Cochran v. Purser , 152 Ala. 354 ( 1907 )

SIMPSON, J.

The bill in this case was filed by the appellants against appellee, and sought to enjoin appel-lee from excavating, obstructing, building upon, or otherwise interfering with a public alley. The. bill alleges that complainants’ property lies immediately “along a public alley,” describing it; that said alley has “from time immemorial * * * been in general use by the public”; that it “has existed as a passageway, open to and in general use by the public, for so great a length of time that the memory of man runneth not to the contrary”; that “it has existed as a public alley for more than 20 years before the filing of the hill, and had been continued in general public use for more than 20 years prior to the date at which the respondent acquired title.” The appeal is from the decree granting the motion to dismiss the bill for want of equity.

This court has said, where a bill alleged that the road which was obstructed was a “public” highway, and failed to allege other facts showing that such was its character ,that, while that expression was a “mere conclusion of the pleader and would doubtless be subject to demurrer,” yet the bill was “sufficient to withstand the attack made by the motion to dismiss for want of equity,” as “it is an amendable defect.”- — Jones,, et al. v. Bright, 140 Ala. 268, 271, 37 South. 79.

While the mere use of a way by the public for a period .less than 20 years would not create the presumption of a dedication, without some act, clear and unequivocal, amounting to an explicit manifestation of an intention to dedicate it to the public, yet, if a way over reclaimed lands is left open for use by the public, and is used by the public as a highway, this may constitute the beginning of a prescriptive right of way, and, if continued without interruption for 20 years, the presumption is raised of a dedication or grant to the public. — Hoole & Paulin v. Attorney General, 22 Ala. 190, 196; Rosser v. Bunn & Timberlake,. 66 Ala. 89, 95; Steele v. Sullivan, 70 Ala. 589, 594; N. O. & S. R. R., etc., Co. v. Jones, 68 Ala. 49, 55; Western Railway of Ala. v. Alabama Gr. R. Trunk R. R., 96 Ala. 272, 279, 11 South. 483, 17 L. R. A. 474; Livingston v. Mayor of New York, 8 Wend. (N. Y.) 85 Am. Dec. 623, 630, et seq.; Elliott on Roads & Streets (2d Ed.) § 169, et seq.; 9 Am. & Eng. Ency. Law, p. 66 • et seq. As to whether the character of 'the use, in this case, was such as to create the presumption of dedication, or Avas merely permissive, must depend on all the facts and circumstances as developed in the evidence.— Jesse French, etc., Co. v. Forbes, et al., 129 Ala. 471, 29 South. 683, 87 Am. St. Rep. 71; s. c. 185 Ala. 277, 283, 33 South. 183, and cases cited supra.

The decree of the court is reversed, and a decree will he here rendered overruling the motion to dismiss the bill for want of quity.

Reversed and rendered.

Tyson, C. J., and Habalson and Denson, JJ., concur.