McPhillips v. Brodbeck , 289 Ala. 148 ( 1972 )

PER CURIAM.

This case involves the vacation of a portion of a public way which will hereafter be referred to as a “street” in Baldwin County. The street in question lies within a recorded plat known as Brodbeck & Zundel Brothers and leads to Mobile Bay. It is the western end of the street that was vacated. The complainant, Arnold M. Brodbeck, Jr., owns a lot which abuts Zundel Street east of that part which was vacated. The respondents Carolyn L. McPhillips, Joseph A. McPhillips, and Norman Nicolson, own all the property on both sides of the western end of Zundel Street. A copy of the above mentioned plat is appended as an exhibit to this opinion so that the geography of the case may be better understood.

The complainant filed a bill in equity to set aside the vacation of the western end of the street and to enjoin respondents from interfering with his use of the street. The Circuit Court of Baldwin County, in Equity, entered a decree granting the complainant the relief prayed for and it is from this decree that this appeal is taken.

The pertinent facts were stipulated, and it was on the basis of these facts that the Circuit Court must necessarily have based its decree. The facts set forth in the stipulation were essentially the same facts set forth in the bill of complaint, to which appropriate demurrers were filed, presenting the question as to whether or not they entitled the complainant to the relief prayed for. We now set forth the stipulation:

“STIPULATION

“That the parties by and through their respective Attorneys, in open Court, at the pre-trial conference set for May 24, 1971, stipulate and agree that the facts to be submitted to the Court in this cause are:

“1. That there is a Sub-division called Brodbeck & Zundel’s Subdivision on record in Mise. Book 1 at page 247, Baldwin County Probate Records, which was recorded in the office of the Judge of Probate on January 25, 1909; that said sub-division has in it a street or public way-called Zundel’s street as appears on the Plat running East and west from the Point Clear Road, now U. S. Highway 98, to Mobile Bay;

“2. That Complainant, Arnold M. B rod-beck, Jr. is an owner on Zundel’s Street owning the “Store Lot” shown on Complainant’s Exhibit A; that the Respondents, McPhillips and Nicolson are abutting owners ón Zundel’s Street, as shown on Complainant’s Exhibit A;

"3. That on the 24th day of August, 1970, the Respondents executed a declaration of vacation and submitted the same to the Baldwin County Commission’s [sic] for said Commission’s assent thereto; that said Baldwin County Commission adopted a Resolution at a meeting of said Commission held on October 6, 1970, in which it assented to said vacation; that said Respondents are the sole owners of the property abutting on that part of said Zundel’s Street which is described in said declaration of vacation; the metes and bounds description contained in the declaration of vacation describes the portion of Zundel’s Street shown on complainant’s Exhibit A as lying between ‘McPhillips’ property and ‘Nicolson’ property.

“3-A. Complainant has access to and from his property by way of U. S. Highway 98.

“4. That Complainant has no other convenient access from his property to Mobile Bay except by Zundel’s Street as shown in the Plat of said Sub-division.

“5. That on October 20, 1970, the Baldwin County Commission adopted a Resolution undertaking to rescind its prior assent to vacation of said public way;

“6. That the Complainant had no notice of the proceedings for vacation and did not assent thereto;

"7. That after the declaration of vacation, with certified copy of the resolution of assent was filed October 13, 1970, and recorded in Mise. Book 22, page 395, Baldwin County, Alabama Probate records, the-Respondents stopped up or obstructed theZundel’s Street and this action was-brought for the purpose of having them remove the obstruction, and to set aside the-declaration of vacation;

“8. That the appropriate exhibits are-attached hereto and are marked Complainant’s Exhibits A. and B. and Respondents” Exhibit 1.

“Dated at Bay Minette, Alabama, this-the 24th day of May, 1971.

"/s/ Wilson Haves_

Attorney for the Complainant

/%/ G. Van Antwerp_

/%/ Mylan R. Enael_

“/s/ James R. Owen_

"Filed: May 31, 1971 Attorneys for the Respondents: Eunice G. Tindal, Register"

The record shows that the street was vacated by the Baldwin County Commission under the provisions of Art. 2, § 32, Tit. 56 of the Code of 1940, which section is now set forth (the emphasis being ours) :

“§ 32. Vacation of any street or alley by owners of abutting lands. — Any street or alley may be vacated in whole or in part by the owner or owners of the land abutting the street or alley, or abutting-that portion of the street or alley desired to be vacated, joining in a written instrument declaring the same to be vacated, such written instrument to be executed, acknowledged and recorded in like manner as conveyances of land, which declaration being duly recorded shall operate to destroy the force and effect of the dedication of said street or alley or portion vacated and to divest all public rights, including any rights which may have been acquired by prescription, in that part of the street or alley so vacated; provided, however, that if any such street or alley is within the limits of any municipality, the assent to such vacation of the city council or other governing body of the municipality, must be procured, evidenced by a resolution adopted by such governing body, a copy of which, certified by the clerk or ministerial officer in charge of the records of the municipality must be attached to, filed and recorded with the written declaration of vacation, and if any such street or alley has been or is being used as a public road, and is not within the limits of any municipality, the assent to such vacation of the board of revenue or court of county commissioners of the county in which such street or alley is situated must be procured, evidenced by resolution adopted by such board or court, a copy of which certified by the chairman or president or other head thereof, must be attached to, filed and recorded with the declaration of vacation. Such vacation shall not deprive other property owners of such right as they may hawe to convenient and reasonable means of ingress and egress to and from their property and if sttch right is not afforded by the remaining streets and alleys, another street or alley affording such right must be dedicated.

