Clayton C. Strane and Ada D. Strane, appellees here, filed a bill of complaint in the circuit court of Montgomery County, in equity, to enjoin the respondents, appellants here, from blocking access to an alleged alley adjoining the complainants' property on the south and the respondents' property on the north. This appeal is by respondents from the final decree granting the relief prayed for.
The Stranes are the owners of lot 7, according to the plat of the Frances S. Powell Estate, as the same appears of record in the office of the Judge of Probate of Montgomery County in Plat Book 3, at page 77. This lot fronts approximately 52 feet on the east side of South Goldthwaite Street and runs back of equal width a distance of 218.5 feet. They went into possession of this lot in 1938 under a bond for title contract with the owner and have lived there continuously since that time. On September 21, 1950, they received a general warranty deed from the owner conveying the lot to them. This deed contains a recital that the grantor "does hereby release, remise, quitclaim and convey unto the said Clayton C. Strane and Ada D. Strane, their heirs and assigns, all of its right, title, interest or claim in and to any alleys, passageways or other easements in any way joining or serving the real estate above described".
On February 5, 1948, there was filed in the office of the Judge of Probate of Montgomery
It appears that houses were built and occupied on the lots in the Crum plat for many years prior to the recording of the plat. And, as we understand it, there is no question about Judge Crum's ownership of all of the property embraced in the plat at the time of its recording, including the 8-foot strip, unless there had been acquired by the public, prior to the recording, a prescriptive right to the use of the strip as an alley or other public way. A reference to the plat will show that no designation is given to the 8-foot strip as being an "alley", "public alley", "private alley" or otherwise, nor is there anything on the plat indicating any specific dedication, use or reservation of said strip.
It further appears that the lots in the Crum plat have been sold to the several respondents and that the deeds contain a provision giving to each respondent "the right of ingress or egress in and over the open court in front of said property and leading to Goldthwaite Street and also in and over an 8-foot alley in rear of said property."
The Stranes contend that the 8-foot strip is a public alley, first, by reason of its use by the public as an alleyway for the prescriptive period of twenty years or more, and, second, because it was dedicated as a public alley by the recording of the Crum plat and the selling of lots with reference thereto.
We have carefully examined and considered the evidence and have little difficulty in concluding that it is not sufficient to support a finding that the strip gained status as a public alley by prescription. It appears from the evidence that for at least 17 years there have been obstructions across the strip that have blocked its use as an alley or other public way. And such evidence as there is concerning its use by the public prior to that time is inconclusive and unimpressive. Clearly, it is not sufficient to show an adverse use by the public for the prescriptive period of 20 years or more.
Whether a dedication to the public has been effected by the recording of the plat and the sale of lots with reference thereto presents a more difficult problem.
We do not understand appellees to contend that there has been a statutory dedication of the alley, but rather that there has been a common-law dedication. The fact that there are statutory methods for dedicating lands to public use does not prevent a common-law dedication. East Birmingham Realty Co. v. Birmingham Machine & Foundry Co., 160 Ala. 461, 473, 49 So. 448.
There is a line of cases holding that "where a person plats land and lays off lots according to such plat and makes sale of one or more of such lots with reference thereto, he irrevocably dedicates the land designated thereon as streets, alleys, avenues, and highways to the public, for public uses." Lybrand v. Town of Pell City, 260 Ala. 534, 538, 71 So.2d 797; Talley v. Wallace, 252 Ala. 96, 97, 39 So.2d 672, 673; Nashville, C. & St. L. Ry. Co. v. Hulgan, 219 Ala. 56, 57, 121 So. 62, and cases there cited. In Smith v. Duke, 257 Ala. 86, 87, 57 So.2d 550, 551, the principle is stated as follows: "Nothing else being shown, it is unquestionably true that the platting and recording of the plat showing the park area in question and the sale of lots referring to that plat constitute an irrevocable dedication of the area marked `park,' except as may be authorized by statute." (Emphasis supplied.)
It is our view that the stated principle is not controlling in the case before us. That principle is based on estoppel. Manning v. House, 211 Ala. 570, 573, 100 So. 772. "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. It is the estoppel resulting from an effective grant, recognizing the highway, that produces the inference of dedication." 26 C.J.S., Dedication, § 23, p. 82. In the instant case we do not find any element of estoppel. Here, the deeds to the lots, instead of misleading the grantees or the public, clearly show, and put the grantees and the public on notice, that the owner did not intend to dedicate the strip to public use. If a dedication to the public had been intended there would have been no reason for conveying to respondents the right to use the strip. They would have had that right as members of the public. It seems to us that the deeds to the Crum lots definitely settle the purpose and intent in laying off the 8-foot strip. The granting of a right of ingress and egress in and over said strip negatives and excludes the presumption of an intention to dedicate the strip to public use.
The intent to dedicate to the public use is the foundation of every dedication. And the burden of proving a dedication rests upon the party asserting it. State ex rel. Davis v. Meaher, 213 Ala. 466, 484, 105 So. 562; Burleson v. Town of Hamilton, 213 Ala. 198, 200, 104 So. 253; Smith v. City of Dothan, 211 Ala. 338, 340, 100 So. 501. "Dedication is an affirmative act, and must be shown by affirmative evidence or its equivalent. If the acts and declarations of the owner are equivocal, they are insufficient to establish a dedication. * * * The intent to dedicate to the public use must be shown by unequivocal acts upon which the public has a right to rely." Burleson v. Town of Hamilton, supra [213 Ala. 198, 104 So. 254]. In Smith v. City of Dothan, supra [211 Ala. 338, 100 So. 502], the rule was recognized "that to establish a dedication the clearest intention on the part of the owner to that effect must be shown, and that the evidence must be clear and cogent and the acts of the owner relied on to establish a dedication must be unequivocal in their indication of the owner's intention to create a public right exclusive of his own."
From 16 Am.Jur., Dedication, § 17, pp. 361, 362, is the following:
The rule is thus stated in 1 Elliott, The Law of Roads and Streets, § 138, p. 164:
In view of our holding that an intent to dedicate does not appear there is no occasion to discuss whether there was an acceptance of the claimed dedication.
The decree is due to be reversed and one rendered here denying relief to complainants and dismissing their bill. So ordered.
Reversed and rendered.
SIMPSON, MERRILL and SPANN, JJ., concur.