. That at the time of said dedication the complainant was not organized as a municipal corporation, bnt that said dedication was made in the following manner: C. B. Powell owned all the land on the sonth side of the Alabama Great Southern Railroad track, where it now runs through the corporate limits of complainant, for the full length of said street on the south side, and the West End Land & Improvement Company owned the land on the north side of said railroad track where said street was laid off; that Powell dedicated said street on the south side in statutory form, and made a contract with the West End Land & Improvement Company whereby it agreed to open, and did open- said street through its said lands to the Tuscaloosa road — said street as opened being dedicated and laid off by the extensions of the lines of said Powell street across said railroad and through the property of the West End Land & Improvement Company; that said street was dedicated by said company through its lands 80 feet wide. It is further shown by the bill that the consideration for the dedication by the company was that the said Powell agreed to grade and open said street at his own expense through his own lands and through the lands of the company; that at the time the company’s lands through which said street was laid off were low, wet, marshy, and impassible; and that at one end of said street was an embankment, which had to be removed in order to make the street the same grade as the Tuscaloosa road, and a bridge was built across a ditch which was necessarily cut across the street to properly drain it. It is shown by the bill that Powell, in compliance with the alleged agreement, graded the street, built the bridge, removed the embankment, and filled in the marsh with broken stone. It is then averred that since said street was constructed in 1887 the public have continuously used it as it lies; that it was maintained, and the bridge and ditch kept in repair, by the people in the vicinity, until the complainant was in 1900 created by an act of the Legislature, since which time it has been maintained, and the bridge and ditch kept in repair, by the complainant, as one of the streets of the complainant. The answer of the respondent denies that the contract of dedication ivas ever made by the West End Land & Improvement Company and denies all the allegations of the bill in respect to the dedication. The chancellor found against the complainant on the evidence and dismissed the bill.

The contract by which it is claimed the dedication was made, it is insisted, was made by Powell with the West End Land & Improvement Company, acting and contracting through R. H. Pearson as its president. The only direct testimony for the complainant in respect to the making of the contract of dedication is that of C. B. Powell. It is to the effect- that the West End Land & Improvement Company owned a’ large tract of land on the north side of the railroad, and he owned 100 acres on the south side. Arthur Owen Wilson was employed by both of the parties to lay off their respective lands into town lots;'Powell’s-employment of him being first in point of time. At the time of the employment there was considerable activity in real estate in that district, and nearly all the civil engineers had more than they could do. It was agreed between Pearson and witness that the company’s land should be first laid off by Wilson, and in consideration of that agreement, the witness testified, “we were to have one street through my property to extend across the Alabama Great Southern Railroad to a connection with the Tuscaloosa road, which runs through the company’s property a few hundred feet over the Alabama Great Southern Bailroad in the same direction. * * * Wilson, the engineer, was to make a survey, and run the lines of the streets on the same line as in my survey.” The evidence shows that Wilson did make the survey, and projected the lines of Powell street through the lands of the company; and the undisputed proof shows that Powell constructed the street through his own lands and those of the company, as surveyed, at his own expense. Powell further testified that the street was used and kept up by the public. But he testified that Wilson did not lay off into the lots the land of the company through which Powell street runs; that a number of years after the company made a further survey, and laid off the strip into lots and that in so doing they employed the services of one Alber as engineer; that the lot claimed by the respondent, where Powell street runs, was laid off, but that no one took visible possession of the lot, and the public continued to use the street until respondent began to build his fence, just prior to the filing of the bill. E. H. Pearson, for the respondent, testified, that he was president of the West End Land & Improvement Company, from its organization in 1886 to the time of giving his testimony; that he had no recollection of having made any agreement with C. B. Powell that he might open a street 80 feet wide, to be known as an extension of Powell street, from the land owned by Powell at the time, across the lands of the West End Land & Improvement Company, or any portion of them, to the Tuscaloosa road; that if any such agreement had been made he supposed he would have remembered it, and that his best recollection was that he never made any such agreement; that he was not authorized by the board of directors of the company to make any such agreement, and that there had never been any action, by him or said board of directors, in any way ratifying tbe opening of tbe street by Mr. Powell tbrongb tbe lands, or dedicating tbe same as a public street or for tbe nse of tbe public generally; that tbe lot involved in tbis controversy is in block 85 of tbe Alber map, and bad been sold by tbe company; that be did not know that a street ivas graded over tbe land in 1886 or 1887; and on tbe cross-examination be testified that no agreement was ever made about tbe street.

