State Ex Rel. Davis v. Meaher ( 1925 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] [EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] [EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] [EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] [EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] The bill in this cause, filed by the state on the relation of the Attorney General, sought to abate alleged public nuisances consisting of a sawmill, buildings, and other structures maintained in public streets of the city of Mobile and in an area measuring approximately 75 by 2,000 feet lying alongside Bayou Marmotte, or One Mile creek in said city, and shown on the map known as the "Pillans Map," which is recorded in Map Book 1, at page 1, in the office of the judge of probate of Mobile county, a copy of which is exhibited with the bill, whereon said area is shown as a space without designation. Appellant had relief as against obstructions maintained by some of the appellees on certain streets appearing on the map, and in the projections of the same streets across the area to which we have referred, down to the water's edge; but other relief was denied, on the finding that there had been no dedication to public use of the area to which for convenience we now refer as "Marmotte wharf" and that, moreover, title to so much of the "Marmotte wharf" and of the streets named in the bill as lie in section 11, township 4 south, range 1 west, had remained in the United States until a time postdating the acts of dedication for which appellant contends, and so that, as to so much of the streets and mentioned area as lie within that section, there had been at the time of the dedications contended for no power to dedicate in the alleged dedicators. Appellees make no complaint of the decree wherein it granted relief according to the prayer of appellant's bill.

There is no claim of a dedication under the statute (Code 1923, § 10357 et seq.), the dedication contended for having long antedated the statute.

So then, as to the "Marmotte wharf," pretermitting for the time being consideration of the diversity in its parts effected by the street extensions already mentioned and the alleged government ownership of section 11, the contention for appellant is: (1) That this area was definitely and irrevocably dedicated to public use by the platting and sale in 1835-36 of lots in a part of the "Orange Grove tract" — within the bounds of which tract lie all the ways and areas in dispute — as shown on a map or plat projected by A. A. Dexter, by reference to which the lots were sold; and (2) by sales in April, 1859, under judicial decree made by reference to the "Pillans Map," which is (to the extent thereby shown) a substantial duplicate of the map of the "Orange Grove tract" prepared in 1835, probably, by Dean Knox "at the instance of the proprietors," except that in the older map the inscription "Marmotte wharf" appears in the space now in controversy, whereas in the "Pillans Map" no such inscription appears.

As for the sales made in 1835-36, we do not find that they effectuated a dedication of the area in controversy. These sales were made with reference to the "Dexter Map," which shows a plat of the territory south of Hunt street, running east and west; but the "Marmotte wharf" area, as well as the streets, properly so called, in controversy, lies entirely north of Hunt street, from which, at its nearest approach, it is removed by the space of two blocks at least — some 700 or 800 feet.

The "Dexter Map," of date 1835, was inscribed as follows:

