DocketNumber: 13869.
Citation Numbers: 17 S.E.2d 184, 193 Ga. 42, 1941 Ga. LEXIS 586
Judges: Grice
Filed Date: 10/16/1941
Status: Precedential
Modified Date: 10/19/2024
1. It is not cause for reversal that the judge refused to strike, on demurrer to a petition seeking to enjoin a person from interfering with the works of the county authorities in widening and paving a road, an allegation that the Federal Government requested the co-operation of the county in *Page 43 bringing about the pavement of the same as a defense project at the expense of the Federal Government. The retention in the petition of the challenged portions thereof, even if erroneous as immaterial, was not prejudicial as applied to the case before us.
2. A vital issue being as to whether there had been an acceptance on the part of the county authorities of the whole or only a part of a street dedicated to the public, a plat book of the county, purporting to contain a description of the public roads of the county, and the evidence of the contract between the county and a person, in which it was stated that he should prepare such a book which should also show the State and county roads traversing the county, and said book containing a tracing of the road or street involved, was properly admitted in evidence over the objection that, although the documents offered came from the possession of the county where they were put on file, the papers do not show that the road in question was ever accepted, or that the plat itself was accepted.
3. Where the extent of the grant in a written dedication of land for use of the public as a street or road is defined in the writing, it is not necessary that the public authorities should work the entire width of the street or road, to make effectual the act of acceptance of the street so dedicated.
4. Prescription does not run against a county in regard to land held for the benefit of the public.
The petitioner alleged, that Ohio Avenue as a street and highway was accepted by the public; that Richmond County accepted it as one of its public roads, and the same has been worked by Richmond County as such, outside of the limits of the City of Augusta, for more than twenty-five years; that in 1929 the county employed a surveyor to make a plat of Richmond County and its roads and highways, and accepted his plat book in 1930; that it had an easement over said Ohio Avenue for street or highway purposes, the portion thereof where the defendant lives being just outside of the city limits of Augusta; that plaintiff furnished defendant's attorney with a blue print of the proposed improvements on said avenue, to be paved with asphalt to a width of 37 feet, with curbing and gutters on each side two feet, and a 4 1/2 ft. sidewalk on each side.
The defendant's general and special demurrers to the petition as amended were overruled. At the hearing the county contended as indicated above. The defendant contended that he had no objection to the county or the Federal Government preparing for and *Page 45 paving so much of Ohio Avenue in front of his house over which the county had an easement for public use, but that it had only an easement of thirty feet in width over the avenue, which thirty feet began ten feet east of his eastern line; and that the county and its agents and associates sought to pave not only thirty feet over which it had an easement, but the land lying west of the county's easement and between the county's easement and the defendant's property line for the entire length of his property line; that the county had no right, title, or easement to or over it; that his home for himself and family was on the lot abutting the ten-foot strip; that this ten-foot strip which was immediately in front of his home lot had been improved by him and his predecessors in title; that he and his predecessors had kept said ten-foot strip improved as a sidewalk; and that the county had never worked or claimed the ten-foot strip, and had never exercised any authority thereover.
The court overruled the special demurrer to the petition. The defendant moved for a judgment in his favor, on two grounds: (a) that the evidence showed that the plaintiff had a complete and adequate remedy at law: and (b) that the plaintiff had not proved any acceptance, either expressly or impliedly, of the attempted dedication by Dyer of the ten feet of what was designated as Ohio Avenue lying between the eastern property line of the defendant and the western line of the roadway that the county claimed to have accepted by implication, though not through its constituted authorities. This motion was overruled. The court granted an injunction as prayed. To the overruling of the special demurrer, the motion for judgment in the defendant's favor, and his objections to the introduction in evidence of the plat, and to the grant of injunction as prayed, the defendant excepted. 1. The plaintiff in error specially demurred to the county's petition as amended, the only ground of special demurrer argued in the brief relating to an allegation that recently the Federal government requested the co-operation of Richmond County in bringing about the pavement of the avenue, as a defense project, at the Federal Government's expense. His insistence is that such allegations are irrelevant, immaterial, improper, and prejudicial. Whether this position be well taken or not it is not *Page 46 necessary to decide, since for reasons hereinafter discussed the county had the right to pave the entire width of the avenue, regardless of its reasons or motive therefor, or whether done at the request of the general Government as a defense project, or not. In any view of the matter the result would be the same, with the objectionable portion of the pleading stricken or left in.
