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12/15/95 CLARA S. KIZER v. LAURA FINCH

December 15, 1995

CLARA S. KIZER
v.
LAURA FINCH, ET AL. *FN1



Appeal from Shelby Circuit Court. (CV-93-864). D. Al Crowson, TRIAL JUDGE.

Released for Publication April 26, 1996.

Jones, Retired Justice. Almon, Houston, Ingram, and Cook, JJ., concur. Hooper, C.j., concurs in the result. Shores, Kennedy, and Butts, JJ., Dissent.

The opinion of the court was delivered by: Jones

JONES, RETIRED JUSTICE.

Does occupancy by a subdivision lot owner of an unimproved but publicly dedicated strip of property, lying between the front line of the lot and the street curb, vest in the lot owner a property right superior to the right of the public to use the right-of-way, as contemplated by the public dedication? Under the facts of this case, we answer the question in the negative; thus, the summary judgment in favor of the lot owners is reversed and the cause is remanded.

The trial court entered the following "Order on the Defendant's Motion for Summary Judgment":

"This cause, ostensibly being one of first impression in this jurisdiction, coming on to be heard based on the pleadings of the respective parties, and the court having considered same, it is the opinion of the court that the following order be entered as to the defendant's motion for summary judgment. The . . . findings of fact are . . . as follows:

"1. That on or about October 23, 1991, the Planning Commission of the City of Helena approved the subdivision map of Dearing Downs 11th Addition.

"2. That on October 25, 1991, the subdivision map was filed in the office of the probate Judge of Shelby County, Alabama.

"3. That Olympia Circle and Seattle Slew Drive were statutorily dedicated by the filing of the subdivision map pursuant to § 35-2-50, Ala. Code 1975.

"4. That the defendants, Vining, Wiggonton, and Finch, acquired Lots 5, 45, and 4, respectively, in the spring of 1992.

"5. That a strip of land exists between the front lot line of each defendant's property and the curbing along the edges of Olympia Circle and Seattle Slew Drive that is designated as a right-of-way according to the subdivision map.

"6. That the said strip of land has been in the exclusive possession of and has been maintained and manicured by the said defendants as a continuation of their respective lawns.

"7. That the City of Helena has not exercised any use, possession, dominion, or control over the said strip of land lying between the front lot lines of the respective ...


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