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528 DOWDELL, J. The bill in this case was filed to abate an alleged public nuisance. That courts of equity have jurisdiction in such matters is a proposition not open to question. The arerments of the bill as to ownership and special damage are sufficient to authorize its maintenance by the complainant individually: Whaley v. Wilson, 112 Ala. 627, 20 South. 922; 9 Am. & Eng. Ency. of Law, 2d ed., 63, 64.
It is well settled by decisions of this court, 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 and alleys, highways, squares and commons to the public, for
uses : Western Ry. of Ala. v. Alabama Grand Trunk Ry. Co., 96 Ala. 278, 11 South. 483; Harn v. Dadeville, 100 Ala. 202, 14 South. 9; Sherer v. Jasper, 93 Ala. 530, 9 South. 581; Reed v. Mayor etc. of Birmingham, 92 Ala. 318, 9 South. 161; Erans v. Savannah etc. R. R. Co., 90 Ala. 51,7 South. 758; City of Demopolis v. Webb, 87 Ala. 659, 6 South. 408; Webb V. City of Demopolis, 95 Ala. 116, 13 South. 289; Douglass v. Montgomery, 118 Ala. 607, 24 South. 745; Avondale Land Co. 5. Avondale, 111 Ala. 527, 21 South. 318.
The land in question, which was surveyed and platted, and laid off in lots, was school land, being the sixteenth section of the township, and was so surveyed and platted for the purpose of sale by the school commissioners in 1834, under the act of January 15,1828, and acts amendatory thereof. The conten. tion of the appellants is, that the school commissioners, in the survey, platting and sale of said land, were without authority to dedicate any portion of the same to public highways, or other public uses.
The sale of the sixteenth section by the township trustees or school commissioners, pursuant to said act, was held valid by this court, in Long v. Brown, 4 Ala. 622.
The act of January 15, 1828, and acts amendatory thereof (see Aiken's Digest, 378-383), gave the township 529 trustees, as commissioners, the authority “to cause the sections (sixteenth) so elected to be sold, to be surveyed in such manner as they may think will command the highest price for the same, in lots which will not exceed eighty acres each, and shall cause a fair plat of the same to be made out by the surveyor, and shall fix a maximum price upon such lot or part. .... And shall exhibit the same to any person wishing to examine the land before sale, and the said plat shall moreover be exlibited
to all persons wisting to exariteite sare on the day of sale." Further provisions are a so zaje relating to the condition of sale as to paymens, etc.
The trustees or comnicores were the cfcers or agents of the state in the sale of tčelard. It was made their duty to cause the same to be servered and platted, and to be laid off in lots in such ander “as they may think" would command the highest price, the limitation in area of the lots being upward, not to exceed eit scres each. In this they were vested with a discretion, in the exercise of which, howerer, it was their duty to so divide the lard into los as o r.ake it command the highest price. If the locality was suitable for a townsite, and by a survey, platting and laving of into town lots, the highest price for the land could then be o tained, we think the act not only conserni the authority on the trustees to so lay off the land into lots for sale, but imposed that duty. If they had such authority, then cars they had the implied power and authority to make each and every lot accessible by a public highway, and to that end to make a delication of such highways to the public.
By an act of Congress the Fort Dearborn reservation was directed to be sold by the Senary of War. Yo special power was given to have the land surreved into lots in such manner as he might think would command the highest price, as was giren to the trustees in the eaze before us under the act of January 15, 1828, yet the strary dincted his surveyors to lay out a portion of the land into town lors and blocks, with streets, highways, allers, etc., and a plat surrey was made and lots 630 were sold with rference w such surver and plat. The supreme court of the United States held the same to be a valid dedication of such sinets, allers, high wars, etc.: tnited States v. Illinois Cent, R. R. CO., 151 T. S. 225, 14 Sup. Ct. Rep. 1015.
Our conclusion is that the respondents' demurrer to the bill was not well taken, and the city court properly overruled the same.
Dedication of Property to a public use is diseussed in the monographic note to State v. Trask, 27 Am. Dec. 559-570, and the recent cases of Thompson F. Maloner, 199 Ill. 276, 93 Am. St. Rep. 133, 65 X. E. 236; Kray v. Muggli, S4 Minn, 90 87 Am. St. Rep. 332, 86 N. W. &$2; Teasles v. Stanton, 136 Ala, 641, 96 Am. St. Rep. 88, 33 Sonth. 823. As to the estoppel of a vendor of lots as against his grantees, to deny the dedication of strips of the tract for streets, see Prescott v. Edwards, 117 Cal. 298, 59 Am. St. Rep. 186, 49 Pac. 178.
A Public Nuisance can be abated only by a public officer, except when the party desiring to abate it has some special interest in the abatement different from, and greater than, the interest of the community: Griffith v. Holman, 23 Wash. 347, 83 Am. St. Rep. 821, 63 Pae, 239; State v. Stark, 63 Kan, 529, 88 Am. St. Rep. 251, 66 Pac. 243. But if an individual suffers some particular loss or damage beyond that suffered in common with others, he has a right of action therefor: Knowles v. Pennsylvania R. R. Co., 175 Pa. St. 623, 52 Am. St. Rep. 860, 34 Atl, 974; First Nat. Bank v. Tyson, 133 Ala. 459, 91 Am. St. Rep. 46, 32 South. 144; Smith v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. Rep. 858, and authorities cited in the cross-reference note thereto.
BETTIS y. McNIDER.
