Parsons v. Trustees of the Atlanta University , 44 Ga. 529 ( 1871 )

McCay, Judge.

1. There is no question, but that there may be a dedication of land to the public for public use, and that this dedication need not be by deed or writing: 6 Peters, 431, 440; 12 Ga. R., 239; 2 Greenleaf’s Ev., sec. 662.

In all such cases, however, there must be an acceptance of the dedication by the public in some form. It may be that the public do not need such a street or highway ; it may be an inconvenience and a burden instead of a benefit: The State vs. Trask. 6 Vermont R., sec. 355. Marquis of Stafford vs. Cazney, 7 B. & C., 257 ; 12 Ga. R., 239.

Especially is this true if the dedication is to be presumed from user, since the right in such ease turns upon the acceptance by the user. But even in the case of a dedication by words, deeds, or acts, it would seem that there must be an acceptance of the dedication, in some form, by the public. The public is bound to keep its highways in order; and, in this State, a town, or city, which fails to do this is liable to damages for injuries that may happen from a failure to do this. Surely it is not in the power of any person, who pleases to force upon the public a highway which it does not need, and which it may, in fact, not desire to have.

Mr. Greenleaf sums up the authorities on this subject in these words: “A public road may be established in two ways: 1st. By the public authorities. 2d. By immemorial usage, or dedication. In the latter case two things must be proven: 1st. The dedication. 2d. The acceptance of it by the public.” 2 Greenleaf’s Evidence, 662.

Clearly this acceptance may be by the public authorities. A donor may offer to the public a street or set of streets,, and the public authorities may, by their official act, accept, the donation. This seems to be common sense.

2. But how is this acceptance to be proven ? The Inferior Court, Ordinary or Mayor and Council which lays out or has jurisdiction of public roads, is a Court. Its decisions are the subject of certiorari, and it keeps a record of its proceedings.

It would be an unheard of doctrine to permit the proceedings of a Court having a record, to be proven by parol. More decidedly contrary to all principal would it be to allow the record to be contradicted by parol. See Co wen’s notes to Phil. Ev., 4 vol., 205. It is plain that Parsons made a written offer in reference to these streets, to the city. What that offer was, precisely, does not appear. The petition is not produced. It does not appear what has become of it. One witness testifies that he examined it and that it was an offer of one of several streets. The clerk says he thinks it was an offer of all. The petition or offer was referred to the street committee, and the minutes show they reported C£ favorably.” What was the action of the Council does not appear by the minutes.

We are very clear that it would be very dangerous to hold that this may be helped out by the memory of the clerk • especially as it does appear from the minutes that there was, within a few days thereafter, a petition upon much the same subject matter, which was also referred to the street committee, which accepted but one of these streets, and refused the others: See 6 Wendell R., 651. 4 Peters R., 349.

We recognize the position that it is not necessary to show an acceptance of a dedication by the records of the public authorities. On this branch of the subject we merely say, that in attempting to prove an express acceptance by the order of the public authorities, this can only be done by their minutes, and not by the recollection of any one as to what transpired in the Council.

We think there is enough in this bill and answers to have justified the Court in sending to a jury the question whether or not the owners of this land had, so far as they were concerned, dedicated this, as well as the other streets, to the 'public. True, it is disputed; but, in such a case, we would ¡sustain a Judge in holding the parties in statu quo until there was a trial. But, as we have said, the aet of the parties is not sufficient of itself. There must be an acceptance of the dedication by the public. Of this, we think there is absolutely no evidence. We have said that there is nothing in the minutes of the Council.

3. Is there any user by the public ? For a user, if continued for a reasonable time, would be an acceptance. The highest evidence of such user is the exercise of authority over the street by the authorities, the working of it, the treating of it as a street by the authorities. We are very much inclined to hold that this is necessary; since, on any other rule, the power of the public authorities over the subject of streets, lanes, alleys, etc., would be not in them, but in an undefined, loose body called the public, which might make a street in spite of the lawfully constituted authorities clothed by law with jurisdiction over the subject. But it is not necessary to put this case upon that ground. There is not only no evidence that this supposed street was ever worked, or any authority ever exercised or claimed over it by any portion of the city authorities, but it is clear that it was impassable, wholly unfit for a street. True, there is one affidavit to the effect that it was generally used as a street for a considerable time. But the other evidence is very conclusive against this, and the witness, doubtless, meant that he and others traveled over the Parsons land, having the line of this expected street for their general direction. Mr. Hayden and Mr. Rawson, both members of the street committee for the year, assert positively that it was not so used, that it was only by great expense that it could have been made fit for use, and that they both examined the matter to ascertain, at the time, its capability for a street. The whole doctrine of acceptance by user is based upon the law of estoppel. If one dedicate a street, and the public, by use of it for a considerable time, accept the dedication, the owner is estopped from denying his act. Now, the law of estoppel turns upon this principle, that one shall not be permitted to assert the contrary of a previous assertion of his, upon which others have acted, so as to change their status. Can the mere temporary use of a street by a few wood-haulers come within this principle? We lay out of view altogether any private rights the purchasers of lots on this street, as shown by the plat, may have had. That is a private matter, which, we suppose, they now have to set up. We see nothing in this record to show that the public ever accepted this street, in any way, either by a vote of the Council, or any act of that body, or its authorized agents, or any use of the street, as such, .by the general public. We do not say that the city may not lay out a street, in continuation of Mitchell street. Doubtless it has the power to do so, as it may lay out streets through any other property. That is wholly a different question. The right of eminent domain is very broad. What we mean is, that, so far as this record goes, we think there is no street there now; that whatever Parsons may have said or done, the public has never accepted his dedication, if he made one. What the public necessities may hereafter or now require, is not the question. If the city needs the street, the law points out a mode by which it is to be acquired.

4. It appears by the record that, at the time this bill was filed, there was already pending, on the equity side of the Court of Fulton county, a contest between the City Council and the defendant to this bill about this very matter. The city had undertaken to open this ground as a public street; not to appropriate it by virtue of its authority to take private property for public use, but to open as a street already belonging to the public. The defendants filed a bill, which was sanctioned, praying an injunction against the city. This bill is still pending. Now come the plaintiffs, citizens of Atlanta, in their character as citizens, and file this bill. We see no reason to authorize this interference with the City Council. That body represents the public. These parties, as citizens, are already before the Court in a controversy, not only covering the very controversy made now, but actually turning upon the same point. Had the city seen fit, it could pray an injunction in that case. None of the parties to this bill have any private interest. It is only as citizens of Atlanta any one appears. Some of them, it is true, live on Mitchell Street as long laid out, but they have no more rights in this proposed street than has every citizen of Atlanta. They may be a little closer, but they have no more rights than any other citizens. We are, therefore, of opinion that the pendency of the bill between the City Council and this defendant makes it improper for mere citizens, as such, to take the controversy out of the power of the City Council, and assume control of it. We do not say that citizens may not file a bill to enjoin a public nuisance. We think there are cases in which that may be done. We put our judgment on the ground that the city, having taken hold of the matter, and they being in litigation with the defendant, it is not for any person, who may so desire, to file a new bill. One case will settle the whole.

Overruling demurrer reversed.

Eefusal of injunction affirmed.