The majority opinion properly holds that the intention of Gay is controlling as to whether or not he dedicated this alley to the public. Also, it correctly says the fact that the recorded map or plat showing that the alley did not extend from street to street, but had a dead-end, did not prevent its dedication to the public. But the error the opinion falls into, as I see it, is that it erroneously concludes that the building of the fence by Gay along the northern boundary of the alley shows that it was not his intention to dedicate it to the public, but exhibits an intention upon his part to exclude the negroes (whose property abuts the alley on the north) from using the alley.
One of the usual and customary ways to dedicate a street or an alley is to record a map of a subdivision depicting the lots, streets and alleys thereof and then to *Page 299 convey the lots with reference to the map. This is what Gay did in this instance. How could one express a clearer intention to dedicate an alley to the public? If Gay had not intended a public dedication of the alley, why record the map? And in conveying the lots why recite in the deeds that the property ran back to the alley (with no restriction on the use of the alley) if he did not intend to dedicate it to the public? When it is remembered that a private passway cannot be created by dedication, Potter v. Mullins, 267 Ky. 822, 103 S.W.2d 274, it is difficult for me to understand how the majority of the court arrived at the conclusion that Gay did not intend a public dedication of this alley. It long has been the law of this jurisdiction that when the owner of land subdivides it and records a map showing the lots, streets and alleys thereof, and in conveying the lots makes reference to the map, there is an immediate dedication of the streets and alleys not only to the purchaser of the lots, but to the public as well. City of Paducah v. Mallory, 225 Ky. 692, 9 S.W.2d 1015.
How it can be said with any degree of logic or reason that the building of the fence by Gay evidenced an intention on his part sufficient to overcome his recorded plat and subsequent deeds making reference thereto, clearly showing a public dedication of the alley, is more than my mind can grasp.