"Plan of a Part of the Orange Grove Tract Reduced from the Original Map. Scale 150 Feet to an Inch. Drawn by A. A. Dexter, Civil Engineer, May, 1835." And in another place: "Surveyed by Dean Knox." To the extent of the territory shown thereon, the "Dexter Map" is a copy of the "Dean Knox Map," as a comparison of the two readily discloses. On the strength of this likeness or identity of appearance and the inscriptions noted above it is asserted that the sales of 1835-36 must be taken as made with reference to the "Dean Knox Map," and therefore as evidencing a dedication to public use of the "Marmotte wharf" as it appears on the last named map. These sales were made by trustees in pursuance of a deed of trust executed and delivered to them in 1835 by the original proprietors of the entire "Orange Grove tract" (containing in itself more than 300 arpens) and other adjacent tracts. The purpose of the trust was that the trustees (of whom there were three) or a majority of them, should, within six years, sell the land for the use and benefit of the grantors on such terms as a majority of the grantors or their assigns might direct, "provided however that they shall not sell the said lands in greater subdivisions than one acre nor more than one-fourth of the quantity in one year without the unanimous consent of the grantors or their assigns." By said deed any part of the lands remaining unsold after six years was to be held by the trustees in trust for the grantors or their assigns in proportion to their respective interests. The "Dean Knox Map" is an ancient document (Barker v. Mobile Electric Co., 173 Ala. 36, 55 So. 364), and we do not doubt that the court may now proceed on the assumption that it was made at the instance of the proprietors, meaning the grantors, or the trustees in the deed of trust mentioned above, acting in harmony with the grantors, and it may be conceded, though such concession would rest upon shrewd surmise rather than upon established facts, that the platting shown thereon was prepared for the purpose of a sale of the land in what may be now designated as city lots. But though that purpose be conceded it does not appear that the proprietors or their trustees ever sold a lot with reference to that map. How then are they or their successors in interest and title to be bound by that map? We have quoted above every inscription on the "Dexter Map" which by any process of inference, however remote, can be held to have reference to the "Knox Map." These inscriptions are not parts of Dexter's Map; that is, they contribute nothing to its delineation of the locality with which it dealt. They are in fact nothing more than an acknowledgment by Dexter of his indebtedness — to Knox, or Knox's map, it may be conceded — for the information embodied in his (Dexter's) map. The reference is to an "original map," and the further inscription is, "Surveyed by Dean Knox," This falls short of that clear and distinct designation of a map required by the authorities in the case of a dedication by map, as we shall see. But, conceding for the argument the clearness and distinctness of the designation, it is insufficient to effect a dedication for the reason that the reference is too remote.

It does not follow in law or logic that the reference in the deeds of 1835-36 to the "Dexter Map" should conclude the grantors to every line shown by the "Knox Map," though the former was in fact a copy, as far as it went, of the latter. Each was a self-contained unity, the "Dexter Map" as much so as the "Knox Map," and by the reference to the "Dexter Map" — which purported to be, not a part of the plan of the "Orange Grove tract," as appellant's brief phrases it, but a plan of a part of that tract, and nothing more — it can be fairly inferred only that the grantors in these sales intended to be bound by the lines and inscriptions of that map only, for, otherwise, the reference would have been to some other map — to the "Knox Map," if they had intended to be bound by that map. As I see it, no satisfactory reason can be assigned why the grantors had the "Dexter Map" prepared and made sales with reference thereto if in fact they intended to be bound by the larger and more inclusive "Knox Map." It would have been as convenient and, for aught I can see, as satisfactory in every respect to have made sales according to the larger map they already had, if, for reasons satisfactory to themselves and resting in their unreviewable discretion as proprietors, they had not desired to avoid the implications of the larger map.

The accepted rule of the authorities in regard to the effect of a reference to a map or plat in a conveyance of land is that it is only when the grant is made according to a plan, distinctly and certainly designated by the deed, that the plan becomes a part of the deed, and in such case it is subject to no other explanations than other parts of the deed. This principle of construction was followed by this court in Thrasher v. Royster, 187 Ala. 350, 65 So. 796, where it was further held that "where one map or plat is referred to, and thus becomes a part of the conveyance, parol evidence cannot be received to show that another map or plat, not referred to in the instrument, was the map or plat intended," referring to 13 Cyc. 634, and Chesley v. Holmes, 40 Me. 546. The text of 13 Cyc. 634, based upon Chesley v. Holmes, is:

"But a plan only becomes a part of the deed where the grant is made according to such plan distinctly and certainly designated by the deed, and where a certain plan is so designated another plan cannot be referred to."

