Town of Mableton v. Lowe , 142 Ga. 723 ( 1914 )

Beck, J.

(After stating the foregoing facts.) We are of the opinion that the court erred in granting the injunction. It appears from the undisputed evidence in the case, that the petitioner’s testator during his lifetime had agreed with one Headden, who was acting for Cobb County and the commissioners of roads and revenues, and with representatives of the Southern Bailway, for the closing of certain street crossings east and west of the depot in Mableton, known as Lowe street and Peek street crossings, and the construction of a new crossing and the erection of a bridge over the railroad right of way. Among the changes agreed upon was, that a certain public road or street which then ran directly in front of Lowe’s home and within a few feet of his doorsteps should be closed and the land occupied by the same revert to and become the property of Lowe, and in lieu thereof a new public road or street should be opened up to run across the right of way of the Southern Bail-way to where it joined the lands of Lowe, and thence for a distance of 160 feet over and through the lands of Lowe, which he gave for that purpose. It also appears that T. J. Lowe had in his lifetime definitely indicated the strip of land over which the proposed street was to be laid out; that before the filing of this petition for injunction the street had been practically opened over the identical strip indicated by him, requiring for its completion only the running of a scrape over it three or four times; and that wagons and teams had actually passed over it. The bridge over the railway had been completed, and the estate of T. J. Lowe had taken possession of a part, at least, of the street contiguous to his home which in pursuance of the agreement had been closed up and abandoned as a public highway and surrendered to the estate of T. J. Lowe in consideration of his giving the new street to the public. Subsequently to the aforementioned agreement between Lowe and the county authorities, the Town of Mableton was incorporated so as to take in these streets, and the town recognized the agreement and ratified the same on its part by opening up the proposed street as contemplated in the agreement made while T. J. Lowe was alive.

.To affirm the judgment granting the injunction would be to allow the petitioner, as the representative of the estate of T. J. Lowe, to take all of the advantages accruing to the estate from the agreement between him and the representatives of the county authorities, and to exempt the estate from any of the burdens imposed by the agreement. So far as appears from the pleadings and evidence in this ease, the dedication of the strip of land over which the new street was opened was complete at the time of filing this petition. In the light of all the evidence, we find no ground upon which the petitioner could base her claim for the equitable relief sought; and it was error to grant the injunction.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.