Opinion
31710.
DECIDED SEPTEMBER 26, 1947.
Certiorari; from Fulton Superior Court — Judge Hendrix. May 26, 1947.
E. E. Moore Jr., S. S. Robinson, for plaintiff.
C. D. Stewart, James A. Miller, for defendant.
1. A public nuisance may be abated on the application of any citizen who is specially injured.
( a) The obstruction of a public alley is a public nuisance where it specially injures a citizen who is thereby deprived of egress and ingress to his property abutting on the alley.
( b) Where the evidence was uncontradicted that the alley had been used by the public in general for more than 20 years prior to its obstruction by the defendant, a finding was demanded that the public had acquired a prescriptive right to the free and unobstructed use of the alley and that it was a public alley.
(c) Prescription does not run against a municipality of this State as to land held for the benefit of the public, such as a public alley.
(d) Where the evidence demanded a finding that the alley was a public alley at and prior to the time of its obstruction by the defendant and that the plaintiff was specially injured by such obstruction and, there being no evidence sufficient to show an abandonment of the alley by nonuser, a finding in favor of the plaintiff was demanded, and the recorder erred in entering judgment in favor of the defendant and the judge erred in overruling the plaintiff's petition for certiorari.
DECIDED SEPTEMBER 26, 1947.
Lucius Henderson brought a proceeding against C. G. Ezzard in the Recorder's Court of the City of Atlanta, seeking to abate an alleged public nuisance. The petition alleged substantially that the plaintiff was a property owner, residing in the City of Atlanta; that the defendant wrongfully erected a fence across Lumpkin Street in the City of Atlanta; that this fence was built by the defendant six years previously and had since been maintained by him; that the plaintiff owned property adjoining said street and as a result of the obstruction, he was prevented from the full use of said street and from egress and ingress to his property, which injured and damaged him. The prayers of the petition were that the nuisance be abated and for process.
The defendant answered and denied substantially the allegations of the petition. For further plea and answer, the defendant alleged that the fence was in the rear of his property and was designated as the south property line in the warranty deed conveying the property known as 97 Little Street, S.E., to him in April 1939, and that he had been in public, continuous, exclusive, uninterrupted and peaceable possession of said property for more than 7 years, and that said fence had been at its present location for approximately 30 years. He denied that Lumpkin Street, or any other street, was obstructed by said fence.
The case proceeded to trial before the recorder, at which time the plaintiff presented certain demurrers to the defendant's answer and, during the trial, objected to the allowance of certain evidence; but, as shown by the answer of the magistrate, no ruling on the demurrers was made and the parties agreed at the trial that "technicalities and objections as to the niceties of the pleadings, the rules of evidence and the admission of documentary evidence would not be strictly insisted upon."
The plaintiff testified to the effect that he owned a certain lot situated on the south side of Lumpkin Street in the City of Atlanta; that the defendant built and maintained a fence across this street, which prevented him from entering or going out of his lot; that this street had been a public alley for about 30 years to his knowledge and that the public in general had used this alley at will without securing permission from anyone; that cars and trucks had always used this alley; that his deed recited that the land herein conveyed was situated on the south side of Lumpkin Street; by reference to a plat of the tax assessors of the City of Atlanta, the plaintiff showed the locations of Lumpkin Street, his property, and the fence; he testified that so far as he knew, the city had never repaired or improved the alleged street.
A Witness for the plaintiff testified in part that he knew of the alley in question; that it had existed for a period of 50 years; that it had been open to the public and the public had used it; that cars and trucks had been using it to remove trash; that there were houses located on Lumpkin Street area; that he did not know whether the city had kept the street in repair or made improvements to it or not.
The defendant testified in his own behalf that there had been a fence maintained where it was then located since 1918; that his property extended across what was contended was the alley or street; that said street had been of very little use and that the condition of it was such that cars and trucks could not use it; that the city had never kept, repaired or maintained said street; that two houses face South Avenue, with their backs facing what was contended to be Lumpkin Street; that the plaintiff was not "blocked in" by the fence, as the plaintiff could come out of the lot into South Avenue, which bounded the rear of plaintiff's property; that he had investigated the records and maps of the planning board of the City of Atlanta and did not find any street named Lumpkin; that he built the fence in dispute and had repaired it; that an alley had existed for a period of 20 years behind the property fronting on Little Street, which alley extended from Reed Street to the fence maintained by him; that this alley was known as Lumpkin Street; that Lumpkin Street was previously an alley. There was other evidence introduced, both oral and documentary.
