Wallace v. City of Atlanta , 228 Ga. 166 ( 1971 )

228 Ga. 166 (1971) 184 S.E.2d 576

WALLACE
v.
CITY OF ATLANTA et al.

26727.

Supreme Court of Georgia.

Submitted September 16, 1971. Decided October 7, 1971.

Charles L. Weltner, for appellant.

Henry L. Bowden, Robert S. Wiggins, George E. Glaze, for appellees.

ALMAND, Chief Justice.

Mrs. T. M. Wallace filed her complaint, in the nature of a bill of peace, against the Cities of Atlanta and College Park, to establish her claim and title to a strip of land forty feet wide and one hundred and eighty feet long located in the City of College Park.

After the defendants had filed their responses the case was tried upon the following agreed facts. In August 1945, Mrs. Wallace conveyed by deed to the City of College Park a right of way forty feet wide and one hundred and eighty feet long through her property for the purpose of laying out a public street. A public street was opened and maintained as such by the city. The deed contained no provision as to any reversionary interest in the grantor if the strip was abandoned for street purposes.

Subsequently, Mrs. Wallace conveyed to other parties all of her property abutting on said one hundred and eighty feet right of way, and all of said tract abutting on the one hundred and eighty feet right of way has been acquired and now is owned by the City of Atlanta. The City of College Park has agreed to quitclaim its interest in the right of way to the City of Atlanta and take the necessary steps to abandon the street. The City of Atlanta will use the one hundred and eighty foot strip for airport purposes.

The court, after a hearing, found that the plaintiff had no right, title or interest in the described one hundred and eighty feet of land and dismissed the complaint. The appeal is from this order.

We affirm. "If two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged in the greater." Code § 85-710.

It appears without dispute that all of the property of Mrs. Wallace which abutted on the one hundred and eighty foot right of way is now owned by the City of Atlanta and the right of way has or will be conveyed by the City of College Park to the City of Atlanta and thus the dominant and servient tenements will be owned by the same party. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210 (54 S.E. 1028, 7 LRA (NS) 1139).

Judgment affirmed. All the Justices concur.