Jolley v. City of Macon

Hill, J.

The City of Macon passed a resolution requiring the removal of obstructions from Fifth Avenue. In pursuance of the resolution and ordinances of the city, the city officials notified Wesley and Annie Jolley to remove the obstructions within a certain time, under specified penalties for failure to do so. Wesley and Annie Jolley brought suit to enjoin the City of Macon and the city officials from interference with their private property. From the pleadings and evidence it developed that there was a dispute between the plaintiffs and defendants as to whether the obstructions were on the private property of the plaintiffs or within the street. 'The plaintiffs and their predecessors in title had been in possession of lot number 4 of a subdivision for more than thirty years. At the time of the subdiision a plat thereof was made and recorded, and lots were sold with reference to the plat. The subdivision at the time of the survey in 1891 was located at the western terminus of Ellis Street outside of the city limits. The city limits have since been so extended as to include the subdivision, and the name of Ellis Street has been changed to Fifth Avenue. The plat of the subdivision showed lots numbers 1, 2, 3, and 4 to front on the space marked “5,” which was 40 feet in width, the north and south lines of which were respectively about 10 feet further north than the north and south lines of Ellis Street, so that the space on which the lots fronted was. in part a projection of Ellis Street. The city relied upon the plat of the subdivision and sale of lots with reference thereto, and use of the same by the public as a highway, to show a dedication of the space marked number 5 as a part of the street now known as Fifth Avenue. If the south line of Ellis Street or Fifth Avenue as it is now called should be projected west to the point where Ellis Street formerly ended, it would extend through lot number 4, so as to cut off and take into the street a portion of the plaintiffs’ lot as indicated by the plat. There was evidence tending to show that the obstructions which the city was seeking to have removed were located on a portion of the lot as indicated on the plat that would be cut off by the projection of the south line of Ellis Street across the property which comprised the subdivision as referred to above. The sale of the lots with reference to the plat which showed both the lot and the projected street would not authorize inclusion of any part of the lots in the street, and consequently there would be no dedication to the public as a street of any part of the lot arising from the sale of the lots with reference to the plat. It was erroneous to grant a nonsuit.

The court did not err in permitting a witness, Sam 'Worn-mack, to testify as follows: “No sir, he [Lawrence Miller] wanted to buy it, and he said he would buy it if we left an opening there to give a street to sell it. We had to leave that out for a street so we could sell it, and he wanted to buy it, and he wouldn’t buy it unless we left that open for a street. Q. You understood that it was a street, and he understood it was a street? A. Yes sir. Q. At the time he was buying from you ? A. Yes sir.” The objection to the testimony was that it was “hearsay and conclusions of the witness, on the ground that parol, prior, or contemporaneous understandings not incorporated in the written conveyance were not binding upon the plaintiffs and were inadmissible in evidence; that said conversation, being between two persons neither of whom owned the land, was inadmissible upon the theory that same was a declaration against his interest by a person since deceased, nor admissible as an admission against interest of persons in possession, both the witness and Lawrence Miller being strangers to the title, neither of them owning at the time of the alleged conversation or subsequently, or in possession of any of the disputed premises.”

Judgment reversed.

All the Justices concur.