(137 Ala. 588, 34 South. 813.) DOWER-Assignment of-Effect on Rents.-After dower is assigned the seizure of the widow relates back to the date of the death of her husband, and she is entitled to the rents of the land due before as well as after the assignment of dower. (p. 60.)
DOWER-Assignment of-Effect on Rents Transferred.--An administrator's right to the possession of the lands of his intestate is subordinate to the widow's right of dower, and he can never acquire any title as against her to the rents arising from that portion of the estate assigned as dower so as to convey a superior title thereto to another by a transfer to him of the tenant's obligation, and the widow, after assignment of dower, has a right to recover the rents received by such transferee, in an action for money had and received. (p. 61.)
W. Cunninghame, for the appellant.
591 TYSON, J. This is an action for money had and received, brought by plaintiff against defendant for the proceeds of the sale of five bales of cotton, received by the latter from a tenantafterthe plaintiff's dower in the land on which the cotton was grown had been assigned to her. Prior to the assignment of dower, the administrator rented the land, taking the tenant's obligation for the delivery of the cotton, which he transferred to the defendant. The chief important question presented is, Did the transfer of the tenant's obligation to defendant by the administrator prior to the assignment of dower operate to defeat the plaintiff's right to the rent? Prior to the assignment of dower, a widow has no such title to the land as will support an action at law against an administrator or heir for rents collected. Her
remedy in such case is in equity. And upon proper bill she may recover them of the administrator or heir from the date of the death of the husband to the date of the assignment: Watts v. Williams, 38 Ala. 680; Slater v. Meek, 35 Ala. 538; Perrine v. Perrine, 35 Ala. 644; Beavers v. Smith, 11 Ala. 32; Tillman v. Spann, 68 Ala. 102, 107. After assignment, the widow is invested with a life estate in the lands set apart to her: Code, sec. 1522. She immediately becomes seised for life of a freehold estate, and has the same absolute ownership and control of the lands assigned as though her title had accrued by deed or will. The assignment, however, is not a conveyance, but the dowress, by intendment of law, is in by her husband.
The only object to be accomplished by the assignment is to give the widow a right of entry and to define the boundary of her possession, the allotment conferring upon her no new right to the land. And after the dower is assigned, her seisure relates back to the date of the death of her husband, and the antecedent seisure of the heir, which took effect on the death of the husband, is considered as never having had an existence, and she is in contemplation of law the immediate successor in title of the husband : 10 Am. & Eng. Ency. of Law, 2d ed., p. 152.
In Boyd v. Hunter, 41 Ala. 705, upon bill filed by a widow, after dower assigned, against the administrators 592 of her hus. band's estate and the tenants to whom they had rented the land prior to the allotment of dower, but whose obligation to pay the rent matured after dower was assigned, a recovery was allowed for the rents of the land collected by the administrators prior to the assignment of dower, and also for the rent falling due after the assignment. From this statement it will readily be seen that one of the questions presented was, Which of the two, the dowress or administrators, had the better right to rents accruing after the dower had been assigned? As indicated above, the decision was in favor of the widow. The court, after affirming the right of the widow to the rents collected by the administrators, said, in part, on this point: "It is further objected that Riggs and Hunter (the tenants) are liable at law, if at all, for the rents accruing after allotment of dower. These rents could certainly have been recovered in an action at law, but as the jurisdiction of equity had attached, that court will complete justice between the parties by settling a mere matter of account. .... There would be more force in this objection if the assignment of dower per se evicted the tenant. But although as soon as the premises have been set out
and assigned to the wife, and the allotment confirmed by the court
, the freehold vests in her by virtue of her husband's seisure, and her estate is a continuation of his by appointment of law, the tenant is not required to be ousted. ... . Whether or not the tenants were at liberty to relinquish possession of any part of the dower interest on its assignment, there is no evidence that they did so. They were liable for the rent, which accrued during their possession.” The continuation of the possession by the tenant after the plaintiff's right of entry accrued, notwithstanding he went into possession under the administrator, converted him into a tenant of the plaintiff, and that without attornment: Mills v. Clayton, 73 Ala. 359. This principle in no wise conflicts with the familiar rule which prohibits the tenant from denying the title of the landlord, in any proceeding instituted by the latter, for the recovery of rent or possession, but comes within the exception that a tenant may always show that, since the inception of the lease, the title of the landlord 593 has been extinguished or has passed from him, either by his own act or by operation of law: Davis v. Williams, 130 Ala. 534, 89 Am. St. Rep. 55, 30 South. 488. The administrator's right to the possession of the lands of the intestate being subordinate to the plaintiff's right of dower, he could never acquire any title as against her to the rents arising from that portion assigned as dower. This being true, he was powerless to convey a superior title to the rent to another by a transfer of the tenant's obligation. Furthermore, the obligation or contract in this case shows on its face that it was given for rent of lands belonging to the estate of the plaintiff's husband. The defend. ant, as assignee of it, being chargeable with the knowledge of the uncertainty of the administrator's tenure, the right of the plaintiff to an allotment of dower, when assigned that she would he entitled to the possession of the land, and of the liability of the tenant to her if he remained in possession, instead of to the holder of his contract for rent, cannot invoke the benefit of the doctrine of bona fide purchaser for value. In short, whaterer title the defendant took by the transfer of the rent contract, he acquired subject to be defeated by the exercise of the right of the widow to dower, and this he was bound to know. He having no enforceable demand against the tenant, no title to the cotton which he received and converted, since it belonged to the plaintiff, he is a tort-feasor. But the plaintiff could waive the tort and bring and maintain this action against him for the proceeds of the cotton received by him from its sale. He has