There is no effort to bring the "Knox Map" into the deeds of 1835-36 by parol, but the effort is to incorporate the "Knox Map" for the reason that the "Dexter Map," which is incorporated by distinct and certain reference, itself contains some inscriptions which may very reasonably be accepted as going to show that the maker got his material from the "Knox Map." The reference thus relied on is a reference shown, not by the deeds, but by a map to which the deeds refer. In my opinion the only reasonable interpretation of the deeds of that date is that, by referring to the "Dexter Map," the trustees intended to be bound by that map only, and that, had they intended to be bound by the implications of the "Knox Map," they would have referred to the "Knox Map." I can see no other rational construction of the deeds and maps in evidence, for, if this process of binding by reference can be carried back beyond the reference of the deed or deeds under which parties claim, it must be allowed to operate through an indefinite series of maps and as often as the map maker sees fit to acknowledge the source from which he gets any part of the information which he puts into his work. The industry of counsel has found no authority for the devolution of property rights by this method; a somewhat extensive search has enabled us to find no such authority; and we feel justified in assuming the agreement of all cases with what seems to be the clear reason of the matter.

There are indications that the original "Dean Knox Map" had acquired some notoriety in the early "40's"; that about that time the municipal authorities of the city of Mobile purchased a copy of it from Dean Knox, the lines of which as to separate parcels — each parcel consisting in general of a city block or square — were reproduced in a later volume of maps covering the city of Mobile (1845) prepared for the city by its engineer, Troost; that the sheriff of Mobile county may have had in mind, though there is no recital in his deed showing the fact, the original "Dean Knox Map" when, in 1842, he executed a deed to one Lyon after a sale for taxes of the right, title, and interest of the trustees in and to "the balance of the Orange Grove tract remaining unsold," and that in 1844 it found its way into the records of the probate court, at whose instance or by what authority does not appear; but none of these facts, nor all of them in combination, show sales by the proprietors or their trustees with reference to the "Dean Knox Map" of the "Orange Grove tract," nor are they sufficient evidence, nor indeed any evidence, of a divestiture by dedication of the property rights of the proprietors, for they were not the acts of the proprietors nor their trustees. It is also true that John Bloodgood, one of the original 10 or 12 proprietors, may have undertaken in 1855 to convey to one Griffin two certain lots on Hunt street by reference to "the Orange Grove tract as laid off and map made for the proprietors by D. Knox"; but the futility of this as an act of dedication is shown by the fact that the legal title at that time was in the trustees, nor does it appear ever to have revested in any part in the grantor, that Bloodgood owned an equity in a one-twelfth interest only in the tract, so that he had not the power to dedicate for his co-owners, and that his alleged deed was executed by M. H. Bloodgood whose power of attorney does not appear.

The conclusion that no dedication of the area in controversy is shown by the evidential facts thus far stated rests upon these well and abundantly settled principles of law viz.: the act of dedication is in the nature of a conveyance of title and interest in land, it can only be made by the owner, and the burden of proving it, including the ownership of the dedicator, rests upon the party asserting the dedication. Johnson v. Common Council of Dadeville, 127 Ala. 249, 28 So. 700; West End v. Eaves, 152 Ala. 339, 44 So. 588; Burleson v. Hamilton (Ala. Sup.) 104 So. 253;¹ 18 C. J. p. 43, § 16. And this in particular it seems necessary to note:

"Proof of dedication by inference from acts of mapping and platting land, and selling lots by reference to the map, is insufficient, unless the sales are shown to have been effectuated by conveyances. * * * The mere act of mapping, platting, and selling, not followed by conveyances or public use of the land, will not prove dedication." 18 C. J. 61.

To quote the language of the New Jersey Supreme Court in Vanatta v. Jones, 42 N.J. Law, 563:

"The owner of lands may map and lay them out into streets and avenues and blocks, at his own free will, and the public will acquire no interest therein until, by some decisive and irrevocable act, either toward the public or toward a grantee, he renders it improper and unjust to permit him to deny the public use and character of the highway."