2. Error is assigned on the ruling admitting in evidence, over objection, so much of what is referred to as the plat book, and also as the county plat book, as the plaintiff in error claimed to be irrelevant, to wit, a plat showing Ohio Avenue as a Richmond County road fifty feet wide. Accompanying the plat made by George W. Summers were certain resolutions of the Board of Commissioners of Roads and Revenues of Richmond County, one of which recited that Summers had made a proposition to the commissioners that he would complete the county plat book in its entirety, and that said plat book, in addition to showing the tracts and parcels of land of Richmond County, "shall also show the state and county roads traversing Richmond County;" and an agreement to pay Summers on completion thereof a sum of money therefor; a resolution ordering that he be paid; an extract from the minutes containing a resolution that "the matter of giving residents of the Tuxedo Park, within the county, relief as to street conditions, and that it be done as soon as possible." The accompanying plat purported to be one of Tuxedo Park, showing the roads therein. Ohio Avenue was traced thereon, the bill of exceptions reciting that it showed Ohio Avenue as a Richmond County road fifty feet wide. The plat bears no date. The resolution of the county board agreeing to have it made is dated April 3, 1928. The date of the resolution ordering final payment to Summers "in full payment of services rendered" is December 22, 1930. The objection to it is evidence was as follows: Mr. Lanier: "My objection to it is that it only shows they employed Mr. Summers to make a survey of the roads of Richmond County, and that Mr. Summers made the plat, as indicated by his name, but the county commissioners nor any authorized authority of the county never accepted the plat at any time as the official plat of the roads of Richmond County, and I am objecting to it because it does not show that Ohio Avenue was accepted as a public road by reason of the plat having been accepted, or any of the plats made by Mr. Summers having been accepted. All the evidence shows *Page 47 that they were put of file and are now in the possession of the county, and because it is irrelevant and immaterial, and should not be admitted in evidence."
In view of the issue made by the pleadings, to wit, whether or not there had been an acceptance on the part of the authorities of Richmond County of Ohio Avenue, the evidence was properly admitted. The objection itself admits that the plat was on file and in the possession of the county authorities, made by one who contracted with them to execute a plat which should show the state and county roads, and it showed thereon this particular avenue as a Richmond County road fifty feet wide. Acceptance may be manifested by the recognition of the street in the official maps of a county, prepared under the authority or direction of its proper officials. Steele v. Sullivan,
3. It is not insisted that the judgment granting the injunction was erroneous because there was no such interference with the county's work as would justify the injunction if otherwise it was proper to grant it; but the contention is that the county has no right to use the ten-foot strip for road purposes. The evidence demanded a finding (and indeed no position to the contrary is taken by the plaintiff in error) that Dyer, the then owner, dedicated the whole of Ohio Avenue to public use, its width being fifty feet, and that the county for more than forty-one years regularly worked as a road a thirty-foot strip in the middle of the street; but there is no evidence that either of the ten-foot strips on the sides had been so worked, although it was shown that the public had constantly walked over these ten-foot strips as a route of travel. In the meantime Adams acquired from one claiming under Dyer a lot fronting Ohio Avenue, and he and his predecessors in title had improved that portion of the ten-foot strip immediately in front of his lot, had planted shrubbery and trees thereon, and had kept the strip improved as a sidewalk, claiming to have been in the open, peaceable, and notorious possession of the same since July 23, 1914.
In order to make a dedication complete on the part of the public as well as the owner, there must be an acceptance of the dedication by the public or the proper local authorities. 1 Elliot's Roads and *Page 48
Streets (4th ed.), § 165; Georgia Railroad Banking Co. v.Atlanta,
The controlling question here presented is whether the county, having worked, used, and kept up as a public road a strip thirty feet wide, running longitudinally along the center of the fifty-foot street that was dedicated, has thereby shown an acceptance of the whole width of the street which comprised the dedication. In principle, the instant case is in this respect governed by the ruling made in Norrell v. Augusta Railway Electric Co.,
4. It has more than once been held that prescription does not run against a municipality in regard to land held for the benefit of the public. Norrell v. Augusta Railway Electric Co., supra; Wade v. Cornelia,
Certain other subsidiary questions are presented, but they need not be expressly ruled upon, since the specific rulings already made are controlling. It was not erroneous to grant the injunction.
Judgment affirmed. All the Justices concur.
Swift v. Mayor of Lithonia , 101 Ga. 706 ( 1897 )
City of Albany v. Lippitt , 191 Ga. 756 ( 1941 )
Parsons v. Trustees of the Atlanta University , 44 Ga. 529 ( 1871 )
Norrell v. Augusta Railway & Electric Co. , 59 L.R.A. 101 ( 1902 )
Georgia Railroad & Banking Co. v. City of Atlanta , 118 Ga. 486 ( 1903 )
Donalson v. Georgia Power & Light Co. , 175 Ga. 462 ( 1932 )
Kelsoe v. Town of Oglethorpe , 120 Ga. 951 ( 1904 )
Penick v. County of Morgan , 131 Ga. 385 ( 1908 )
Wade v. Town of Cornelia , 136 Ga. 89 ( 1911 )
Ellis v. Mayor of Hazlehurst , 1912 Ga. LEXIS 250 ( 1912 )
Lastinger v. Town of Adel , 142 Ga. 321 ( 1914 )
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