Smith v. Lemon , 166 Ga. 93 ( 1928 )

Beck, P. J.

(After stating the foregoing facts.)

It is alleged in the petition that James L. Lemon permitted the public to use the tract of land in controversy as a public park on account of the shade-trees, and that it has been so used by the public for many years. And counsel for plaintiff in error in. their written argument insist that the language of the petition, the substance of which we have set forth in the statement of facts, shows that the property in question here had been dedicated by James L. Lemon to the public for park purposes, and that this dedication was accepted by the public. Even if under the language of section 4171 of the Code there had been a dedication by the plaintiffs’ testator in his lifetime of the lot of land in controversy for public uses, this would not prevent the plaintiffs from maintaining the suit to recover the land, if they show title in the estate of the testator. The fee to the land, though the public were permitted to use it, remained in James L. Lemon in his lifetime and in his estate after his death. In the case of Brown v. East Point, 148 Ga. 85 (95 S. E. 962), it was held: “Where there has been a dedication of the land to public uses only, the ultimate fee remains unaffected thereby. Cincinnati v. White, 6 Pet. 431 (8 L. ed. 452) ; Bayard v. Hargrove, 45 Ga. 342, 351. The effect of such dedication is not to deprive the owner of his title to the land; he retains the exclusive right in the land ‘for every purpose of user or profit not inconsistent with the public easement;’ but he is estopped, while the dedication continues, from asserting any right in the soil inconsistent with the public easement.” And the rule here stated is the general rule in most of the States. “The dedicator may prescribe the terms, restrictions, and limitations on which the land is given; and where the dedication does not operate to divest the owner of his title, he may use the land in any way not inconsistent with the enjoyment of the public rights therein, and is entitled to all the profits thereof not necessarily incident and appurtenant to the public user. In such case he has full dominion and control over the land, subject to the easement in the public, and may bring an action for trespass against any person who infringes on the ordinary proprietary rights of the owner of the soil, in a manner not inconsistent with the use of the easement, and, subject to the same restrictions, may also maintain ejectment for the land.” 8 E. C. L. 909, 910. While our attention has not been called to any case decided by this court ruling upon the precise question as to whether the dedicator may maintain ejectment to assert title to the land dedicated, it would seem to follow from what was ruled in Brown v. Bast, Point, supra, that he could; and the principle laid down in the excerpt which we have quoted from 8 E. C. L., as to the dedicator’s right to maintain ejectment for the land, is supported by numerous decisions by other courts of this country. See Pomeroy v. Mills, 3 Vt. 279 (23 Am. D. 207); Gardiner v. Tisdale, 2 Wis. 153 (60 Am. D. 407); Thomas v. Hunt, 134 Mo. 292 (32 L. R. A. 857, 35 S. W. 581). In view of what we have ruled above, the court did not err in overruling the demurrer to the petition as amended.

The rulings in headnotes 2 and 3 need not be elaborated.

Error is assigned upon the following portion of the court’s charge to the jury: “George L. Lemon and E. W. Lemon, who style themselves as executors of the will of James L. Lemon, deceased, bring into this court the petition which forms the basis of the action that you gentlemen are now trying. This petition is brought against Walter Smith, who is designated as the defendant therein, and in the petition the plaintiffs, in their representative capacity as such executors, contend that they, as executors of the estate of their decedent, own and have the title to certain premises that are in the petition and the amendment thereto described and set forth, and they allege that without their authority, or authority of their decedent, the defendant in this case has entered into the possession of certain of these premises, and is wrongfully occupying the possession thereof, and has committed certain acts of trespass to the injury and damage of the premises; and the petition is brought to have the title to the premises decreed and adjudged to be in the executors of the estate of James L. Lemon, and also for an injunction to prevent the defendant from further trespassing thereon, and further for compensation for damages which the plaintiffs contend the premises has had by reason of such wrongful possession of the defendant.” This charge substantially states those contentions of the plaintiffs to which it relates; and even if the court should have omitted the statement that plaintiffs were seeking in the petition compensation for damages, because there was no prayer for damages, this reference to the element of damages in the case is not ground for reversal of the judgment, inasmuch as the damages recovered were written off.

Another portion of the charge excepted to by plaintiff in error is that set forth in the 4th ground of the motion for new trial, as follows: “So, in this case, gentlemen, if you find that the title to this land was never conveyed out of James L. Lemon in his lifetime, or by his executors since his death, and then if you find that defendant has carried the burden of showing that an implied dedication of these premises was made to the public by James L. Lemon, and followed by his executors and acquiesced in by them, for public use, that is to say, for the purpose of permitting the public to use the premises for obtaining of water, or recreation or park, why the court instructs you that that within itself would not deprive the owner of the land and his estate of the fee-simple title to it; and if that still remains in the estate of the decedent, the defendant would have no right to take such possession of the premises and to exercise such control of the premises as would affect the fee-simple title thereto; and if he did, the owner thereof, by proper appeal to the court, can prevent his occupancy in that manner and his use in that way of the premises.” In view of what we have held in the first division of this opinion, the charge here excepted to was substantially correct.

The ruling in the 6th headnote need not be discussed.

The parts of the charge excepted to in the 6th and 7th grounds of the motion for new trial, which relate to the subject of damages recoverable, need not be further discussed, in view of the ruling made in the fourth division of this opinion.

Judgment affirmed.

All the Justices concur..