True, also, that by a decree of the chancery court at Mobile, rendered in 1858 in a cause between Adams, Smith, and others, complainants, v. McCoy, Norris, and Magee, trustees named in the deed of trust of 1835, to which we have referred, it was ordered that so much of the lands conveyed by the deed of 1835 as had not been disposed of at the sales in 1835-36 "be sold [by the trustees, two of whom had been replaced by the court] in city lots or squares, to be laid off in conformity with the plan adopted at the sales of 1835 and 1836"; but to this direction of the decree cannot be assigned the effect of declaring a dedication by the sales in 1835-36. It would be a matter of some difficulty to interpret "plan" in this decree to mean "plat" according to the "Dean Knox Map," and yet without such interpretation it sheds no light whatever, competent or incompetent, upon the question at issue. The plan of 1835-36 involved elements other than a platting of the area then in part disposed of, and the purpose of the decree was to authorize and direct the disposition of an area largely in excess of that set apart for sale in 1835-36 and in excess of the territory comprised within the "Orange Grove tract" shown by the "Dean Knox Map." The record in the cause in which the decree of 1858 was rendered is persuasive that there was a plan according to which the sales of 1835-36 were conducted, and it may be conceded there was a plat as a part of the plan, but, before the reference to a plan in the decree can take on any significance in that peculiar connection, it must first be known what was the plat according to which the previous sales had been made, and that, so far as appears from the evidence in this cause, was merely a plat of the territory south of Hunt street. And, apart from the considerations mentioned, the decree cannot be given the interpretation suggested for the reason that, so interpreted, it would lie wholly without the field of the issues in the cause in which it was rendered. Hence our conclusion that the decree of 1858 adds nothing to the contention for a dedication prior to its date.

As for the sales made in express pursuance of the decree of 1858, we feel constrained by the facts in evidence to hold that they, also, are ineffectual as constituting a dedication to public use of the area to which reference has been made as the "Marmotte wharf." These sales were made by reference to "a plan of a part of the Orange Grove, made and projected by P. J. Pillans, city surveyor, at the instance of said parties of the first part [the trustees] under the direction of the committee [of proprietors] aforesaid, and now [then] of record in Book of Maps No. 1, pages 1 and 2, in the office of the judge of probate of Mobile county," as the recitals of the deeds show. This map, as heretofore mentioned, shows streets, blocks, and areas, including the area hereinbefore designated as "Marmotte wharf," in part identical with the "Dean Knox Map." But it shows a broad swath laid across the tract by condemnation to the use of the Mobile Ohio Railroad, and a curvature of Royal street (which had previously appeared as running north and south in a straight line) to make it conform to the western margin of the railroad tract. The decree, as we have shown, directed a sale in city lots or squares "to be laid off in conformity with the plan adopted at the sales of 1835 and 1836"; but lodged in the trustees "a discretionary power to cause surveys and plans to be made and streets to be marked out and filled up and graded so as to prepare and to expose the lands for sale to the best advantage." It might well be considered, therefore, that, in general, the "Pillans Map" was a new map made under the above quoted authority of the decree, though in greater part, it may very easily be inferred, its locations and measurements were copied by the draftsman. But, apart from those differences, it departed from the "Dean Knox Map" in one particular which seems to be of great significance in the present connection: It omitted the inscription "Marmotte wharf" which appeared on the "Dean Knox Map" within the lines marking out the area now in dispute.

Such an explicit designation is not always necessary to show a dedication to public use; the intent to dedicate may be inferred from "the relative location of blank spaces and lots or blocks and from the purposes to which the lots or blocks are expected to be devoted." East Birmingham Realty Co. v. Birmingham M. F. Co., 160 Ala. 461, 49 So. 448; Burleson v. Hamilton, supra. "To show an intent to dedicate a space marked on a plat as a street or alley it is not necessary that the space should be designated as such in express terms. It will be sufficient if upon consideration of the entire plat there is manifested an intent to dedicate the strip as a street or alley. Nevertheless, if all that appears upon the face of the plat is a blank space, and there is nothing to show that the land covered by it has been devoted to a public use, it cannot be held from the face of the plat alone that the owner intended by the recording of the plat to devote the premises represented by the blank space upon the plat to the public use." 18 C. J. p. 61, § 46. If it appears that the reference to streets or alleys shown by a map or plat is for the purpose of description only, there is no dedication. Hoole v. Attorney General,22 Ala. 197; 18 C. J. p. 61, § 47.

