Cobb County v. Crew , 267 Ga. 525 ( 1997 )

481 S.E.2d 806 (1997) 267 Ga. 525

COBB COUNTY
v.
CREW et al.

No. S96A1772.

Supreme Court of Georgia.

February 24, 1997.

H. Gray Skelton, Jr., Asst. County Atty., Marietta, for Cobb County.

Sarah L. Bargo, John K. Moore, Moore, Ingram, Johnson & Steele, L.L.C., Marietta, for Frank Ogden Crew, Jr., et al.

THOMPSON, Justice.

Frank Ogden Crew, Jr., as executor of the estate of Frank Ogden Crew, Sr., brought a petition to establish and quiet title to land, naming Cobb County, Edward G. Black, Stephen H. Chadbourn, and all the world, as respondents. By a deed of assent, the executor subsequently conveyed the estate's interest to himself, Shirley Faye Crew True, and Brenda Crew Prater, and these individuals were substituted as petitioners.

The land in question is situated in Cobb County and consists of three tracts, identified as Tracts 2, 3 and 4 on a 1985 survey prepared by John C. Gaskins. (See Appendix "A.") Following the appointment of a special master, Cobb County answered the petition, and asserted, inter alia, that it had acquired title to Tracts 3 and 4 by dedication.^[1] The special master concluded that petitioners were entitled to all of the tracts and judgment was entered accordingly. This appeal followed.

The land was once a part of a large tract owned by Mrs. A.E. Collins. In the early 1900's, the Georgia Railway and Electric Company ("GREC") condemned a right of way (Tract 4) across Collins' property. The right of way was 100 feet wide and 1775 feet long. It was used as a trolley line until 1948 when the tracks were removed.

Five years after the condemnation of the right of way, Collins' property was subdivided and conveyed to Black and Chadbourn. Collins' deed to Black and Chadbourn referred to a subdivision plat which had been put on record in 1908. The plat reflects an "electric car line" in the middle of a street designated as "Marietta Avenue." The total width of Marietta Avenue, including the electric car line, is shown to be 200 feet. However, the width of the electric car line's right of way is not shown. (See Appendix "B.")

The County paved and maintained a roadway which lies within a portion of the area shown on the plat as "Marietta Avenue." That roadway, which is 18.5 feet wide and situated on the east side of Tract 4, is known as Log Cabin Drive.

When the trolley stopped running in 1948, O.B. Logan, who then owned Tract 1, dug through the trolley line embankment and graded and installed a driveway across Tracts 3 and 4. The driveway connected Tract 1 to Log Cabin Drive. Six years later, Logan rented Tract 1 to Frank Crew, Sr.^[2]

Crew rented Tract 1 for the next nine years. In 1963, Logan sold Tract 1 to Mary Puckett, who continued to rent it to Crew. One year later, Puckett sold Tract 1 to Crew. Puckett's deed to Crew identified the easternmost boundary of Tract 1 as "Log Cabin Drive."

From the time he first occupied the premises in 1954, until he became ill in the early 1990's, Crew continuously used Tracts 3 and 4. Every year, he planted gardens which covered large portions of each tract. And, he maintained and paved the driveway which Logan had installed.

1. The County asserts the general grounds. The crux of the County's argument is that Collins dedicated one street—now known as Log Cabin Drive—to the County when the plat was recorded in 1908; that the County impliedly accepted the dedication of that street when it paved a portion of the width of Log Cabin Drive; and that, having accepted a portion of the width of that street, it accepted the entire width of that street. This argument would have merit if its premise were correct, i.e., if Collins had dedicated only one street to the County. See State Highway Department v. Strickland, 214 Ga. 467, 471, 105 S.E.2d 299 (1958) (where authorities use part of width of street, adverse possession of remainder cannot ripen into prescriptive title). However, the special master concluded that that was not the case and it cannot be said that his conclusion is clearly erroneous. See generally Alexander v. DeKalb County, 264 Ga. 362, 365(3), 444 S.E.2d 743 (1994) (trial court's findings are reviewed under clearly erroneous standard).

"The requirements for dedication to public use are (1) an intention of the owner to dedicate and (2) acceptance of the dedication by the public. Jergens v. Stanley, 247 Ga. 543, 277 S.E.2d 651 (1981)." Moreland v. Henson, 256 Ga. 685, 687, 353 S.E.2d 181 (1987). An owner may dedicate her land to public use by an express or implied dedication. Glass v. Carnes, 260 Ga. 627, 632(2), 398 S.E.2d 7 (1990). It is presumed that an owner has expressly dedicated streets to the public when she subdivides a tract of land and records a plat showing lots with designated streets. Hobbs v. Ware County, 247 Ga. 385(1), 276 S.E.2d 575 (1981); Young v. Sweetbriar, 222 Ga. 262, 265, 149 S.E.2d 474 (1966). Inasmuch as Collins subdivided the land and recorded the subdivision plat, we must presume that she intended to dedicate the streets that were designated on the plat. However, the question remains: Did Collins intend to dedicate one thoroughfare encompassing Tract 3, Tract 4, and Log Cabin Drive? Or did she intend to dedicate more than one street?

