The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1924-03-30

I0r the Denefle or the public had the
right to the use of this strip as a par,
OF Nineteenth street, on each Of the
following theories, viz:
81. That the Elyton Land company
the common source Of title of the rail
roads, and of the city, had made a map
Of the city showing the strip open as q
street, and had sold lots in reference
to such map and had thereby dedi-
Gated the strip as a part of Nineteenth
street.
"2. That whether there was such a
map as claimed above or not, yet, that
the public had used this strip as part
of Nineteenth street for as much as
70 years, claiming such use as a mat
ter of right, and, therefore, had ac-
CURED the right to continue perpetu-
ally to so use the strip.
49, That whether there was such O
map or not, and whether or not the
user of the street had continued for az
much as 20 years, yet the kind and
character Of such user of the street
known to the Louisville and Nashville
Railroad company was such that there
being no objection from that company
to such user, it would be presumed that
such company had itself dedicated to, the
public the use of the strip in question
Battle Ground
Judge Grub held that the testimony
did not support a verdict either on the
second or third points.
THE first point was the real battle
ground. The city had three reputable
gentlemen as witnesses who would tes-
tify that at the beginning they saw in
the office Of the Elyton Land company,
the then owner Of the land before the
railroad reservation was decided to the
railroad, the original map of the city of
Birmingham, by which the Elyton
Land company was selling lots; that
this map showed Nineteenth street open
as public street along the strip in
question.
These witnesses testified that they
were not able to describe the whole
map 30 as to be able to reproduce it,
and Judge Grubb decided that they
could not testify to a part Of it unless
they could substantially reproduce the
whole, and thereupon refused to admit
in evidence that part of their testi-
mony in which they would have testi-
fled that the map id question showed
Nineteenth street open at this point.
City to Reappeal
Later the city appealed from this
decision Of Judge Grub to the United
States circuit court of appeals at New
Orleans, where the case was argued in
November, 1928, and decided by that
court on March Is, 1924, adversely to
the city, thus upholding the ruling Of
the very able trial judge Gas appellate
courts usually do when his decisions
are appealed FROM. This decision is
final in that case.
1.-THE city also contended that the
very contract made by the Elyton Land
company, on April 81, 1871, with s. &
N. Railroad company, predecessor of
Louisville and Nashville Railroad COM
pany, showed that each of. the city
streets were at that time open across
the railroad reservation which contract
the railroad company acquired from
the land company the land in question
and that all the streets, including
Nineteenth street, which ran up to the
railroad reservation also crossed it
as open streets. That contract con-
tanned this stipulation 1t is further
stipulated by all parties that the al
ternate streets crossing said above de-
scribed railroad and premises shall be
only kept open and unobstructed.'
'One decision against the city in eject
ment is not conclusive against the city,
but it is not likely that the original
map or copy thereof will ever be found,
and without it it is not likely that the
city could ever win. Therefore, prac-
tically, it would seem that the city
will have to treat the property as the
property of the railroads and would
have no other right than the acknowl-
edged right of condemnation of q right
Of way as If Nineteenth street had
never been laid off and dedicated across
the railroads. Very truly yours,
&c. r. HARSH"