An express common-law dedication of land to the public use as a highway may rest in parol, and the rights of the public are not dependent upon the use of the highway for any length of time, but arise and attach to the highway upon its acceptance by the public. — Elliott on Roads and Streets, § 121; Stewart v. Conley, 122 Ala. 179, 27 South. 303. But the burden of proving a dedication of lands to public use rests on the party who alleges it, and when it rests in parol the law requires that the evidence to establish it shall be clear, unequivocal, and satisfactory: — Forney v. Calhoun County, 84 Ala. 220, 4 South. 153; 9 Am. & Eng. Ency. Law, 52 (note 2). While tbis is a salutary rule, and exacts a high degree of proof, we are of the opinion that the preponderance of the evidence favors the insistence of the complainant that the contract of dedication was made. Powell’s testimony that an agreement was made is positive in its nature. He testified without qualification that Pearson, acting for the company as its president, made the agreement; while Mr. Pearson’s evidence is of a negative character. It clearly appears that be simply bases bis evidence that the contract was not made on his lack of recollection in respect to the matter. There is an old rule of evidence which requires that the evidence, where there is conflict, must be so reconciled, if it can be reasonably done, as to make all the witnesses speak the truth. We cannot find that the contract was not made, without attributing falsehood to Powell; but we may find that it was made, and not attribute falsehood to either Powell or Pearson, upon the very reasonable theory that the transaction occurred as testified to by Powell, hut that- the facts had faded from Mr. Pearson’s memory. He had had many transactions for the company ; and the one in question is alleged to have occurred in 1887, quite a number of years before Mr. Pearson was called to testify about it. Furthermore, it seems to us that the circumstances, about which there is no dispute, bear out and fortify Mr. PoAvell’s testimony. Both Powell and the company were laying off their property into town lots. It was natural that streets should have been laid out and dedicated. Powell went upon the company’s property and constructed the street. Sidewalks were built upon it, ditches were cut to drain it, bridges were built over ditches, an embankment of earth was moved, and a marsh filled in with stone, at a personal expense to Mr. Powell of $156. If Powell went on the company’s property without permission and constructed the street, he was guilty of a trespass, which would have subjected him to be mulcted in damages at the suit of the company. Yet no suit was brought. True, Mr. Pearson testifies that he did not know the street Avas laid out; but we think the proof beyond question shows it was laid out. Again, it is a little unreasonable to say that Powell would expend so large a sum of money in constructing the street through the company’s land, without some agreement authorizing it, or without permission from the company. According to Powell and Pearson both the intention of speaking truthfully, and not attributing falsehood to either, we think, and hold, that the preponderance of the evidence establishes the insistence of the complainant that the agreement of dedication was made between Powell and Pearson as tbe president of tbe company.

Tbis presents for consideration the insistence of the respondent that, conceding that Pearson made the agreement contended for, yet bis agreement was not binding on. the corporation. As we have seen, there is ample evidence tending to show that the street, as constructed by Powell, was used by the public, and that the people in the vicinity, before the complainant was organized as a municipal corporation, kept the street, and especially the bridges thereon, in repair; and the evidence without conflict shows that Mr. Pearson Avas president of, and a principal stockholder in, the company, Avhen the agreement to dedicate Avas made, and acted for the company. Under these circumstances, the authority of Pearson, as president of the corporation, may be inferred from silence and acquiescence in the public use. — Union Company v. Peckham, 16 R. I. 64, 12 Atl. 130. It is Avell settled that a dedication of land to public use. once made by the owner and accepted by the public, cannot be revoked so long as public use is maintained; so that the subsequent survey and plat by the company of the lot claimed to be a part of Powell street cannot revoke or annul the dedication to the public use. — 9 Am. & Eng. Ency. Law, 30 (note 3) ; Barclay v. Howell, 6 Pet. (U. S.) 498, 8 L. Ed. 477; Brown v. Manning, 6 Ohio, 298, 27 Am. Dec. 255; Union Company v. Peckham, 16 R. I. 64, 12 Atl. 130.

We are of tbe opinion that tbe decree of the chancellor is erroneous. It must therefore be reversed, and a decree will be here rendered granting tbe relief prayed.

Reversed and rendered.

Tyson, C. J., and Haralson and Simpson, JJ., concur.