Northpark Associates No. 2, Ltd. v. Homart Development Co. , 262 Ga. 138 ( 1992 )

Benham, Justice,

dissenting.

Because I am firmly convinced that under the applicable law and the facts of this case Northpark never acquired an easement to the Crestline Roads, I must dissent to the reversal of the trial court’s judgment.

1. In Clark v. McBride, 256 Ga. 308 (348 SE2d 634) (1986),³ this court held that where there is no evidence contrary to a developer’s intent to transfer fee-simple title to dedicated roadways, the recording of a plat of a subdivision accomplishes that end. In Westbrook v. Comer, 197 Ga. 433 (29 SE2d 574) (1944), it was established that lots conveyed after the owner has already conveyed title to an abutting roadway do not acquire an easement over that roadway. The evidence of this case shows that the developer of the subdivision in question, prior to conveying any lots in the subdivision, recorded a plat which dedicated to the county the roadways contained in the subdivision, without limitation except to reserve certain easements. Under the cases cited, the facts demand the conclusion that when Northpark’s predecessors in title acquired their lots, the developer had no interest in the roadways and could not, therefore, convey easements over those roadways. The majority makes much of the fact that the recorded plat had no specific notation of a conveyance of fee-simple title in the roadways, but that misses the point which is that the recorded plat did not limit the dedication to a mere easement. In fact, it is clear from the fact that the plat reserved easements for sewage and “sloping, cuts and fills,” that the dedication was of more than an easement. Even without the affidavits to which the majority objects, the intent of the developer in recording the plat and of the county in accepting the dedication is clear from the record created at the time of the recordation. This is not, therefore, a case where rights are being disrupted by a revisionist view of intent.

The authority relied upon by the majority does not establish the proposition for which it is cited. Walker v. Duncan, 236 Ga. 331 (223 SE2d 675) (1976), and Westbrook v. Comer, supra, are cited for the proposition that the sale of lots with reference to a recorded plat creates private easement rights in favor of the purchasers in any area set apart for their use. The emphasis added is crucial because of the context in which those cases were decided. Walker involved a park and a lake which were shown on a plat as part of the subdivision and there was no dedication of that part of the subdivision to the governing authority, only to the purchasers of lots in the subdivision. Westbrook is similarly distinguishable in that no rights in the alley in question there were dedicated or otherwise conveyed before the first purchaser bought an adjoining lot, but the fee in the alley had been sold when the subsequent purchasers of lots bought their properties. Reliance on Stanfield v. Brewton, 228 Ga. 92 (184 SE2d 352) (1971), and Owens Hardware Co. v. Walters, 210 Ga. 321 (80 SE2d 285) (1954), is likewise inappropriate: the streets in Stanfield were expressly dedicated to the owners of lots in the subdivision, and the governing authority in Owens Hardware did not accept the dedication. In the present case, there was no express dedication of the streets to lot owners and the governing authority accepted the dedication of fee-simple title, as is shown by the fact that the county never sought to tax the property underlying the streets.

Decided March 13, 1992 Reconsideration denied April 2, 1992. Peterson, Dillard, Young, Self & Asselin, G., Douglas Dillard, Dick Wilson, Jr., J. Stewart Teague, Jr., Thomas 0. Marshall, for appellant.

I must also take issue with the majority’s assertion that there is a presumption that the dedication of roads transfers only an easement. That statement does not appear in R. G. Foster &c. v. Fountain, 216 Ga. 113 (114 SE2d 863) (1960), which the majority cites for that proposition, and I do not believe such a statement can fairly be drawn from the holdings of that case. It may be, as the majority states without citation of precedent, that a governing authority can acquire fee-simple title only through condemnation or an express grant in a deed or other instrument, but that is only true insofar as a recorded plat is recognized as an instrument by which fee-simple title to roads may be transferred. Glass v. Carnes, 260 Ga. 627 (398 SE2d 7) (1990), does not stand for a contrary principle.

The majority’s opinion establishes a new and hyper-technical standard for judging the effect of dedication of streets in a subdivision by means of a recorded plat. That approach too severely limits the ability of trial courts to apply the “crucial test in determining whether a conveyance grants an easement in or conveys fee simple title to land [, which] is the intention of the parties.” Clark v. McBride, supra at 309.

2. Even if the majority were correct in its application of the law regarding interests in land, and I am convinced it is not, this case should not be reversed. It is patent from the record of this case that Northpark’s sole intent in purchasing the property and in opposing the abandonment of the Crestline Roads was to act as a “dog in the manger,” a spoiler. The record shows that Northpark did not engage in any of the zoning proceedings and did not care about the accelerating disrepair of the roads to which it now lays claim. It was not until Homart had expended considerable sums to build an alternative roadway serving both of Northpark’s lots that Northpark first made complaint about the loss of its asserted easement. When Northpark’s objections were rejected, it did not pursue any appeal. Under those circumstances, it would be an injustice to uphold Northpark’s lately asserted interest. Having slept on its asserted rights, rights which it sought to acquire only to prevent competition by another developer, Northpark should not be permitted to enlist the aid of equity for the purpose of oppression.

Being certain that Northpark has no rights in the Crestline Roads which should be enforced, I must dissent to the majority’s reversal of the trial court’s judgment.

Frankel, Hardwick, Tanenbaum & Fink, Samuel N. Frankel, John D. Steele, for appellee.

3 The majority overrules this case insofar as it permits the developer’s subjective intent to control the effect of a recorded plat, but that overruling does not affect the holding for which that case is cited herein.