HOOLE and PAULLIN vs. THE ATTORNEY GENERAL, ex rel. &c., 22 Ala. 190

GOLDTHWAITE, J. The bill is hied by the Attorney General of the State, at the relation of John Hart and John M. Copeland, and charges that the plaintiff in error, Hoole, has obstructed a public street or road within the corporate limits of the town of Eulaula, by the erection of a fence; and the prayer is, for an injunction and abatement of the obstruction.

Any obstruction of a public road or highway wbieli renders its passage less commodious, is a nuisance, and whatever doubts may formerly have existed as to tbe powers of a court of chancery to entertain a bill to enjoin and abate a public nuisance, the jurisdiction of that court for this purpose is at the present day well settled; (Eden on Injunctions 259, 265; 2 Story Eq. §§ 923, 924; Attorney General v. Johnson, 2 Wilson Ch. R. 101, 102; Atty. Gen. v. Forbes, 2 Mylne & Craig 129; Spencer v. London & Birmingham, Railroad Co., 8 Simon R. 193; Sampson v. Smith, 8 Sim. R. 272; The State v.

Mayor and Aldermen of Mobile, 5 Port. 279;) and the fact that the town council of Eufaula have been invested by the legislature with the power to abate nuisances within the limits of the corporation, does not deprive chancery of its jurisdiction, without an express provision to that effect. King v. Baldwin, 17 John. R. 384; Gould v. Hayes, 19 Ala. 438, 450. But upon the merits of the case the decree cannot be sustained.

The jurisdiction of the court is based upon the charge, that the fence erected by the defendant, Hoole, was a public nuisance; and whether it was so or not, depends solely upon the fact of its erection upon a public street or road. It is not pretended that the street, which it is alleged was obstructed, was laid out or opened by the corporate authorities of the town of Eufaula, but it is charged that it became a public road by a dedication from William S. Paul-lin in 1841, he being at that time the owner of the fee.

If this allegation is sustained by the evidence, then the main tact of the case is fully established; the evidence in relation to the use of the road by the public being full and satisfactory. The dedication as, however, denied by Paullin in his answer; but we think that the testimony of the witnesses, Laird and Raleigh, would be sufficient upon that point, if it appeared that Paullin was the owner of the fee.

The bill, it is true, charges that he was so, but this is denied by the answer, and the evidence shows that the land upon which the fence was erected, was mortgaged by Paullin in 1836, to one Westcott; that the law day expired in 1837; that in November, 1841, a bill of foreclosure was filed by the mortgagee in the Chancery Court of Barbour county, a decree rendered in favor of the complainant in 1844, the land sold in 1845, and purchased by Lewis Paullin.

It is a self-evident proposition, that a dedication or gift of land for public uses can. only be made by the owner or proprietor; and, although the mortgagor is to be regarded as the owner of the estate mortgaged, as to all persons but the mortgagee and those claiming under him, (Doe v. McLosky, 1 Ala. 708,) yet it is equally well settled that he cannot impair the rights of the mortgagee, by passing any interest in the premises. Ellsthorp v. Dewing, 1 Chip. 141.

In the present case, the evidence shows that the land was sold by the agent of the purchaser at the sale under the foreclosure, Lewis Paullin, to one Posten, and by the latter to Hoole, who thus deduces his title directly from the mortgagee, and is entitled to all the rights in the land which the mortgagee himself had. 'But it is urged, on the part of the defendant in error, that the mortgagee in this case acquiesced in the use of the road; that Lewis Paullin, the purchaser under the mortgage sale, recognized it by the execution of a deed, in which the road, in question was described as the western boundary of the tract conveyed, and. that Posten, the purchaser from Lewis Paullin, also acquiesced in the dedication.

We think the position a clear one, that if Westeott assented to the dedication made by William Paullin, he would be bound by it, and those claiming under him could take no greater rights than he himself possessed; and the same principle is applicable both to Lewis Paullin and t© Posten; but the assent to the dedication is very different from the acquiescence in the use of the road by the public.

As a general rule, the mere fact of acquiescence on the part of the owner in the use and enjoyment of the way as a public road, would not create the presumption of dedication, until the period of twenty years, without some olear and unequivocal act on the part of the owner, amounting to an explicit manifestation of his intention to make a permanent gift of the road to the public. 3 Kent’s Com. 451.

The record, so far from disclosing any assent on the part of the mortgagee or those claiming under him, to the acts of William Paullin, which are said to amount to a dedication, does not even show that either of them knew of these acts.

There can be no assent without knowledge; and as the mere acquiescence for the period of time which the record shows it existed, is not sufficient, the only additional fact which is necessary to be considered upon this point, is, the act of Lewis Paullin in recognizing tbe road as the western boundary of the lands conveyed by him in the deed of 18th J amtary, 1850; and the question is, whether from this act wo are authorized to imply a dedication.

An implied dedication is where the appropriation to the public use is not expressly proved, but is inferred from the acts of the grantor, which are deemed incompatible with any other hypothesis. Matthews on Presumptive Evidence 317. Thus, the laying-out of a town plat, and selling lots with reference thereto, is properly regarded as a conclusive act of dedication to the public of the streets laid down upon such plat. But is the act referred to one of this character? The conveyance is, for a certain tract of land lying east of the road, running into the.town of Kufaula, from the lower bridge over Barbour creek.

Here is no gift or abandonment of the way to the public; no recognition of public rights in the road. Reference is made to it simply as the means of describing the land conveyed, and designating its geographical boundary. It may bo, that he desired the road to be kept open for his own use, or as a private way; but, be this as it may, we cannot regard -it as

an act so unequivocal and decisive in its character, so inconsistent with every other hypothesis, as clearly to manifest his intention of abandoning the road to the use of the public, and thus warrant us in depriving him of his rights as the proprietor of the land. It is also insisted on the part of the defendants in error, that the relators having made valuable improvements with reference to the road in question, they are to be regarded as purchasers for value; and that as the mortgage was recorded without the proof required by the statute, it would not, in the absence of other evidence, be considered as notice.

Conceding that the recording was insufficient notice, yet, -as the record shows that the service of the bill to foreclose was perfected in November, 1841, and there is no evidence that the purchase of the lots was made before that time, and the. improvements of the relators were not made until 1845 and 1850, they cannot claim the benefit of any equity in this aspect of the case, inasmuch as they must be considered as having notice of the mortgage from the 13th November, 1841, the time when it appears from the record that the service was perfected upon the mortgagor; (Bolling v. Carter & Womack, 9 Ala. 921; Doe v.

Magee, 8 Ala. 570;) while so far as the public are concerned, the working on the road, or the expenditure of money for opening it, after the dedication was made by William Paullin, is no evidence of a valuable consideration paid for the grant of the land for the public use.

The dedication of the land to the public, for the purpose of using it as a highway, must, in the absence of any testimony proving that value was paid for the grant, be regarded as voluntary and gratuitous, and therefore not within the statute, (Clay’s Digest 255 § 5,) in which the term “purchasers” by analogy to the decisions on the statute 27 Eliz. in relation to fraudulent conveyances, must be construed to mean purchaser’s for value. 2 Lomax’ Dig. 368 § 11; Twyne’s case, 3 Coke 80. The views we have taken are conclusive of the case.

Upon an indictment for a nuisance, the State could have claimed no right from the dedication of William Paullin, against any one claiming through his mortgagee, and the same facts which would have constituted a defence upon the trial on indictment, must prevail in the present suit. The decree of the Chancellor must be reversed, and a decree here rendered dismissing the bill at the cost of the relators.