Opinion
13869.
OCTOBER 16, 1941.
Injunction. Before Judge Franklin. Richmond superior court. June 12, 1941.
W. D. Lanier, for plaintiff in error.
Isaac S. Peebles Jr., contra.
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 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.
No. 13869. OCTOBER 16, 1941.
Richmond County filed its petition to enjoin A. G. Adams from interfering with the county and the Federal Government, or its agents, in grading and paving Ohio Avenue, in accordance with defense needs. In the petition as amended it is alleged, that Ohio Avenue is a fifty-foot street lying partly within the City of Augusta and partly south of the city limits, and is a registered road fifty feet wide; that it was dedicated for public use in January, 1899, by D. B. Dyer, then the owner of the land, which dedication was accepted by Richmond County; that at that time Dyer owned Tuxedo Park, in which the defendant's lot is now located, and he made a subdivision of a tract of land partly within the then village of Summerville, now the City of Augusta, which he had recorded in 1900, and on the plat were laid off streets or highways, among which was Ohio Avenue designated as fifty feet wide; that lots were sold and homes built in said subdivision; that in 1901 Dyer had recorded what he called a substitute plat in place of the plat previously recorded, which second plat shows Ohio Avenue, within and without the then limits of Summerville, now Augusta, as a street or highway fifty feet wide. Entered on this second plat is the following language: "This plat represents a subdivision in lots, streets, avenues, and alleys of the Julia N. Warren tract of land site in said State and County on the Wrightsboro Road near the village of Summerville, which was conveyed to D. B. Dyer by Manhattan Trust Company of New York, by deed dated December 21, 1898, and recorded in Book 5-N's, folio 93-4 and 5, in the office of the Clerk of the Superior Court of said State and County. This plat is hereby filed for record in said clerk's office, and the streets, avenues and alleys represented thereon are hereby dedicated to public use. But the said D. B. Dyer hereby reserves to himself, his heirs and assigns, the right to replat, at any time, any of the blocks of land shown on said plat in which no separate lots have been sold, and the title to all lands contained in streets, avenues, and alleys, which may be established by said replatting, shall revert to and be reinvested in said D. B. Dyer, his heirs and assigns; and the said D. B. Dyer reserves to himself, his heirs and assigns, the right to use all streets, avenues, and alleys which are now, or may be hereafter, opened on said lands, for the laying, erection, and operation of railroad-tracks, gas-pipes, light poles, wires, etc." Signed by D. B. Dyer.
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 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 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 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, 70 Ala. 589; City of New Orleans v. Carrollton Land Co., 131 La. 1092 ( 60 So. 695); City of Corsicana v. Anderson, 33 Tex. Civ. App. 596 ( 78 S.W. 261). Compare Penick v. County of Morgan, 131 Ga. 385 (6), 392 ( 62 S.E. 300).
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 Streets (4th ed.), § 165; Georgia Railroad Banking Co. v. Atlanta, 118 Ga. 486 (2) ( 45 S.E. 256). A frequent way of showing such acceptance by the public in the case of a road or street is to prove that the proper authorities assumed control over such road or street, as by having it worked, graded, or paved. Parsons v. Trustees, 44 Ga. 529, 539; Mayor c. of Americus v. Johnson, 2 Ga. App. 378 ( 58 S.E. 518), and cit.
