
    Avondale Land Co. v. Avondale.
    
      Bill in Equity to have Land declared a Public Baric, and to enjoin Interference,therewith.
    
    1. Public park; what acts constitute dedication — A land company, owning many acres of land, for thepurpose of establishing a town had’ such land surveyed and laid off into alleys, streets, avenues and lots, with the exception of a certain tract; and had a map made showing the lines of the survey’, the alleys, streets, lots, &e., into which the land, with the exception of this tract, was divided, and this particular tract was designated on the map as a park. The land company, through its.authorized agents, sold many lots with-reference to the' map according to the lines thereon shown. In fixing tlie price of such lots, their location near the park was considered, and as inducing purchases special attention was called to the .reservation of the tract, as a public park, and many persons receiving thesé assurances purchased lots as marked on the map. The land company laid off a large part of the reservation into walks and drives, planted flowers and shrubbery, and otherwise improved and beautified it suitably for park purposes; and. refused to pay taxes on it upon the ground that it was a public park Held: such facts import an irrevocable dedication of the particular tract so reserved to the public for the purposes and uses of a public park.
    Appeal from the City Court of Birmingham, in Equity.
    Heard before the Hon. H. A. Sharpe.
    The bill in this case was filed by the town of Avon-dale, a municipal corporation, against the appellants, the Avondale Land Co. and J. J. Calmont; and prayed to have a certain tract of land described in the bill adjudged and declared to be a public park, and that the defendants be enjoined from converting said park from a public to a private use, and from interfering with the public in the use thereof. The facts of the case are sufficiently stated in the opinion.
    Upon the submission of the cause, on the pleadings and proof, the chancellor granted the relief prayed for. The respondents appeal from this decree, and assign the rendition thereof as error.
    Arnold & Evans and R. H. Pearson, for appellant.
    
      1. The court erred in overruling the motion to dismiss for want of equity and in not sustaining said motion. Appellants being in exclusive possession and control of the land and claiming adversely, and there being no allegation or proof of irreparable injury or multiplicity of suits pending, appellee had a complete. and adequate remedy of law and it was error for equity to interpose or assume jurisdiction and render a final decree in favor of ■ appellee. — Irvin v. Dixon, 9 How. U. S. 10, 29-50; Carpenter v. R. L. Co., 24 N. Y. 655; Wagner v. R. R. Co. 25' lb. 526, 534'; Perrin v. R. R. Co., 36 16. 120, 127; R. R. Co. v. R. R. Co., 86 16. 107, 121-127; 2:Dill.Mun. Corp., § 662.; Washb. on Easements, p. 747 ; 6 A. & E. Ency. of Law, 692-3 ; 16 16. 941; 3 Pom. Eq. Jur. §§ 1346,1351; Young-blood v. Youngblood, 54 Ala..486 ; Raihuay Co. v. McKenzie, 85 16. 546.
    2. The dedication of land for a public park or square is established in the same manner as in the case of highways and streets. — 2 Dill. Mun. Corp. (4 ed.) § 444; 17 A. & E. Ency. of Law, 407-8; 5 lb. 416 ; State v. Trask, 27 Am. Dec. 561. The dedication of land to public use being a voluntary act, donation will not be presumed. Nemo presumitvr donare. The burden of proof is on the party who alleges dedication, and if the proof is doubtful or ambigu'ous, it will be construed against him. — 5SA. & E. Ency. of Law, 400, 401; 17 lb. 407 ; State v. Trask, 27 Am. Dec. 562; Lewis v. Portland, 42 Am. St. R. 772, 778 ; Peoria v. Johnston, 56 111. 45, 50; Steele v. Sullivan, 70 Ala. 589, 594.
    3. The animus dedicandi on the part of the land owner, clearly indicated by unequivocable acts or conduct, is absolutely essential to constitute dedication of land to public use and courts will not establish a dedication of land to public use and deprive the owner of his property, unless such intention unequivocably appears by clear and satisfactory proof — 2 Dill.Mun.Corp. (4 ed.) , § 636 and notes; Washb. on Easements (4 ed.) p. 209 ; 2 Waits Act. & Defenses 708 ; Statev. Trash, 27 Amer. Dec. 564, 562; Lewis v. Portland, 41 Am. St. R. 772; Cage & Co. v. R. R. Co., 84 Ala. 224. Proof of the acceptance of the land by the municipal authorities of Avondale was necessary to complete the dedication and to entitle appellee to recover. — Gage & Co. v. R. R. Co., 
      84 Ala. 224 ; Steele v. Sullivan, 70 lb. 589 ; Reedv. Mayor, 92 16. 339, 346; State v. Trask,27 Am. Dec. 5 64,666.
    4. The enjoyment of the use of the land with the consent of the owner or consistently with the rights and interests of the owner, has ho tendency to prove dedication or establish adverse rights. A license by a business man to enter his premises, extended to the public to attract custom and as auxiliary to the promotion of his business-cannot be construed to be a dedication, however long-considered. — Gage & Go. v. R. R. Go., 84 Ala. 224, 226; Smith v. Inge, 80 76. 283, 287 ; 5 A. & E. Ency. of Law, 409; Washb. on Easements, 237-8. The maintenance by the land owner of gates, fences or other obstructions or restriction to the public use of the land, is strong evidence to rebut and disprove the intent to dedicate.
    5. The mere surveying or laying -off of lands into-lots, squares and streets and making a map thereof does not amount to dedication. There must be a sale with reference to the survey or map. — Reed v. Mayor, 92 Ala. 339, 346; 5 A. '& E. Ency. of Law, 405; 2 Dill. Mun.Corp, § 640. The intention to dedicate may be shown by a map or plat made or used by the owner in selling lots marked thereon, as well as by words or deeus ; but if the map or the proof of its existence or use by the owner is uncertain or doubtful, then the same principles apply.
    Unless a map or plat relied on to prove the dedication of land for a public square or public grounds, has the words “Public Square” or “Public Grounds” or, their equivalent, plainly marked thereon, it is not sufficient to show the intent to dedicate and parol evidence is admissible to show the intention of ' the owner. — 2 Dill. Mhn. Corp., § 636, note on p. 753, § 648 and note; 17 A. & E Ency. of Law, 407-9 ; 516. 406 ; City of Pella v. Scholte, 95 Am. Dec. 729 ; Scott v. Des. Moines, 64 Iowa 444; Heirs of David v. City, 79 Am. Dec. 586, 590 and note.
    W. G. Ward, contra.
    
