Attorney General v. Lakeview Land Co.

TYSON, J This bill was filed- to enjoin the respondent from obstructing the- free use by the public of a certain described tract of land, designated in the pleadings as Lakeview Park, upon- the ground that it has been dedicated to the public by its former owner, the Elyton Land Company. Dedications are classified into express and implied. It is admitted by appellant that there was no express dedication by the Elyton Land Company. The contention, however, is- that an implied one has been established by the evidence. To constitute a dedication of either class, confessedly, there must be an intention to- dedicate, anvvmus dedicandi, on the part of the owner of the property, and an acceptance by the public, or by some -authorized person or body acting -for and in its behalf. The burden of showing a dedication is, of course, upon the party alleging it. Be [298] ing a voluntary donation, it will- not be presumed, but the dearest intention to do so must be shown. And, if the use by the public is merely permissive, “As existing by the toleration of the owner, and in subordination to, or recognition of, an implied license from him, the right will not mature into a. title by prescription, but is revocable at pleasure.” — Steele v. Sulliran, 70 Ala. 589. . And so', too, the user of the public must be of such character as to exclude the private rights of the owner. ITe must be shown to have abandoned his property rights in and to the land, otherwise the use of it by the public, not inconsistent with those exercised by him, must be regarded as permissive only and not adverse. — Irwin v. Dixon, 9 Howard, 10, 30; Jones v. Bright, 140 Ala. 268. We need only apply these principles to the facts of the cascas disdosed by the evidence, which to our minds not only fails to establish, by that measure of proof required, a.n intention on the part of the Elyton Land Company to dedicate this land to public use,?, but, to the contrary, affirmatively negatives any such intention. Such acts, are shown to have been exercised by a certain class of the public, were entirety compatible with the rights of the company, as owner. The original map or plat of the lands belonging to the company, .showing a space in which this particular piece of land is situated, which was- actually converted by it into the park in controversy, has nothing on it, tending in the- remotest degree to indicate an intention to dedicate it to the public as a park. — Oswald v. Grenet, 15 Tex. 118. Some stress is laid in argument upon certain representations claimed to have been made by the president of the company, to purchasers of lots from it, that the park belonged to the public. Of the numerous witnesses examined, only one. testifies to any representations made by that officer with respect to this park. Assuming that officer, without special authority, had the power to' bind his company in the manner claimed, we do not find that he made the statement that the park was public. The testimony of the witness on this point is that the president stated to him that it was to be a public park and not that, [299] it was at tlie time a public park. But, aside from this- consideration, even- if it be true that the representation was made at the time it Avas made, the proprietary acts exercised by the company over the property, openly and notoriously,'clearly shoAved that it Avas not a public, park. The proprietary acts exercised by it were manifested by erecting on the land a large hotel, club house in use by a private club, two dwellings, an enclosed pavilion containing a theatre, dance hall, natatorium and restaurant; an orchard, a. garden, vineyard and green houses, a. lake upon which boats- Avere hired to visitors. From each of these improvements the company derived an income. The company ail along paid taxes upon the land and excluded negroes from the grounds. The grounds Avere also enclosed by a fence, and a person in charge of them. Thus wo see the manner of the company’s dealing Avith t-liis land Avas inconsistent with an intention to dedicate it. Upon a revieAV of the entire evidence, Ave think it clear that the purpose of the company in laying out this park, Avhieh Avas suburban, ayrs to induce a. portion oí the public, AAiiite people only, to patronize its car line. Such portion of it -as Avas left open Avas intended merely as a pleasure ground for those pei-sons who visited it, and this Avas the only right ever- accorded by the company to the public; one not at all inconsistent with its ownership. Affirmed. MoCiiEiiiAN, O. J., Huaipson and Anderson, J.J., concurring.