“The provisions of this section shall not be held to repeal any existing statute relating to the vacation of streets or alleys or parts thereof. (1939, p. 110.)”

This brings us to the legal principles involved in the determination of this cause. We pause to add that insofar as we have been able to ascertain, no similar factual situation has heretofore been presented to this court. The 4th Edition of “Roads and Streets” by Elliott, whose work is often quoted by this court, begins Chapter XLVIII with this statement:

“ ‘Once a highway always a highway’, is an old maxim of the common law to which we have often referred, and so far as concerns the rights of abutters, or others occupying a similar position, who have lawfully and in good faith invested money or obtained property interests in the just expectations of the continued existence of the highway, the maxim still holds good. Not even the legislature can take away such rights without compensation. Such, at least, is the rule which seems to us to be supported by the better reason and the weight of authority, although there is much apparent conflict as to the doctrine when applied to the vacation of highways.”

Elliott further states on page 1678:

“The legislature, by virtue of its general power over the highways of the state, may, as we have said, undoubtedly order the vacation of such of them as it may deem expedient to vacate, but where the vacation of a highway will cause special injury to an adjoining owner he is entitled to compensation. It is substantially agreed by the courts that the abutter has a private interest in the road or street as such, and if he has this right it is property which can not be taken from him without compensation. * * * If this special right is of value —and it is of value if it increases the worth of his abutting premises — then it is property, no matter whether it be of great or small value.”

We quote the above not because all of it is necessarily applicable to this case, but rather to show that the vacating of dedicated streets is not lightly to be viewed when it deprives others, and especially abutting land owners, of their use.

A corollary rule of law, and one recently stated in the case of Markstein v. City of Birmingham, 286 Ala. 551, 243 So.2d 661, held:

“We hold that where a street is partially vacated or obstructed, with no portion of the vacated or obstructed part abutting the land of the owner claiming damages on account of such vacation, or obstruction, the owner is not entitled to damages if, despite the vacation or obstruction, he has reasonable access over the street abutting his land to the general street or highway system.”

In the present case, however, we are not dealing with damages, for none are sought, but with two aspects of § 32, Tit. 56, of our Code. Nor are we here dealing with a vacation of a street initiated by public authority to better serve the public interest where the rule of public necessity must override private convenience, but on the contrary we deal with a statutory provision whereby private interests may under prescribed circumstances deprive others of the use of a portion of an existing street in order to further the personal desires of such private interests. Such a statute should be strictly construed so that it not be an agency for oppression or misuse. The fact that sanction by governmental authority was necessary for the vacation to be effective does not change its nature.

That the statute must be followed is shown by Bass v. Sanders, 282 Ala. 546, 213 So.2d 391. This opinion by Justice Merrill holds ineffective an attempted vacation not approved by county authority.

Neither the pleadings nor the decree raises any question as to the constitutionality of the section, and it having long been the law that the legislative powers concerning our streets and highways can be delegated to cities and counties, we limit ourselves to a consideration of the construction of the above statute and its proper application to the stipulated facts. The statute is specific that the vacation of a street by the County Commission in which it is located "shall not deprive other property owners of such right as they may have to convenient and reasonable means of ingress and egress to and from their property and if such right is not afforded by the remaining streets and alleys, another street or alley affording such right must be dedicated”. There can be no doubt, for the stipulation so asserts, that the vacating of the western portion of Zundel Street did deprive the complainant of his only convenient means of ingress and egress to and from his property to Mobile Bay. Is the loss of this right compensated for the fact that he did have reasonable or convenient access to the general highway system? Before the street was vacated he had two valuable rights — one, to get to the open waters of the sea; the other to the open roads of land. Now he has but one, no other convenient street or alley affording access to the Gulf having been provided the complainant.

It is a matter of common knowledge of which we are not unaware that for those who live on or near the beautiful shores of-our bays and gulf convenient access to them is of the greatest benefit and that such access enhances the value of such property. We know of no logical reason why § 32, supra, should not apply to ingress and egress to waterways as well as to highways. The fact that the complainant could conveniently get to a general highway system would be of no solace to him when deprived of his only convenient access to the waters of Mobile Bay and the Gulf beyond. We, therefore, hold that the closing of Zundel Street having deprived the complainant of his only convenient and reasonable ingress and egress to Mobile Bay, and no other substitute access having been provided as required in Tit. 56, § 32, the Circuit Court correctly set aside the attempted vacation and appropriately granted the related relief. The decree of the trial court is affirmed.

Affirmed.

HEFLIN, C. J., and COLEMAN, HAR-WOOD, BLOODWORTH, and MADDOX, JJ., concur.

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