Opinion
14261.
SEPTEMBER 22, 1942.
Petition for injunction. Before Judge Wyatt. Carroll superior court. May 30, 1942.
J. L. Smith, for plaintiff. Boykin Boykin, for defendants.
1. If a negative affirmation is an essential element of the case, it must be pleaded and proved. If not essential but pleaded by plaintiff, the defendant's answer denying the allegations of the petition does not constitute a special plea; and where the petition alleges that described land is the property of the plaintiff, and is not a public highway, has not been legally laid out by the county as a right of way or roadway, and does not belong to the county, and the answer denies the allegations of the petition and asserts that the land is a public highway, it is not error, after having charged the jury that the burden of proving his case is upon the plaintiff, for the court to fail to charge that if the plaintiff proves that he has title to the land, the burden then shifts to defendant to prove by a preponderance of the evidence that the land is a public highway.
2. The two essentials for the dedication of land for public use are an intention by the owner to dedicate and an acceptance by the public authority of the land for the public use for which it is offered. Such intention and acceptance need not be express, but may be implied from conduct. Maintenance and use by the public as a highway, with knowledge of and without objection from the owner, for a period sufficient in length that the public use and enjoyment and private rights would be materially injured by interruption, is sufficient to show dedication. Where the evidence shows that a particular point obstructed by the plaintiff has been maintained and used by the public highway for more than twenty years, the evidence authorizes the jury to render a verdict in favor of the defendant and against the owner who seeks to enjoin the county from removing an obstruction which he has placed therein.
No. 14261. SEPTEMBER 22, 1942.
The petition of Cleve Hyde against Hamp Chappell, commissioner of roads and revenues of Carroll County, alleges, that petitioner is the owner and in possession of a certain tract of land in Carroll County, on which he unloaded some lumber in February; that the defendant through his agents removed the lumber, and by the use of road machinery scraped out two roads across this tract of land; that such action on the part of the defendant was illegal, and the roads were not laid out by said commissioner as provided by law; that no order was taken or notice given by the county authorities; that the roads thus scraped out by the defendant made four roads leading into the Bankhead Highway within a distance of one hundred yards; that on June 20, 1941, the plaintiff moved onto said tract of land a certain storehouse, for the purpose of operating a store and filling-station; that said building is located on land of petitioner, and is not on any right of way or roadway belonging to the county, or any right of way or roadway that has been legally laid out by the county; that on June 25, 1941, the plaintiff was given written notice by the defendant to remove the building; that the defendant is now preparing to remove the same from the premises, unless a court of equity intervenes to enjoin the defendant; and that the plowing up, scraping, and laying out of the two roads across the petitioner's land was an illegal trespass on his property. He prayed for injunction preventing the defendant from interfering with his property by removing the house.
The defendant's answer denied that the plaintiff was the owner of that part of Four Notch Public Road which the plaintiff obstructed by placing the old building thereon. The answer admitted that the defendant removed lumber from the Four Notch road which the plaintiff placed thereon in February, but denied that the plaintiff owns the land embraced in that public road, which, it was alleged, has been established and used continuously and uninterruptedly as a public highway and has been worked and maintained as such for more than twenty years. In answer to the allegation that the defendant scraped this road, the defendant admits that the county authorities have worked and maintained it as a public road. The answer admits that the plaintiff moved the Dr. Smith office, an old wood frame building, on and into the Four Notch road, running north and south at the intersection in Sand Hill, and within eight feet of the public well, but denies that the land belongs to the plaintiff, and alleges that it is a part of the public highway. It is further alleged, that the plaintiff knows that said land has been used continuously by the public as a public highway for more than thirty years; and that the plaintiff is undertaking to go forward with stabilizing the old building since the injunction was granted in this case before a hearing herein. It is prayed that the plaintiff be restrained from changing the status of the building until the matter is fully heard by the court; that the restraining order be dissolved; that the plaintiff be restrained from changing the status of the building until the case is finally tried; and that the action be dismissed.
Trial of the case before a jury resulted in a verdict in favor of the defendant. The plaintiff moved for a new trial on the ground that the verdict was not authorized by the evidence, and on special grounds as follows: (1) Assigning error on failure of the court to charge, without request, that if the jury should find that the plaintiff has title to the land in question, they should then look to the evidence to see if the defendant has established by a preponderance of the evidence that there is a public road across the land; that the burden would then be upon the defendant to show by a preponderance of the evidence that the road is a public road established by dedication or prescription, as contended. (2) Complaint of the following charge to the jury: "Where the owner consents for it to be used as a public highway, either expressed or implied, the element of time cuts no figure, but it immediately becomes a public highway; if it is used with the consent of both parties, it immediately becomes a public highway." (3) That the court erred in failing to charge, without request, that before a first-class road could be established by dedication or prescription, it must be shown that the road was thirty feet in width; that the same thirty feet would have to be used by the general public as originally laid out; and that if the space used was more than thirty feet, or if a different tract was used, other than that dedicated or claimed by prescription, it would not ripen and become a public road; that this same rule would apply to second or third-class roads, and if there was more space used by the general public or by the county authorities than that provided by law, no title by prescription or dedication would ripen.