We have taken note of authorities which hold that there is an essential difference between wharves and other public places in respect of the manner of dedication; that a wharf may be either public or private, and its delineation and name on a map have no effect in determining its character. Palen v. Ocean City,64 N.J. Law, 672, 46 A. 774; 18 C. J. p. 65, § 52. The reason is said to be that "a landing may be public in the sense that it is open to all comers, but wharfage is demandable by some one, and, in order to conclusively indicate that the public is to have a proprietary right, something more than calling the structure a wharf is essential." But, strictly speaking, the essential requisite of a wharf is an artificial construction which facilitates the landing, the loading, and unloading of vessels for water carriage. 28 R. C. L. p. 16. Bayou Marmotte, or One Mile creek, is a water in which the tide ebbs and flows, is navigable for barges and other small vessels, and we would have no difficulty in holding that the area in controversy would have been dedicated to public use as a landing place, as a species of public place, had its designation as "Marmotte wharf" on the "Dean Knox Map" been reproduced on later maps, or had the proprietors at any time made sales of lots by reference to the "Dean Knox Map" without more. As it is, the omission of that designation from the "Pillans Map" appears to be significant as lending support to the notion that the proprietors, if they had ever entertained the intent to dedicate that area to public use, had subsequently come to a different purpose, and this view gathers weight when taken in connection with the fact that in all sales made under authority of the decree of 1858, conveyances of the lots along the water's edge, covering the entire front now in controversy, were made by reference to the lot and block numbers shown on the "Pillans Map," where lot dimensions, no matter from what source taken, in figures which would not locate the lots as lying over and across the so-called wharf, it is true, but nevertheless with additional descriptions of the lots conveyed as "bounded by Marmotte Bayou or One Mile Creek," or as "fronting on the west side of the channel of said bayou or creek," or as "extending to the channel of Bayou Marmotte or One Mile Creek," etc.

The recitals of these deeds are not accurate, their descriptions are confused, and their interpretation not altogether free of difficulty. They are, however, drawn substantially to one model, with the difference that those which convey lots not attingent upon the bayou or the area in controversy contain no reference to it. As we have heretofore pointed out, the sales of 1835-36 were of lots south of Hunt Street — a part of the "Orange Grove tract." By way of showing authority for the sales in 1859, the uniform recital is that the grantors, "trustees of the Orange Grove," did, in virtue of the decree, expose for sale "the portions of the Orange Grove and Lorent plantation [the plantation having been also included in the deed to the trustees] which were not disposed of at the sale thereof in 1835 and 1836 * * * in city lots or squares laid off in conformity with the plan adopted at the said sales of 1835 and 1836 * * * and in squares and lots and of the same dimensions and boundaries as laid down in a plan of a part of the Orange Grove, made and projected by P. J. Pillans, city surveyor, at the instance of said parties of the first part," the trustees aforesaid.

When a deed refers to a plat or map, the plat or map becomes a part of the deed, and the whole is to be construed as writings in general are construed. All marks and lines, must, if possible, be given effect, and ambiguities must, within reasonable limits (Chicago v. Hogberg, 217 Ill. 183,75 N.E. 542), be construed in favor of the public in cases involving dedication to public use. 18 C. J. 108-110. But in every case of the kind the intention of the owner must be fairly discernible from his acts and declarations (O'Briant v. O'Briant, 160 Ala. 457, 49 So. 317), and, as we have said, a dedication or grant to the public is not to be presumed; it must be proved. And if the acts and declarations of the owner are equivocal they are insufficient to establish a dedication. Florence v. Florence Land Co., 204 Ala. 175, 85 So. 516.

