City of La Fayette v. Walker County , 151 Ga. 786 ( 1921 )

Fish, C. J.

(After stating the foregoing facts.) The court properly overruled the general demurrer to the petition. Both, the dedication of land to' public use and the acceptance of such dedication may be implied.' Intention to dedicate may be inferred from acquiescence by the owner in the use of his land by the public, if the use be of such character as to clearly indicate that the public accepted the dedication to the public use. Healey v. Atlanta, 125 Ga. 736 (54 S. E. 749); Chapman v. Floyd, 68 Ga. 455; Brown v. Gunn, 75 Ga. 443. Under section 4171 of the Civil Code, if the owner of land by his acts dedicates it to public use, and it is so used for such length of time that the public accommodation might be materially affected by .the interruption of the enjoyment, he can not afterwards appropriate it to private purposes. And if he can not, it of course follows that his privies can not.

A public square or a common in a town or city is the subject of dedication, and a dedication of land' to a municipality to public use inures to the benefit of all who at the time are dr may after-wards become citizens of the corporation. Mayor etc. of Macon v. Franklin, 12 Ga. 239. The petition alleges, in effect, that the area of land in question was laid off prior to the year 1835, as a public square in a village, or settlement, which in that year wás incorporated as the Town of Chattooga, and which subsequently became the Town of La Fayette, and afterwards the. City of La Fayette;'that the square was used by the people of the community prior to,the formation of the municipal corporation, and by the people of the latter, and by the public generally for such public uses to which public squares and parks are usually devoted. This state of affairs continued until 1839, wdien, in accordance with a parol agreement between the proper officials of the Town' of La Fayette and those of the County of Walker, the county was permitted to build a court-house on the public square. The portion of the square not covered by the court-house .'has continuously since then been used by the general public as a public square, and the courthouse was used for the public business until it was burned in 1883; and a new court-house erected in that year was so used until 1917, when the county built a new one on another lot in the city, and abandoned the old building for public use, and let the same for private uses. The petition alleges, in effect, that the county never acquired any rights in. and to the public park by any writng from the city, .or from any person. These allegations are sufficient to authorize an implied dedication by the owner of the area of land in question to the village, town, and city to use as a public square, and an acceptance by them of such dedication; and as the county, according to the petition, obtained all of its rights to the public square by reason of the permission of the Town of La Fayette, the county is not in a position to gainsay such implied dedication and acceptance. Taking the allegations of the petition to be true, they are sufficient to authorize an injunction against the county, its commissioners, and the other defendants, restraining them from using the public square, including that portion of it upon which the old court-house is situated, and the court-house itself, for any purpose, as the county has abandoned the right it had to the property for public uses.

2. The special demurrer on the ground of misjoinder of parties plaintiff is not referred to in the brief of counsel for the plaintiffs in error, and must be considered as abandoned.

3. There is no merit in the demurrer on the ground of misjoinder of parties defendant. The contention for the county is that the suit is not only against the County of Walker, but against the named county commissioners as individuals. The action is not against them as individuals, but as commissioners representing the county. It is true that a suit against a county must be in the name of the county, and service may be perfected upon a majority of its commissioners. Here it is proper; for the commissioners, who, in their capacity as representatives of the county, are doing or threatening to do the acts sought to be enjoined. It is not a suit against the commissioners alone, but really designed as one against the county, as was the case in Arnett v. Commissioners, 75 Ga. 782, and Glaze v. Bogle, 105 Ga. 295 (31 S. E. 169), cited by counsel for the county.

4. In .view of what we have said in the first division of this opinion, the petition was not subject to the other special ground of demurrer fully set forth in the statement of facts.

There was evidence submitted by the plaintiffs, tending to establish their case substantially as laid; and the trial court erred in granting a nonsuit. It is true, as stated in the brief of counsel for the county and its codefendants, that the city failed to show “ that the principal highway or street f entered said square on its northern boundary and continued through the center of said square, leaving said square at its southern boundary near its center/” “and that the property designated as the public square was a part and parcel of the highways of the village;” and that the city also failed to prove that “ by and with the consent of the municipal authorities of the City of La Fayette, then the Town of La Fayette, the municipal authorities agreed with the properly constituted authorities of Walker County to permit Walker County to erect a courthouse building to be used for public purposes only on the public square of said corporation.” The lack of proof to sustain the allegations of the petition in respect to these matters, in view of the other averments therein, did not authorize the grant of a nonsuit. The main contention of the plaintiffs, as set forth in the petition, is that the area of land in the city designated as the “public square” is really a public square, and that the city is entitled to possess and control it for public use, and that the county by building a new court-house not on the square, which it now occupies, and thus ceasing to use the public square for public use, has abandoned and forfeited any right it ever had in the premises for such use. It is'not essential to the maintenance of the city’s contention for it to prove that the “ public square ” is traversed by highways, and that it is therefore a part of the city’s highways or streets. The main thing to be shown, in view of the petition as a whole, is that the city has a right as against the county to the use of the “ public square ” for public use, whether or not it be traversed by highways.

There was evidence to the effect that in 1837, before a courthouse was erected on the square in question, it was, in size and shape, the same as it, now exists, bounded on its four sides with public streets some thirty or forty feet wide; that these were then business streets of the town, which had some seven or eight hundred white inhabitants; that on these streets facing the square were many buildings, most of them used for businesses of various kinds; that these buildings then appeared to be some fifteen or twenty years old; that there were then locust trees seven or eight inches in’ diameter growing in the square; and that it was used as, a public square by the general public just as it has been continually used since that time, with the exception of that part of it upon ■which the court-houses have been built. This evidence tended to show that, years prior to incorporation of the village, there had been an implied dedication of the square by its owner to the village and town for public uses, and an acceptance of such dedication by the village, indicated by the laying out of its streets along the sides of the square, the erection of business houses on such streets fronting the square, and by user on the part of the public. 13 Cyc. 465, notes 55, 56, 57. It is not essential to constitute a valid dedication to the public that the right of use should be vested in a corporate body. The public, it has been said, is an ever-existing grantee capable of taking dedications for public uses, and its interests are a sufficient consideration to'support them. And it has been held, if there is a common-law dedication of land to public use prior to the existence of a municipal corporation, then, upon such corporation being organized and including such land within its limits, the use of the land in trust for the public at once vests in it. 13 Cyc. 439, n'tes 13, 14, and 15. There was evidence tending to show that the sqiiare had been continuously used by the inhabitants of the village and town and by the general public for such a length of time, prior to the erection of the first court-house by the county, that the public accommodation would have been materially and adversely affected had the enjoyment of such use been interrupted by the owner of the land appropriating it to other and inconsistent purposes. If the owner could not interfere with the right of the city and the general public to use the square for public purposes, then the owner could not convey the land to any one else, if the grantee had notice, who could deprive the city or the public of its rights under the dedication. As the county, when it erected the first court-house on the square, was in the’ circumstances bound to know of the rights of the city and the public in general to use the square for public purposes, the county then necessarily had to take from the city whatever rights the county had to use the square, since there was no other source from which it could procure the right to erect a court-house on the square. Thus it is apparent that it was not essential to the plaintiffs’ case to prove the allegation of the petition that the county by agreement with the city was permitted to use the square for a court-house site.

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

All the Justices concur.