The plaintiff introduced: (1) A deed from J. A. F. Broom, administrator of the estate of John W. Carroll, conveying to the plaintiff a parcel of land in the 5th district of Carroll County, being a part of lots 82 and 111, which the plaintiff claimed to embrace the land involved in this suit. (2) A former county commissioner testified that he did not have knowledge that the particular road here involved was maintained by the county during the period of approximately ten years he was commissioner. (3) Many witnesses testified that this and other roads had through the years shifted from place to place. (4) Other evidence was perhaps sufficient to have authorized a verdict in favor of the plaintiff.
Loyd Plews testified for the defendant, that he was employed by the plaintiff to make a survey of the land; that he made a diagram and plat of the land and gave it to the plaintiff; that he knew the location of the house which the plaintiff had put in the road; that in making the survey he stopped on the south side of the house and told the plaintiff that he had surveyed as far as the deed would carry him, and that if the plaintiff would furnish him some more deeds he would go further; that at the suggestion of the plaintiff he surveyed the northern part of the land and stopped about thirty feet from the starting point; that this was according to the deed; and that the house moved by the plaintiff and referred to in the pleadings is in the road. F. R. James testified for the defendant, that he was sixty-six years of age; that he knew John Carroll; and "I know where Mr. Hyde placed that Dr. Smith house in the road. That [is] a public road I have known more than thirty years." This witness testified that he worked that road in 1893, right where the house now sits, and that John Carroll recognized that as a public road, and everybody traveled it. B. F. Carroll, a son of John Carroll, testified for the defendant, that he knew where the plaintiff had obstructed the road by moving a house therein; that the house is sitting in what he knows is a public road; that his father permitted the use of the road by the public as far back as he could remember; that his father died in 1897, and his mother died in 1907; that he lived there all that time, and that the place where the plaintiff has placed the house was continuously used as a public road. P. M. B. Hogan testified for the defendant, that he had seen where the plaintiff had placed the old Dr. Smith house, and that it is located in a public road which witness worked fifty-six years ago. R. R. Knight testified for the defendant, that he was raised in the vicinity of the road; that he was fifty-eight years of age; that he had known the place obstructed by the plaintiff to be a public road for forty-five years or more; and that it had been worked and maintained by the public authorities during the past thirty years. Dr. O. W. Roberts testified, that he had been traveling the roads in that territory for forty years, and that he had traveled as a public road, for thirty-five years, the road where the plaintiff placed the Dr. Smith old house; and that it has been kept up by the public authorities. J. M. Wallace testified, that the plaintiff placed the old building in what he has known to be a public road for over forty years; and that the public authorities in 1929 and 1930 worked as a public road the land where the plaintiff placed the old house. C. C. Richards testified, that he had seen the wood building the plaintiff put in the road; that he did not know whether it had ever been laid out as a public road; that it was there the first time witness was there, in 1897; and that it has been used as a traveled highway for forty-five years. D. M. Hesterly testified, that he had known the identical place now obstructed by the house to be used by the public for forty or forty-five years; that it was worked and maintained by the public authorities during the lifetime of John W. Carroll; that it has been worked and maintained by the public authorities since the plaintiff owned it, until he put the building there; and that it was worked by the public authorities continuously until 1938 or 1939. R. H. Eady testified, that he had lived there about fifty years; and that the place where the plaintiff put the house has been a public road ever since witness can remember.
The plaintiff excepted to the overruling of his motion for a new trial.
1. The first special ground is predicated upon the theory that the defendant has filed an affirmative plea, and that when the plaintiff has made out a prima facie case the burden is shifted to the defendant to sustain that plea by a preponderance of the evidence. No complaint is made of the general charge upon the subject of the burden of proof, which is that the burden rests upon the plaintiff to prove his case as alleged, by a preponderance of the evidence. If a negation or negative affirmation is essential to the case, the burden of proof of such negative lies on the party so affirming it. Code, § 38-103; Conyers v. State, 50 Ga. 103 (15 Am. R. 686); Stanfield v. Beasley, 156 Ga. 823 (3) ( 120 S.E. 318); Brown v. Parks, 173 Ga. 228 (2) ( 160 S.E. 238). In Dunn v. Meyer, 193 Ga. 91 (2), 100 ( 17 S.E.2d 275), it was said: "The petition attempts to negative waiver. The plaintiff's evidence and evidence agreed to by him shows a waiver. Under these circumstances, as stated in the rule above quoted, `no special plea is requisite to make the evidence available for [the] defense.'" In the case at bar the plaintiff, in order to make out a claim to the land involved, need not have pleaded facts designed to negative the defendant's title, but in paragraph 5 of his petition he alleges that the building in question is located upon his own land, and "is not located on any right of way, roadway belonging to the county, or any right of way or roadway that has been legally laid out by said county." The answer denied this allegation of the petition, and alleged maintenance and use by the public for more than twenty years; but the answer did not on that account constitute a special plea. In the condition of the pleadings the burden was upon the plaintiff, as charged; and the failure to charge on the shifting of the burden was not error, as contended. Had the burden shifted to the defendant as contended, if the plaintiff was not satisfied with the general charge on the subject of the burden of proof, it was incumbent upon him to make timely written request to charge on the shifting of the burden, if he desired such charge. Hawkins v. Davie, 136 Ga. 550 ( 71 S.E. 873); Albany Warehouse Co. v. Hillman, 147 Ga. 490 ( 94 S.E. 569). This ground is without merit.
