Jacobs' Pharmacy Co. v. Luckie , 143 Ga. 457 ( 1915 )

Hill, J.

(After stating the foregoing facts.)

1. The first headnote requires no elaboration.

2. Did Jacobs’ Pharmacy Company have the legal right, and did its act of attempted revocation on January 14, .1915, amount to a revocation of the dedication previously proposed by it, although the board of commissioners of roads and revenues of Pulton County accepted the dedication on the day previous i;o the revocation ? It appears from the foregoing statement of facts that Jacobs’ Pharmacy Company, on September 19, 1914, agreed to donate a strip of land ten feet wide at the intersection of Peachtree road and Eoswell road for the- purpose of widening the Roswell road from fifty feet to seventy feet. “This donation is made subject to the other property owners along Roswell Road between the above-mentioned points giving the necessary land to widen said road as above set forth.” On January 13, 1915, the board of commissioners of Fulton county, after reciting that it had checked the donations of land tendered the county for the purpose of widening the road, adopted a resolution to the effect that all such donations and conveyances be accepted and dedicated to road purposes for the county and the citizens thereof. On January 14, 1915, Jacobs’ Pharmacy Company addressed a communication to the county commissioners, notifjdng them that the paper bearing date September 19, 1914, and signed by Jacobs’ Pharmacy Company, was procured without consideration and that under the circumstances the same was considered invalid. “We do hereby revoke said instrument, decline to donate said ground, or make a deed thereto; and notify you that no work must be attempted with reference to this property.” It will be seen that the dedication was a conditional one. This strip of land was donated on condition that the other property owners would likewise give the necessary land to widen the road. The dedication would not, therefore, become complete until all the conditions precedent had been complied with. It appears that at the time of the acceptance of the proposed dedication by the county all the other property owners had not dedicated the necessary land. Some owned their land and would not dedicate; others owned, but were' under legal disability and could not dedicate. Still others had dedicated, but the dedications contained conditions similar to the one contained in the dedication of the defendant. In some instances the land was donated on condition that the county would open and build roadways to the residences of the owners, and in others that the houses of the owners were to be moved back, or replaced, as the case might be. It will be observed that the county had no absolute dedication from the Jacobs’ Pharmacy Company. The donation was a conditional one, without consideration, and the public had not acted upon it. No work had been done by the county in widening the road. About four months had elapsed and no apparent effort was made by the county to secure a dedication from all the remaining landowners. Indeed it may be doubted whether the county could comply with some of the conditions contained in some of the dedications, such as building roadways and moving houses for private citizens. The county would have a reasonable time within which to comply with these conditions; but where the county could not comply — for instance, in securing a dedication from the guardian to property of a minor, — the question of reasonable time could cut no figure. Guardians have no right to bind the property of their wards by contract. 6 Michie’s Dig. Ga. R. 849 (2). And if they have no authority to bind by contract, surely they would have no right to donate it or give it away, on the theory that it might enhance the remaining property of the ward. In these circumstances, where the conditions accompanjdng the dedications had not been complied with by the county, and could not be complied with as to some of the proposed dedications, a dedicator who had donated on such conditions could formally withdraw and’revoke the conditional dedication previously made by him. 13 Cyc. 490; People v. Williams, 64 Cal. 498 (2 Pac. 393, 396). The owner of property proposing a dedication of land for public purposes on condition that the adjacent owners will make a like dedication1 has the right to withdraw the same on the ground of the refusal of some of the adjacent owners, and the disability of others, to dedicate. And the agreement of some of the others to dedicate, made subsequently to the withdrawal of the offer to dedicate, can have no effect on the status of the case. In view of what has been said, the court erred in granting the temporary injunction.

3. The cross-bill of exceptions alleges error on the part of the court in disallowing the amendment set out in the foregoing statement of facts, and in rejecting evidence offered by the plaintiffs in support of the amendment. We think that the amendment sets up a new and distinct cause of action, and that the court did not err in refusing to allow it, and in rejecting evidence offered in support of it.

Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.

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