Swift v. Mayor of Lithonia , 101 Ga. 706 ( 1897 )

Simmons, C. J.

1. Where a dedication of his property to a public use is relied upon to defeat the claim of one holding ■the legal title to the property, the acts relied upon to establish such dedication must be such as clearly showed a purpose on the part of the owner to abandon his personal dominion over such property and to devote the same to a definite public use. “Intention to dedicate property to public use is esséntial to a dedication, but this may be proved by acts showing an assent that the property should be so used and enjoyed.” Collins v. Mayor etc. of Macon, 69 Ga. 642; Indianapolis v. Kingsbury, 101 Ind. 200; Manderschid v. Dubuque, 29 Iowa, 73; Tinges v. Mayor etc. of Baltimore, 51 Md. 600; Mayor etc. of Baltimore v. White, 62 Md. 362; Detroit v. D. & M. R. R. Co., 23 Mich. 173; Rozell v. Andrews, 103 New York, 150; Civil Code, §3591.

“An intent on the part of the owner to dedicate is absolutely essential; and unless such intention can be found in the facts and circumstances of the particular case, no dedication exists. . . . The intention may also be established by parol evidence of acts or declarations which show an assent on the part of the owner of the land that the land should be used for public purposes. To deprive the proprietor of his land, the intent to dedicate must clearly or satisfactorily appear. Such intent will be presumed against the owner where it appears that the easement in the street or property has been used and enjoyed by the public for a period corresponding with the statutory limitation of real actions. But where there is no other evidence against the owner to support the dedication but the mere fad of such user, so that the right claimed by the public is purely prescriptive, it is essential, to maintain it, that the user or enjoyment should be adverse, that it is with claim of right, and uninterrupted and exclusive for the requisite length of time. . . . But where the question is as to an intent on the part of the owner to dedicate, user by the public for a period less than that limiting real actions is important as evidence of such intention, and as one of the facts from which it may be inferred.” 2 Dillon’s Municipal Corporations (4th ed.), § 636 et seq.

In order to constitute a dedication of land to public uses, an intention on the part of the owner to abandon the use of the land to the public must be shown by proof of unequivocal and unambiguous words or acts of such owner; — the circumstances must be such as to show a clear assent to such dedication. Irwin v. Dixion, 9 Howard, 9, and the many cases there cited. The words or acts of the owner must clearly indicate an intention to dedicate the land to the use of the public, and there must be an acceptance by the public of such dedication. San Francisco v. Canavan, 42 Cal. 541; Shellhouse et al. v. The State, 110 Ind. 509. See also Mayor etc. of Macon v. Franklin, 12 Ga. 239, where the subject of dedication generally is discussed.

2. It does not appear from the record of this case what part of the land sued for constitutes a portion of a public road which is shown to have been used as such for a very long period of time, and what portion is claimed under the alleged dedication by the ancestor of the plaintiffs. As to this latter portion, we think that the evidence establishes the plaintiffs’ title, and that the defense relied upon, to the effect that this portion had been, by the ancestor of the plaintiffs, dedicated to the town for use as a public highway, was not sustained by the evidence. In so far as the verdict may have related to this land, it was contrary to law, and on motion should have been set aside. There was no proof of any express dedication by the ancestor of the plaintiffs nor of any words or acts of his from which could have been implied an intent on his part to dedicate his land to the use of the community. On the contrary, the evidence seems to tend positively the other way, and is insufficient to uphold a verdict for the defendant. Daniels v. Intendant etc. of Athens, 55 Ga. 609; Fisk v. Havana, 88 Ill. 208; Miller v. Ancoma, 30 W. Va. 606.

The evidence was sufficient to authorize the finding in favor of the defendant as to that part of the land sued for which may have constituted portions of the public road referred to above. It was sufficient to authorize a finding that this road had been in use by the public for thirty years or more, and the prescriptive title of the defendant was made out by the proof. The record does not disclose which portions of the land sued for were part of this road and which portions were claimed under the alleged dedication; and the case is, therefore, sent back for a new trial.

Judgment reversed.

All the Justices concurring.