The most pregnant circumstance in favor of the contention for dedication, remaining after a close analysis of the evidence, is the fact that, if there was no dedication, some of the lots along the water front would be left without access from the neighboring streets. In East Birmingham Realty Co. v. Birmingham M. F. Co., supra, importance was attached to a similar situation as implying dedication, and very properly so; but that circumstance cannot be accepted as conclusive in the present case, because, for one thing, access to a tidewater highway was arranged for all the lots, and — this, when considered in connection with omission of "Marmotte wharf" which had appeared on the "Dean Knox Map," conclusive to the contrary, as we think — because the conveyances which disposed of these lots in terms described them as bounded by or extending to the channel of the bayou or creek, therein departing from the substantial form which appears to have been adopted in the conveyances of the other lots. These lots along the water front were described according to the lot numbers shown by the "Pillans Map," and as being "of the same dimensions and boundaries as laid down" in that map; but further they were described as bounded by the creek or bayou or as extending to the channel thereof.

The rule in such cases is well settled that monuments, whether natural objects or artificial marks, are allowed to dominate courses and distances, "thus, course and distance shall yield to natural and ascertained objects, as a river, a stream, a spring or a marked tree." Doe ex dem. Miller v. Cullum, 4 Ala. 582; Crampton v. Prince, 83 Ala. 250, 3 So. 519, 3 Am. St. Rep. 718; Barker v. Mobile Electric Co., 173 Ala. 36,55 So. 364. "Where by giving to monuments a controlling influence, absurd consequences would ensue, or where it is obvious that courses and distances furnish the most certain guide to the location and quantity of the land, the latter should be followed." Doe ex. dem. Miller v. Cullum, supra. But in this cause it appears to us to be impossible to affirm either that absurd consequences would ensue from a ruling to the effect that there was no dedication of the area in dispute or that the figures on the map furnish a more certain guide than the reference to the channel of One Mile Creek.

Our attention is directed to the fact that the trustees, reporting to the court their execution of the decree of 1858, reported the sale of numerous lots according to the "Pillans Map," such sale being held on April 18, 19, 20 and 21, 1859, and being the first sale under that decree, and that the report mentioned sales of some lots remote from the water front, a sale to E. V. George, for example, ahead of the sales of the lots fronting on the creek, and upon this foundation is laid the argument that the sales thus first mentioned in the report antedated the sales of later mention, and so that there had been a dedication of the entire tract then offered for sale by reference to the "Pillans Map," which the trustees, grantors, donors, could not undo or affect by their later sales of the lots along the water front in which later cases they described the lots as bounded by or extending to the channel of the bayou or creek. We are unable to attach any importance to the order in which the sales were mentioned in the report. Possibly the trustees did expose the lots for sale in the order in which they were mentioned. But that sale, — or those sales, as that form of expression be preferred, — though extending through four days, constituted one proceeding under one decree, all the results of which were reported in one report and approved by one decree of the court, thus taking effect at one time. Each of the conveyances is therefore to be construed in connection with all the others. City of Denver v. Pearce,13 Colo. 383, 22 P. 774, 6 L.R.A. 541; 26 R. C. L. 738. Each must be given full effect according to its specific terms unless in conflict with some other; and, obviously, there is no conflict between the deeds dedicating the streets to the public according to the map and deeds reserving to private ownership lots fronting on the water's edge.

The last suggestion requiring notice is that the true interpretation of the deeds extending the boundaries to One Mile creek is that they conveyed "the fee subject to the easement shown on the 'Pillans Map' as being imposed upon the 'Marmotte wharf' area." * * * In this way the descriptions in this class of deeds can be reconciled, avoiding a conflict in other provisions of the instrument." Upon further consideration we do not find that this suggestion adds to the weight of the case for dedication. The differences in the two descriptions are of no consequence in this cause except as they may or may not affect the ascertainment of the grantors' intent with respect to dedication. It is clear enough that, as between the grantors and the purchasers, at their sale complete proprietorship passed to the purchasers along the water front unless, by the deeds to them and incumbrance on their purchases, an easement in favor of the public was clearly shown, since, as has appeared, the conveyances of lots remote from the water front had not the effect of dedicating the area in dispute — this, because conveyances of the water front lots were made in terms significantly different from the others. The construction of the water front deeds in favor of the grantees therein, as they must be construed, is that they passed an unincumbered property right.

