Bayard v. Hargrove , 45 Ga. 342 ( 1872 )

McCay, Judge.

In the view we take of this case a great deal of the very learned and elaborate argument of counsel upon both sides is upon points which, though very material in one aspect of it, are yet unimportant in the determination, as we are of the opinion that the proprietors of this land, when they laid off the town, by lots, streets, lanes, etc., and sold the lots, parted with all their rights over the streets, except so far as they or their children are part of the public.

It is, without doubt, true that the original owner of the soil retains the fee in himself when the public, in the exercise of its right of eminent domain, seizes a right of way over his land. And if the road or way be abandoned by the public, he has the right again to its exclusive use. But even in such a case, it does not follow that if the public permit a street or road to be obstructed, not abandoning the way, by this misuser, the right is lost, so that the original owner may sue for the land.

It is also true that, whilst, as a general rule, the ownership of a fee in a highway or street is prima facie to be considered as in the owners of the abutting land, yet this is only a presumption; and if the original owner of the land have sold the abutting premises, reserving his right in the soil of the street, or if his deeds so define the laud sold as necessarily to exclude the fee in the street, then the fee remains in the original owner: Jackson ex dem. Yates vs. Hathaway, 15 John., 447; 6 Mass. R., 454; 10 Peters’ R., 25; 15 How. R., 155; 26 Ga. R., 674; 6 East. R., 154; Burrow’s R., 143. And this rule, as to the reversion of the fee on the abandonment by the public of the road or way, may also apply to the case of an ordinary highway or other easement dedicated to the public, where nobody is interested but the dedicator and the public: Angel on Highways.

But there is a clear distinction by the authorities, and in the nature of the case, between a mere right of way seized by the public or dedicated to the public and the case made by this record. Here is a contract. The owner of the land proposes to lay out a town. He makes up a map, with the lots, streets, lanes, etc., marked upon it, and he not only agrees to dedicate the streets to the public,but he sells the lots abutting upon the streets. The public accepts the streets, the lot-owners buy the lots under these representations, and the owner of the soil gets a consideration for his dedication in the increased price of his lots.

In this ease there are three parties to the transaction, the owner of the land, the public, and the purchasers of the lots. And the whole affair is a matter of contract, for a valuable consideration. Especially is it true that there are more parties at interest than the public and the dedicator. The purchasers of the lots acquired a contract right in the street. They acquired the right to use it themselves, and the right to have the street open to all others whom they may desire to use it. This title is gone from the owner, except with the consent of the public and the lot owners. If the public were to forfeit or abandon it, this would not affect the rights of the lot owners. The owner of the land has parted with his right ever to assert his right to the soil to the injury of the easement.

If the street be obstructed or neglected by the public, there is a ,method of compelling the public authorities to keep open and unobstructed the street that, by a contract, was accepted. And even if it be abandoned by the public, the private right of the lot owners to its use remains. In the case of Barclay vs. Hansel 1, 6 Peters’ Reports, 498, 504, the Court say: “Where the proprietor of a license disposes of his interest in it, he would seem to stand in a different relation to the right of soil in regard to streets and alleys of the same, from the individual of land over whose soil a public road passes, and who continues to hold the land on both sides of it.” And again: “If the ground in controversy in ejectment had been dedicated for a particular purpose, and the city authorities had appropriated it to another and entirely different purpose, this might afford ground for a Court of chancery to compel the specific execution of the trust by restraining the corporation or by causing the removal of the obstructions.” And this same doctrine is held in the case of Rowan’s executors vs. The Town of Portland: 8 B. Monroe R., 236; Williams vs. First Presbyterian Church, 1 Ohio State R., 478; Guigar vs. Filer, 8 Florida R., 332. And, as it seems to us, it is based on sound reason and equity. All that the owner of the soil sought by the dedication has been accomplished. It was not his purpose to favor the publie. His purpose was to benefit himself, and that benefit he has fully secured. The town has been established, his land has been enhanced in value, and the lot-owners have paid him for his sacrifice. As one of the public he has his right to enforce the trust, but neither he nor the public can affect the rights of the lot-owners, which they have bought and paid for.

In this ease there is no abandonment of the street by the public. The most that is claimed is that there is an obstruction in it. I do not think a case can be found where the original owner of the soil has been held to have the right to bring ejectment for the land on the ground that the public has permitted even a public road taken from him to be obstructed. Were he to recover the possession, then he would be obstructing the street.

When this street was laid off and the lots abutting upon it sold, and the lots upon the other streets sold, the owner of the tract parted with his right in the land to the public. The public authorities hold it for the uses proper for a street, to-wit: to pass over, and to use it as streets are usually used in towns and cities, to-wit, for drains, sewers, water-pipes, gas-pipes, etc., etc. And if the city directs it, the public or any private citizen injured may enforce the proper use.

As we have said, if the 'street be abandoned by the abandonment of the city, so that there is no use for streets and the whole becomes a farm, with no lot-owners to have rights, the street would, prima fade, revert to the owner of the rebutting land. Whether this last presumption is rebutted by the words of the deeds by which these lots passed out of the original dedicator, we do not say, as we have not the deeds before us. We should, however, be strongly inclined to hold that the title passed to the owners of the abutting lots, even though the deeds were by metes and bounds, which by implication excluded the streets.

In cases like this, of a sale of lots upon a street dedicated by the vendor of the lots, there is an element that does not exist in the cases referred to by the counsel for the defendant in error, to-wit: 15 Johnson’s R., 447; 10 Peters’ R., 25; 13 Howard’s R., 155. That element is, that this street was one of the inducements of the vendees to buy. The price of the land to the vendor was increased by his dedication of the street. Its precise width and the precise uses to'which it shall be put are material to the owner of the abutting lands, and not to the original proprietor. Even its existence is a matter of which the original owner need not care, after he has parted with the other lots upon it. And we should require a very strict and precise description of lines in the original deed, showing something more than a reservation by implication, before we would hold the natural and legal presumption that the present owners of the abutting lots are the owners of the soil of the street, so laid out and so dedicated, to be rebutted.

We have not thought it necessary to decide the other points made, because, in our judgment, the case turns upon the point we have discussed, to-wit: the right of the plaintiff, or, indeed, of anybody, to maintain ejectment for this land, under the circumstances as they appear in the record.

Judgment reversed.