Generally, extrinsic evidence cannot be used to contradict an owner's express intent to dedicate land. Northpark Assoc. No. 2, Ltd. v. Homart Development Co., 262 Ga. 138, 141, 414 S.E.2d 214 (1992). However, when a plat is ambiguous, parol evidence, the surrounding circumstances, and the subsequent conduct of the public, can be used to show the boundaries and extent of a dedication. Id; 26 CJS 518, Dedication, § 49.

The subdivision plat purports to dedicate a street—"Marietta Avenue"—that is 200 feet wide. However, it shows the existence of an "electric car line" running down the middle of that street and it is silent on the dimensions of that right of way. Thus, the plat is ambiguous insofar as it fails to indicate the nature, boundaries and extent of "Marietta Avenue."

Looking beyond the plat, it would appear that Collins intended to dedicate two separate streets, one on either side of Tract 4. The plat was recorded five years after GREC condemned the trolley right of way. Thus, when Collins recorded the plat, she already knew that "Marietta Avenue" was to be separated by a 100 foot right of way. She could not have intended to dedicate an entire, undivided street when a 100 foot right of way went down the middle of it. After all, the trolley line precluded any use of Tract 4 as a public street. See City of Lubbock v. Merrill & Roberds, 278 S.W.2d 254, 256 (Tex.App. 1955) (railroad and drainage ditches effectively prevented use of strip of land as public road). See also 26 CJS 488, Dedication, § 44(c) (presumption that dedicated street will be used in the usual way).

The burden is on the party who relies on a dedication to prove the nature, boundaries and extent of the dedication. Lines v. State of Georgia, 245 Ga. 390, 392, 264 S.E.2d 891 (1980). Thus, the burden was on the County to prove that Collins intended to dedicate one, undivided right of way. The County failed to meet that burden. Even if the evidence did not demand a finding that Collins intended to dedicate more than one street, it did not demand a finding that Collins intended to dedicate only one street. See Addison v. Reece, 263 Ga. 631, 633, 436 S.E.2d 663 (1993).

2. Having determined that Collins intended to dedicate more than one street, i.e., Tract 3, in addition to Log Cabin Drive, we must next determine whether the County accepted Tract 3. See Hames v. City of Marietta, 212 Ga. 331(3), 92 S.E.2d 534 (1956) (dedication requires acceptance).

The acceptance of a dedicated street can be express or implied. Implied acceptance may be shown by proof that the authorities assumed control of the dedicated street. Young v. Sweetbriar, 222 Ga. 262, 265(1), 149 S.E.2d 474, supra; Kelsoe v. Mayor and Town Council of Oglethorpe, 120 Ga. 951, 954(2), 48 S.E. 366 (1904). Because the record is devoid of any evidence that the County exercised any control over Tract 3 for nearly 90 years, we must presume that the dedication of that tract was declined. See Hames v. City of Marietta, supra (failure to take control of dedicated land for 15 or 20 years leads to presumption that dedication was declined).

3. The County argues that notwithstanding the condemnation of Tract 4, Collins could have intended to dedicate whatever interest she had in that tract.^[3] We disagree. A street cannot be dedicated to the public if the public cannot use the land. See City of Lubbock v. Merrill & Roberds, 278 S.W.2d 254, supra. As we noted in division 1, Collins could not have intended to dedicate Tract 4 as a public road because the public was not able to use it.

4. The County failed to prove that Tracts 3 and 4 were dedicated to the public. It follows that Crew was able to establish title to those tracts by prescription. Compare State Highway Department v. Strickland, 214 Ga. 467, 471, 105 S.E.2d 299, supra.

Judgment affirmed.

All the Justices concur.

APPENDIX A

APPENDIX B

NOTES

[1] Title to Tract 2 is not in dispute. The County quitclaimed any interest it may have had in Tract 2 to Crew. Although the County now asserts it may be entitled to a sewer easement on Tract 2, and petitioners contend a sewer easement lies on Tract 4, petitioners stipulate that the County has a right to use the easement wherever it may lie.

[2] If the plat had been implemented precisely as it was drawn, Tract 1 would be on the corner of "Marietta Avenue" and "First Avenue" and lie within lots 21 and 22.

[3] When GREC condemned Tract 4, it acquired an easement, not fee simple title. Code 1895, § 4683 (now OCGA § 22-2-85). Compare Sadtler v. City of Atlanta, 236 Ga. 396, 223 S.E.2d 819 (1976) with City of Atlanta v. Fulton County, 210 Ga. 784, 785(3), 82 S.E.2d 850 (1954). GREC's interest reverted to Collins, her heirs or assigns, when Tract 4 was no longer used as a trolley line. Code 1895, § 4683 (now OCGA § 22-2-85).