At the argument some stress was laid on the case of McAlpine v. Chicago, etc., R. Co., 68 Kan. 207, 75 P. 73, 64 L.R.A. 85, 1 Ann. Cas. 452. In so far as that case determines that a strip of land lying along the bank of a river and definitely dedicated to public use as a "levee" does not revert to the dedicators by reason of misuse or nonuse, unless perhaps its use for the dedicated purpose has become impossible, or so highly improbable as to be practically impossible, we find no reason to doubt its authority. Smith v. Opelika, 165 Ala. 630,51 So. 821. But the question of original dedication vel non was not at issue in that case, and hence it is no authority on the question here which relates exclusively to the subject of the original dedication of the area in dispute — at least that is the only issue we have considered to require discussion. But, while the total neglect by the municipal authorities of the area in question for 60 or 70 years and their acquiescence in the uses which some of the appellees have made of a part of it for a number of decades may not be accepted as evidence of a reversion to the dedicators, in case there was a dedication, these circumstances may no doubt be looked to for what they may be worth, in connection with all others bearing upon the question, in determining the original intent as to dedication and acceptance by the public, which also is necessary to a dedication.

As to parts of Orange, Morgan, and Marion streets lying within section 11 as the same are shown on the "Pillans Map," the trial court decreed that there had been no dedication, for the reason that at the time of the sales in 1859 the title to the area so described was in the government of the United States. A patent to these areas — that is, to the inclusive fractional section 11 — was in evidence. This patent, of date October 30, 1879, put the title of the government in James L. Hamilton. This title seems to have passed by quitclaim to J. M. and T. Meaher. Appellees do not connect themselves with this title in J. M. and T. Meaher; but that is of no consequence, for, obviously, there could have been no dedication by private individuals while the title was in the government. Nor was there evidence that title had passed out of the government prior to the patent to Hamilton; nor do we see that there is any element of estoppel against appellees or any of them to affirm the title in the government prior to its date.

The argument for an estoppel rests in the main upon the proposition that the deed to the trustees and the decree of 1858 purported to pass the title to every inch of the territory in dispute, and, since appellees claim title through conveyances from those trustees under the decree, they are estopped to deny the lawful existence of any easement or public right of way purporting to have been established by those conveyances and that decree. The bill refers to the defendant Alabama Corn Mills as the owner of the property attingent upon these parts of these streets as designated upon the "Pillans Map," and appellee's claim of possession and ownership is not denied. If such owner was party to any conveyance by reference to the plan of streets shown by the map, it would be conceded that they would be estopped to deny such streets in the absence of some such express qualification as affected the titles to lots on the margin of the creek. Teasley v. Stanton, 136 Ala. 641,33 So. 823, 96 Am. St. Rep. 88. But the record does not show the origin of this appellee's title. For aught appearing it may have traced its title back to the government. It does not appear that this appellee or its predecessors in title purchased at the sale in 1859. There was no estoppel against the government, of course, nor does any fact appear to estop this appellee, whether it succeeded to the title of the government or not, from showing that there was no dedication of these parts of streets just here in question, for the very good reason that at the time of the alleged dedication the title to the property was in the government of the United States. It is not contended that anything has occurred since the date of the patent to change the status of right and title then created.

It results that the decree rendered in the trial court must in all respects be affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE, MILLER, and BOULDIN, JJ., concur.

GARDNER and THOMAS, JJ., dissent.

¹ Ante, p. 198.