Ivey v. City of Birmingham

SAYRE, J. Appellant sued the city of Birmingham for damages on account of physical injuries suffered by him when he fell into a ditch, alleging with appropriate detail that the municipal authorities of the defendant city had negligently allowed said ditch to be and remain in Thirty-Fourth street, whereby he was injured. Errors are assigned upon the rulings of the trial court in giving and refusing special charges requested in writing by the parties. Very clearly it appears that the result of the trial was made to turn upon the inquiry whether Thirty-Fourth street at the point where plaintiff received his injury was at the time a public street of the city of Birmingham in such sort as to impose upon the municipal authorities the duty of keeping it in a fit condition [204] for public travel. This inquiry was submitted to the jury’s decision as a question of fact, and the charges drawn into question were designed to elucidate the principles of law to be observed by the jury in determining the answer on consideration of the evidence, which will be stated by the reporter substantially as it is to be found stated in the transcript of the bill of exceptions. We have only to consider whether there was error in the court’s ruling as to any one of these charges. (1, 2) Charge 1, requested by plaintiff and refused by the court, would have been useful to plaintiff in the event the jury found that the status of Thirty-Fourth street — or that part of it about which we need be concerned — as a highway had been established before its incorporation into the city of Birmingham. The owner of the property through which this street was originally laid off could not impose his dedication of the street upon the public by platting the territory and disposing of lots according to the plat. He thereby made it a way, irrevocable as to purchasers; but to devolve upon the public the duty of maintaining the way as a public road or street it was necessary that there should be an acceptance by the public of the dedication. Such acceptance, for one way, may be shown by long-continued user by the unorganized public as of right. The length of time of such user, from which an acceptance may be implied, “does not depend upon the principles of law governing prescription, but is controlled entirely by the circumstances of each case, the main question being whether the public convenience and accommodation would be materially affected by a denial or interruption of the enjoyment.” — Benton v. St. Louis, 217 Mo. 687, 118 S. W. 418, 129 Am. St. Rep. 561, note, pages 609, 621; Mobile v. Fowler, 147 Ala. 403, 41 [205] South. 468; 1 Elliott on Roads & Streets (3d Ed.),' §§ 170, 171. Under the evidence in this case is was for the jury to say whether Thirty-Fourth street had been accepted by the public as a highway previous to its incorporation into the city of Birmingham. (3) If that part of Thirty-Fourth street upon which the injury occurred had been completely impressed with the character of a highway when the territory through which it had been laid off was annexed to the city, then the municipal authorities, by bringing it within the corporate limits and leaving it open for travel, became bound to exercise reasonable care to keep it in safe condition for travel. — Frankfort v. Coleman, 19 Ind. App. 368, 49 N. E. 474, 65 Am. St. Rep. 412; note to Elam v. Wt. Sterling, 20 L. R. A. (N. S.) 575. Appellee cites and quotes McCain v. State, 62 Ala. 138, as follows: “A town, created and incorporated as this [Anniston] was, out of rural territory, having, perchance, its public roads adapted to its wants and conveniences as a rural community, cannot be bound by any principle of law to adopt and keep up, as a public street, every public road or highway that may have been in use before the change. * ■* * We think the corporate authorities were authorized to abolish the street, or, to refuse to recognize it as a public street, for not repairing which the appellants were indicted.” This language was used in a case in which the municipal authorities had passed an ordinance abolishing , or discounting a road that had been brought into the incorporated ..town — a case which turned-upon the inquiry whether the municipal authorities had power to pass such an ordinance. .It does not expressly or by implication deny — to state the case at. hand — that if Thirty-Fourth .street had, been accepted by the- public as a highway prior to its incorporation into the .munic-, [206] ipal territory, it became the duty of the city to care for it or by some act of public notoriety to disown it. There was no evidence tending to show the last-named alternative, and, we take it, plaintiff was entitled to have the law stated in respect to the first without reference to the last. (4) Appellee advances the idea that the ditch was not a defect for which the municipality was chargeable under the statute. The argument is based upon the opinion of 'the Court of Appeals in Bessemer v. Whaley, 8 Ala. App. 523, 62 South. 473. But that argument has been disposed of by us in Bessemer v. Whaley, 187 Ala. 525, 65 South. 542. If Thirty-Fourth street was a public street in the city of Birmingham at the time of plaintiff’s hurt, then the ditch was a defect in the street, to remedy which defendant ought to have exercised itself. Nor do we find.anything in Benton v. State ex rel. Girard, 168 Ala. 175, 52 South. 842, in necessary conflict with what we have said. (5) Appellee also criticizes the charge under consideration, for that it predicated municipal duty in respect of highways without qualification, whereas highways may be private, in which case the public authorities owe no duty. The first section of Elliott’s Roads and Streets, to which many adjudicated cases are cited, answers this contention in this language: “Ways are either public or private. A way open to all the people is a highway. The term ‘highway’ is the general name for all kinds of public ways, including county and township roads, streets and alleys, turnpikes and plank roads, railroads and tramways, bridges and ferries? canals and navigable rivers. In short, every public thoroughfare is a highway.” We are of the opinion that the refusal of charge 1 was reversible error. [207] (6) It cannot be the subject of dispute that the city adopted a part at least of Thirty-Fourth street, between Avenue F and Clairmont avenue as a public street and exercised jurisdiction over it. The fact that the authorities improved a part of the street, assessing the cost against the attingent property by virtue of the statute which grants that power to municipal corporation, is susceptible of no other explanation. In the circumstances shown in the bill of exceptions, we think this fact should have been received as prima facie evidence of an adoption of the entire street between these avenues. Appellee cites Ruppenthal v. St. Louis, 190 Mo. 213, 88 S. W. 612, and some other earlier Missouri cases to sustain its position; but that case has been overruled on the point at issue. — Benton v. St. Louis, 217 Mo. 687, 118 S. D. 418, 129 Am. St. Rep. 561. Our. opinion on this point seems to be sustained by the reasoning of a majority of the courts that have considered the question and to be enforced by the logic of undisputed facts. See note to Benton v. St. Louis, 129 Am. St. Rep. 617. Charge 20 should have been refused. We need not follow the assignments of error further. We have said enough to indicate our opinion as to the questions involved. The judgment will be reversed, and the cause remanded for another trial. Reversed and remanded. McClellan, be Graefenried and Gardner, JJ., concur.