Gage & Co. v. Mobile & Ohio R. R. Co., 84 Ala. 224 (Ala.)

SOMEBYILLE, J.

The facts of this case, in our opinion, bring it fully within the principles settled in Steele v. Sullivan, 70 Ala. 589, and we might well affirm the decree of the chancellor on the authority of that case. The testimony set out in the record fails to satisfactorily show either a dedication of the alley in controversy by the owner, or its acceptance by the municipal authorities of the city of Mobile. A dedication of property to public uses will not be established by the courts unless the intention of the' owner to make such dedication unequivocally appears by clear and satisfactory evidence. — Forney v. Calhoun County, 84 Ala. 215. And, however long the user of property may be continued, if it appears to be referable as well to an implied license of the owner as to any assertion of adverse claim by the public, the courts will attribute it to the former and not to the latter source of origin.

The main reliance of the appellants to sustain the alleged dedication in this case are: (1) Certain oral declarations attributed to Charles P. Gage, who had been the owner of the property for over thirty years; and (2) a supposed adverse user by the public for over twenty years. The acceptance of the city is sought to be shown by certain maps made under the authority of the municipal officers, and by the erection of a gas light on Commerce street near the entrance of the open space or alley.

• To a proper understanding of the case it is important to keep in mind that, during the period of Gage’s alleged de

durations, which in some cases are ambiguous in meaning, he was a half owner of the ice house property, belonging to, C. P. Gage & Co., situated immediately north of the alley, and on the east side of Commerce street. He also owned the mill property on the south side of the supposed alley, and the wharf at the east end of the alley, and had an interest, for a time at least, in two steamers plying between Mobile and New Orleans, and landing at this wharf. The alley is shown to have been used by all who chose to pass through it going to and from the wharf, and afforded access also to the mill and ice house business. It is thus made probable, if not comparatively clear, that the alley was used by the public for the convenience of, and by the implied permission of Gage himself, in connection with the ice, mill and wharf business, and for the advancement of his own pecuniary interests.. No inference can be drawn, therefore, that such user was under any adverse claim in favor of the public, however long continued. “It is an important circumstance,” says Mr. Washburn, “in determining whether the user of the right claimed is adverse or not, that it is contrary to the interest of the owner of the land.” — Washburn on Easements, 87. It has often been said that an enjoyment with the consent, or consistently with the rights and interests of the true owner has no tendency to prove a conveyance from him, or to establish an adverse right. — Arnold v. Stevens, 24 Pick 106; Steele v. Sullivan, 70 Ala. 589, supra.* A license by a business man to enter his premises, extended to the public to attract custom, and as an auxiliary to the promotion of such business, can not be construed to be a dedication however long continued. It is, therefore, revocable at his option.

The deeds to the property adjoining and including the alleged alley repel the presumption of a dedication. In all the conveyances of this and adjacent property, running back from the commencement of this suit, in the year 1886, for over sixty years, there is nothing to indicate the recognition or existence of an alley any where in the entire square, within the compass of which the property in controversy is embraced. These deeds being of a solemn and deliberate character, and placed upon the public records, must be taken as so many affirmative declarations by the owners of the alley property in denial of the public right. This is emphasized by a deed made by Charles P. Gage, in 1885, in which he quit-claims to his partners in the ice house business an undivided half interest in thirty feet of ground just north of

tbe alleged alley, and, in describing tbe boundaries of this lot, be not only fails to mention tbe alley on tbe south side, but describes tbe land on tbe south side, which includes tbe alley, as his, ihe grantor's pro'perty. As evidencing a further denial of tbe public right, it is stated by one witness in tbe record, and not satisfactorily refuted, that for one or two years after tbe war tbe open space in dispute was closed by a fence and gate on Commerce street, without apparent objection by tbe city authorities, or tbe public, tbe enclosure being used as a private coal yard during tbis interval. As said in Steele v. Sullivan, 70 Ala. 594, supra, “where tbe recorded deeds of tbe lands or lots, adjacent to a street or alley, contain recitals or words of conveyance which repel tbe idea of a dedication, tbis is always a very strong fact to rebut tbe presumption arising from tbe use of tbe public.” And again it is said in tbe same case: “So, tbe creation of a gate, or other obstruction, across tbe entrance, rebuts tbe intention to dedicate an alley as a public highway.”

There are other minor facts in tbe record, but taking all tbe testimony together it falls very far short of proving a clear and unequivocal intention on the part of tbe owner of tbe soil to dedicate tbe supposed alley in controversy to the public use.

Tbe evidence of an acceptance by tbe public also is not satisfactorily proved. Tbe maps of tbe city, which commence with the year 1837 and come down to 1887, some half dozen in number, seem to us rather to repel tbe idea of a recognition by tbe city authorities of tbe existence of a public alley at tbe place of tbe irregular opening in controversy. But one of these maps, prepared in 1868, seems clearly consistent with its existence. Tbe others are repugnant to it. Tbe erection of tbe gas-light post near tbe entrance unexplained is a circumstance of but little weight— no more in fact than tbe erection of a like one in front of a church or a private banking bouse. Tbe testimony in the case does not clearly show any act on tbe part of tbe city from which we can infer unequivocally an acceptance of tbe supposed dedication.

It is obvious, in view of what we have said, that there is no room in tbis case for any operation of tbe doctrine of prescription. Tbe occupation by user being permissive and not adverse, tbe lapse of time did not prejudice tbe title of tbe complainant.

These considerations vastly outweigh tbe alleged declara

tions of Gage that be intended tbe alley for public use. Tbe testimony bearing on tbis point is not, in itself, free from ambiguity, and is quite as consistent witb tbe idea tbat be intended tbe public to use the alley in connection witb the wharf, mill and ice buisness, as with a purpose to abandon its use exclusively to tbe public. Tbe whole proof in tbe case supports tbe counter declarations of Gage tbat bis design was to leave tbe passage way in question open only for tbe promotion of bis own private enterprises, whether conducted by himself, or bis tenants.

Tbe bill is not framed witb tbe view .of claiming a private way of necessity in favor of complainants, which would entitle them to free access to and from their stable adjoining tbe alley way. Nor is tbe right to such a way sustained by tbe testimony, based, as it here is, on convenience rather than necessity. A dedication proper can be made only to public and not to private uses.

Tbe objections to testimony are not considered, as tbe result would be unaffected by them.

In our judgment, tbe decree of the chancellor dismissing the bill, is free from error, and must be affirmed.