    When the owner of land maps, plats and surveys it into lots, blocks and streets with a view to establishing a town, as in this case, and sells lots with reference to t e map, designating the parcels sold with reference to the survey, there is an irrevocable dedication of the streets to the public, whether the town at the time was incorporated or not. — Ham v. Common 
      
      Council, 100 Ala. 199, 14 So. Rep. 9 ; Webb v. Dcmopolis, 95 Ala. 116 ; Reed v. City of Birmingham, 92 Ala. 339.
    2. “The word ‘Park’ written upon a block of land designated upon a map is as significant of a dedication and of the use to which the land is dedicated as is the word ‘street’ written upon such map.” — Archer v. Salinas City, 93 Cal. 56; Trustees of Watertown v. Gowen, 4 Paige 573, 27 Am. Dec. 80, and note on page 84; Rowan v. Portland, 8 B. Monroe 246 ; San Le Andró v. LeBreton, 72 Cal. 170 ; Dillon on Mun. Corp., §§ 640, 644; Cincinnati v. White, 6 Peter 431, 22 Am. Dec. 622.
    “And if there be public squares or plazas represented on the map, the same rule applies to them and a dedication thereof may be established in the same manner.” San LeAndro v. LeBreton, supra, and authorities cited; Dillon on Mun. Corp., (4th ed.), § 644, note 2, and authorities cited in the note, § 645.
    3. By its conduct and declarations, the Avondale Land Company is clearly estopped from depriving the public of the use of this park and converting it from a public to its own individual use. Granted that the name “Avondale Park” was never written on its office map, then as alleged and proven, this land was dedicated to public uses. The Land Company by its declarations, and the manner of holding it out, dedicated this park to public uses, and is estopped to deny it. — Forney v. Calhoun County, 84 Ala. 215, and authorities cited there; 5 Am. & Eng. Enc. of Law, p. 402; Morgan v. Railroad Company, 96 U. S. 716.
   McCLELLAN, J.