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., 116 Ga. 313 ( 42 S.E. 466, 59 L.R.A. 101). There the dedication was made by deed. Here it was effected by another writing, but just as definite in its terms. There the strip, 70 feet in width, was conveyed by the owner to the county authorities for use as a public street. The county authorities accepted this deed and immediately proceeded to locate a road only 35 feet wide. Possession of the unused portion of the 70 ft. strip was retained by the person who had conveyed the whole to the county. About five years after such conveyance he conveyed this unused portion of the strip to Hight, and Hight conveyed to another person who remained in continuous possession for fifty-five years. The city limits of Augusta were so extended as to include this land, and the municipal authorities authorized the railroad to lay a spur-track across it from an adjoining street. The railroad took possession of the entire portion of the unused strip, and was sued in trespass by the remote grantee of the original dedicator. This court held that he could not recover. We quote from the opinion: "There is also no doubt that when the city limits of Augusta were extended so as to include this land, the road became a city street, and the city succeeded to the rights and jurisdiction of the county over it. We are also clear that by the acceptance of the deed the authorities accepted the entire tract conveyed by Thomas [the dedicator], and there can arise in this case no question as to an acceptance of only such part of the land as was actually used. The entire tract was accepted by the acceptance of the deed, and the failure to use all of it immediately was not such an act as could be construed as an abandonment of the unused portion." A similar ruling was made in Ellis v. Mayor c. of Hazlehurst, 138 Ga. 181 ( 75 S.E. 99), where the dedication was not made by deed direct to the public authorities, as was done in the Norrell case, supra. It was there held: "Where the extent of the grant is defined by the landowner himself in his statement making an express dedication to a municipality, it is not necessary that the public authorities should work the entire street within the confines of the grant, to make effectual the act of acceptance. Any improvements or repairs done on the street by the public authorities in recognition of the dedication of a defined strip of land for a street may be regarded as an acceptance of the dedication. 1 Elliott on Roads and Streets, §§ 167, 168. The distinction should be noted between acts of user when solely relied on to raise an implication of a dedication, and acts of user as evidencing an acceptance of an express dedication. In the former case a dedication will not be implied beyond the use ( Swift v. Lithonia, 101 Ga. 706, 29 S.E. 12), while in the latter the dedicator has definitely fixed the limits of the land dedicated to public use, and proof of any acts by the public authorities, done in recognition of the offer of dedication, will be sufficient to imply an acceptance of the dedication." To same effect see Lastinger v. Adel. 142 Ga. 321 ( 82 S.E. 884); Atlanta West Point R. Co. v. Atlanta, 156 Ga. 251, 255 ( 119 S.E. 712). Nothing contrary to what is here decided was determined in Kelsoe v. Oglethorpe, 120 Ga. 951 ( 48 S.E. 366, 102 Am. St. R. 138), where the question was whether the development and use of one end of the street would show an acceptance of the dedication of the end of the street which had never been opened up or developed or used, but which lay across another street. Nor is there anything decided in Donalson v. Georgia Power Light Co., 175 Ga. 462 ( 165 S.E. 440), by five Justices, that constrains us to take a view contrary to the one now asserted. As was pointed out in City of Albany v. Lippitt, 191 Ga. 756, 762 ( 13 S.E.2d 807), in the Donalson case, supra, the city attempted to give the company a right to place its transmission lines upon the land embraced in the offer to dedicate before acceptance by use of any portion of the right of way described in the dedication. In so far as the Donalson case may be deemed an authority for a ruling that by the use of a strip thirty feet wide, running longitudinally along the entire length of a street or road fifty feet in width, dedicated to public use, is not an acceptance of the whole width of the dedication, it will not be followed.
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, 136 Ga. 89 ( 70 S.E. 880); Mayor c. of Savannah v. Barnes, 148 Ga. 317, 320 ( 96 S.E. 625, 9 A.L.R. 419), and cit. Those holdings were not based on a statute, but were brought about by considerations which may be briefly summarized as follows: Prescription does not in any case run against the State; the city is an agent of the State, exercising within certain limits governmental functions and powers; a municipal corporation is entrusted with the care and control of its streets for the use and benefit of the public; and if prescription does not run against the State, it should not run against a city in respect to rights which are entrusted to the city for the benefit of the public generally and as to which it exercises governmental powers. The same line of reasoning applies with equal if not greater force to a county, one of the political subdivisions of the State. Accordingly it must be held that where a street or road has been dedicated to the public and accepted by the proper authorities of the county, no possession by a private individual of a part thereof can ripen into prescription. It follows that no character of possession, for no matter how long, of a portion of the dedicated strip on the part of Adams, which commenced after the time that the county manifested its acceptance of the dedication, could give him any right to interfere with the use thereof by the county for public purposes.
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.