2. The other two special grounds involve substantially the same questions as are involved in the general grounds, and all of those grounds will be considered together. "If the owner of land dedicates land for use as a public road, the county authorities can, in their discretion, accept it for a public road and open a public road over it, without any petition being filed therefor, notice published, or even any order to that effect." Penick v. County of Morgan, 131 Ga. 385, 389 ( 62 S.E. 300). See Lee County v. Smithville, 154 Ga. 550 (2) ( 115 S.E. 107). It was held in Penick v. County of Morgan, supra, that evidence that the county authorities had worked the road was admissible for the purpose of showing that the public exercised dominion thereover. This ruling was not violated in Murphy v. Central of Georgia Railway Co., 135 Ga. 194 ( 69 S.E. 117), where it was held that evidence that convicts worked the road was inadmissible, on the ground that at that time convicts were leased to private parties, and that their work on a road was no indication that the public or county authorities were having the work done. There are two essentials for a valid dedication: (1) the owner must intend to dedicate; and (2) there must be an acceptance by the public authorities of the property for the public use for which it is dedicated. The intention to dedicate need not be shown by an express declaration, but may be inferred from acquiescence in the public use of the property. Acceptance likewise need not be express, but if the road be used and worked by the public for such a length of time that the public accommodation and private rights might be materially affected by the interruption of the enjoyment, the dedication is complete. Mayor c. of Sandersville v. Hurst, 111 Ga. 453 ( 36 S.E. 757); Georgia Railroad Banking Co. v. Atlanta, 118 Ga. 486 ( 45 S.E. 256); Kelsoe v. Oglethorpe, 120 Ga. 951 (2) ( 48 S.E. 366, 102 Am. St. R. 138); Southern Railway Co. v. Combs, 124 Ga. 1004 ( 53 S.E. 508). In Healey v. Atlanta, 125 Ga. 736 ( 54 S.E. 749), the evidence was held insufficient. That evidence, however, showed that the land was used by only a part of the public, and for a period of less than twenty years; and there was no evidence that the road was ever worked or maintained by the public. In the present case there is evidence that the owner, John Carroll, knew and was willing that the road be maintained and used by the public. There was an abundance of evidence that it had been so maintained and used for more than twenty years. This evidence was sufficient to authorize a finding that the land had been dedicated and accepted, or that title by prescription had been acquired by public maintenance and use for a period of more than twenty years. It is obvious that the public accommodation and private rights would be materially affected by interruption of the enjoyment of this road which has been so maintained and used. Possession, use, and upkeep by the public as a highway for twenty years ripens into prescriptive title. Shirley v. Morgan, 170 Ga. 324 (3) ( 152 S.E. 831). See Code, §§ 85-406, 85-407, 85-409, 85-410.
The charge complained of in special ground 2 expressly stated that to constitute a dedication there must be consent on the part of both the owner and the public, and that "If it is used with the consent of both parties, it immediately becomes a public highway." This language could have reference only to the owner and the public, since they constitute the two parties, and only two parties, to such a dedication. The charge was not subject to any of the criticism made.
Special ground 3 shows that the judge properly instructed the jury as to the provisions of law relating to the width of first, second, and third-class roads, and that he properly instructed them as to the provisions of law requiring maintenance and use for the required periods of time for such highways in order to acquire title by prescription. It is not required, in the absence of a request, to go further and charge that such general public use must not exceed the respective widths of thirty, twenty, and sixteen feet, and that the location of such roads must not be changed during the prescriptive period. The charge, having stated what the required width of the road must be, and that this and not some other road must be maintained and used for the required period, was sufficient, and the court did not err in failing to charge as the plaintiff contends should have been charged. In the absence of anything to the contrary, a public road will be presumed to be thirty feet in width. Browne v. Benson, 163 Ga. 707 (2) ( 137 S.E. 626). Here a large number of witnesses testified that the particular area covered by the old building as placed by plaintiff is now and has been for more than twenty years a public road. It is immaterial to a decision in the present case whether that road be sixteen, twenty, or thirty feet in width; for in either case it is the property of the public, and the plaintiff has no right to obstruct it by placing the old building therein. True, as plaintiff's counsel argue, there was evidence that roads in this locality had been shifted from location to location throughout the years; but many witnesses testified that this road had been located at this identical point for periods varying from twenty to forty-five years. The evidence supported the verdict, and the charge was not subject to any of the criticisms presented.
Judgment affirmed. All the Justices concur.