The question in this case is whether the Avondale Land Co., which originally owned the site of the present town of Avondale, dedicated a certain lot, parcel or tract of land situated on said site to the public as a park ; and this question is purely one of fact, there being really no disagreement of counsel as to the law applicable to it. The case was fully argued at the bar, and the evidence has since received careful consideration by the court, a consideration which has only served to deepen the impression made upon us at the argument into the conviction now to be announced, that the land in controversy was efficaciously dedicated by the Land Company to the inhabitants of the town of Avondale and the public generally as and for the uses and purposes of a public park. No extended discussion of the facts is deemed necessary or will be entered upon. We find the evidence overwhelming to the establishment of the following facts: 1. That the Avondale Land Co. purchased five or six hundred acres of land previously utilized only for the purposes of agriculture and husbandry, with a view to having it laid off into streets, avenues, alleys, parks and lots and .selling the lots and building up of a town on the land; that accordingly a survey of the tract was m'ade and thereby the lines of alleys, streets, avenues aiid lots were established all over the site, except certain forty acres, which was of a character especially adapted to the purposes of a park, and a great part of which was ill adapted for any other uses, that the lines of the streets next to this parcel as elsewhere on the tract were thus fixed and established, and that the whole tract was then platted by the company and a map was made showing all the lines of the survey, all the alleys, streets, avenues, blocks and lots into which the tract, except this forty acres, was divided for the purposes of sale and the use of the public when the town should' spring up, a.:d showing also this forty acre parcel thereon bounded by streets, but with no divisional lines upon it, no indication that any part of it was to be appropriated to alleys, streets, avenues, blocks or building lots ; but, instead and to the contrary, across this parcel on the map was written.or printed as a partofthe map the words “Avondale Park.” 2. That having made this survey and prepared this map, the Land Company proceeded to offer for sale all the lobs and blocks shown on the map, and .did sell great-numbers of lots for building purposes, and in fixing the prices at which lots were to be and were sold the existence of this forty acre parcel as a park was taken into account, and lots on streets surrounding it were held and sold at higher prices, for the reason, giyen by the company at the time, that they were more desirable because they overlooked the park, though, with this consideration eliminated, they were no more desirable than lots in other localities on the .survey. 3. That all these sales were made by the authorized agents of the Land Company from and by reference to this map showing the reservation of this parcel as a public park, and that officers and agents of the company, acting in the line and scope of their duty and authority to 'make sales of the lots shown by said map, frequently, by way of inducing purchases of said lots, specially called attention to this reservation shown by the map, and marked thereon “Avondale Park,” and assured persons to whom they were endeavoring to make sales that that land was reserved from sale and set apart and would be maintained as a park for the use of the people of the town and the general public; and many Of the persons receiving these assurances purchased lots as marked on the map. 4. That tire Land Company laid off a large part of this reservation into walks and drives, planted flowers and shrubbery in it, built a pavilion near a large spring therein, curbed up the spring, and otherwise beautified and improved the premises suitably to their use for park purposes, erected a fence around the tract with gates for pedestrians and vehicles near the spring, and over these gates for about two years, during which the greater number of sales of lots was made, there was a large sign bearing the words “Avondale. Park;” that meantime the purchasers of lots overlooking this park and thoroughout the plat builded houses upon them and lived, there until a-town grew up of some two thousand inhabitants, and was finally in 1888, the sales having commenced in the latter part of 1884 or in 1885 and continued, organized and incorporated as a municipality under the name of Avondale ; and that, all this time and down to a short time before bill filed the inhabitants of the town and the public generally used and enjoyed this land as a public park without • let or hindrance except that latterly the gates were closed and locked at night,, a practice or regulation not at all unusual in respect of public parks, and except that a part of the land was. used by the agent of the company in'charge of the park in raising vegetables and flowers, and the agent occupied an old house which was on the premise? when they were purchased by the company; and 5. That the company has declined and refused to pay municipal taxes on the land on the express ground that it'was a public park.

Upon all the authorities these facts (to which others of like tendency found in the evidence might be added) or even very much less than these facts, import an irrevocable dedication of this land to the public for the purposes and uses of a public park, and this whatever may have been the secret intention of the company or its officers, or its or their views as their ultimate rights in the premises, or the uses to which they have put a part of the land, or the control which they haye exercised over it.

It is said in argument that the bill is not maintainable because on the case made by its averments and the facts as they were construed by the city judge, and as we construe them, the complainant had an adequate remedy at law. Our own decisions substantially settle this point in favor of the complainant. — Demopolis v. Webb, 87 Ala. 659; Webb v. Demopolis, 95 Ala. 116; Harn v. Common Council, 100 Ala. 199, 14 So. Rep. 9.

Affirmed.  