The Birmingham age-herald., 1911-05-17

here, who brought the suit MT. Terry was requested to do so by the Birming- ham Realty company, to whom the prop erty was deeded by the Lakeview Land company. That corporation secured the property when the Highland Avenue and Belt railroad was placed in the hands of a receiver.
 Terry Explains Litigation
 Mr. Terry yesterday gave this explan- ation of the litigation
 Alex London, deceased, requested me to bring the suit to clear up the title to Lakeview park. I told him would not be a party to any collusive proceed ings, but that if were retained I would overturn every stone to get the matter strengthened out and the property de- livered to the people. He said, Go ahead as we will not permit any slakening of l effort to settle the title one way or the | other forever l went into the question and, with Ed Smith, we brought suit | before Chancellor Carmichael. pr. Will | der a witness in the case residing at | that time in Washington, was visited by l MT. Smith in an effort to get every bit of evidence. He also visited a witness in | Mobile to learn of the distant facts. Chan | eellor Carmichael ruled that the property 1 was never relinquished by the owners l but that they were entitled to 1t be- | cause of having maintained fence about l the place and operated the park in con neetion with their railway line. The su- preme court upheld the ruling of Chan cellor Carmichael The city commits sioners cannot reopen the case unless some very grave and new facts are un- | earthed."
 President Henry L. Badham of the Country club said he did not care to enter into the controversy except to say; | If the city of Birmingham was the re- eipent of this club land by dedication, as president of the club, do not hesl- tate to say for the members thereof that we would be pleased to surrender It 10 the city whenever the question reaches crisis. 1 have no information on the mat ter and do not care to express any views upon the facts or the law in the case.
 Drennen's Views
 Former Mayor ". M. Drennen, in whose l administration the point was tested said : "The litigation over the Country clup | grounds was adversed by the supreme court. That tribunal held that Presi- dent Caldwell of the Elyton Land com many did not dedicate the park to the city. either express or implied. The court also held that although President Cald- well said the property was to be a park' he never said it was a public park. The company exercised 8 proprietary conlroi over the land, as l well remember hence' there could not be any implied oedlca- tion to the city An express dedication would only be valid when an authorized officer received the land for the city.
 I. c. Beatty, general manager or the Birmingham Realty company, whlch owns the land leased to the Country clup TOT golf links, said yesterday that the utle of his company was absolutely clear as u | the grounds. ~
 "Our company started a suit to deter m,ne that point" said MT. Beatty. The supreme court held that the Elyton Land 1 company did not dedicate that property | to the city. It was shown that map was drawn with flake" labeled upon IL. | It was also shown that in the sale or lots the presentation was made that that plot would be a park However, no relinquish- ment of right was ever shown on the part of the company to the city. We anticipate no serious effort to reopen litigation so hotly contested and adjudged by the supreme court as against this city"
 The case which went to the supreme court carried testimony by Judge A: U. | Lane. now a commissioner, to the effect that he requested President Caldwell or the Elyton Land company when he was mayor to dedicate the property to the city.
 This" said Judge Lane yesterday, twas when we realized how valuable that land would be as park. The attitude of President Caldwell was totally nega- tive to such a dedication"
 The supreme court decision declining to place the city in possession of that prop : erty follows:
 Text of Decision
 Tyson, justice: This bill was filed to en- join the respondent from obstructing the free use by the public of certain tract of land designated in the pleadngs as Lakeview park, upon the ground that it had been dedicated to the public by the Elyton Land company, the former owner. "Dedications are classed into express and implied. It Is admitted by the ap- pelant that there was no express dedi- l cation 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 animus dedi- candi on the part of the owner of prop erty and acceptance by the public or by some authorized agent, person or body acting for and in it's behalf. The burden of showing a dedication is, of course, upon the party alleging it. Being voluntary donation would not be presumed; but the dearest intention to do so must be shown. And if the use by the public is merely per missive as existing by the toleration of the owner and in subordination to, or recognition Of an implied license by him, the right will not mature into title by prescription, but 1t is revocable at pleas ure.
 Alabama Proprietary Rights
 And so, too, the use by the public must be of such character as to exclude the private rights of the owners. He must be shown to have abandoned his proprietary rights in the land; otherwise, the use of it by the public, not inconsis- . tent with those exercised by him, must verse.
 We need only to apply these principles 5 to the facts of this case as disclosed by the evidence, which to our minds not only r fails to establish by that measure of proof required, an intention on the part of the Elyton Land company to dedicate this land to public uses, but to the con- l trary affirmatively negatives any such in- tention. Such acts as shown to have been exercised by a certain class of the public
 were entirely compatible with the rights U of the company owner. The original ! map or plat of the lands of the company showing a space on which this particular plat of land is situated. which was after ward converted by 1t into a park as con
 troversy, has nothing in it tending fl the remotest degree togindicate the inten- tion to dedicate it to the public as g park. Some stress is laid in argument upon certain representations claimed tc