The recorder entered a judgment in favor of the defendant. The plaintiff's petition for the writ or certiorari was sanctioned by the judge of the superior court and the writ ordered to issue. The answer of the trial magistrate was excepted to by both the plaintiff and the defendant, and the magistrate amended his answer, setting out the facts substantially as above set out. When the petition for certiorari came on for hearing in the superior court, the trial judge denied the petition and prayers for certiorari, and the plaintiff excepted.
"Any nuisance which tends to the immediate annoyance of the citizens in general, is manifestly injurious to the public health or safety, or tends greatly to corrupt the manners and morals of the people may be abated and suppressed." Code, § 72-201. And "A public nuisance may be abated on the application of any citizen specially injured." § 72-202. "If the nuisance complained of shall exist in a city having a population of 20,000 or more, the police court of such city, whether known as mayor's or recorder's court or otherwise designated, shall have jurisdiction to hear and determine the question of the existence of such nuisance, and, if found to exist, to order its abatement." § 72-401. The obstruction of a public road is such a nuisance that any citizen specially injured by the obstruction may proceed in his own name to have the same abated. Savannah, Florida c. Ry. Co. v. Gill, 118 Ga. 737 ( 45 S.E. 623). "A public alley is considered as a public street and is governed by the same rules applicable thereto." Scott v. Reynolds, 70 Ga. App. 545, 548 ( 29 S.E.2d 88). It was held in Hendricks v. Jackson, 143 Ga. 106 (1) ( 84 S.E. 440), that "an encroachment upon a public alley of a municipality is a public nuisance." If the street or alley in question in the present case was a public street or alley, the obstruction or encroachment upon it by the defendant would constitute a public nuisance subject to abatement on petition of the plaintiff, if special injury were shown to have occurred to the plaintiff by the obstruction.
It appeared from the evidence that the alley or street in dispute had existed for a period of 50 years and that it had been used by the public without securing permission from anyone. The plaintiff testified without objection that the street or alley had been a public alley for about 30 years to his knowledge, and that the defendant had obstructed it by erecting and maintaining a fence across it whereby the plaintiff was prevented from using the alley for egress and ingress to his property abutting on the alley. It was held in Savannah, Florida Western Ry. Co. v. Gill, supra (page 748): "In this State, actual adverse possession of lands by itself, for twenty years, will give good title by prescription against every one except the State, or persons laboring under the disabilities specified by the law. There was ample evidence to support a finding by the jury that the road in question had been openly, uninterruptedly and continuously used by the public as a public road for more than twenty years before the defendant company obstructed it; and this was sufficient to establish a prescriptive right in the public to its free and unobstructed use as a public highway." In the present case, the evidence demanded a finding that the alley or street had existed and been used by the public for 50 years and for more than 20 years prior to its obstruction by the defendant. There was no contention by the defendant in his pleadings or in his evidence of abandonment by nonuser of that portion of the alley between the fence and the plaintiff's property; but the only defense pleaded by the defendant was that the fence had been in its present location for more than 20 years, and since 1918, and that he had been in possession of the property up to this fence for more than 7 years. It is well-settled law in this State that prescription does not run against the State or against a political subdivision of the State, such as the City of Atlanta, in regard to land held for the benefit of the public. Adams v. Richmond County, 193 Ga. 42 (4) ( 17 S.E.2d 184).
Under the pleadings and the evidence, a finding was demanded that the alley in question was a public alley at and prior to its obstruction by the defendant and that the plaintiff was specially injured by such obstruction, which prevented him from ingress and egress to his property abutting on the alley, and, there being no evidence sufficient to show an abandonment of the alley, a finding in favor of the plaintiff was demanded as a matter of law and the recorder erred in entering a judgment in favor of the defendant and the judge erred in overruling the plaintiff's petition for certiorari.
Judgment reversed. Felton and Parker, JJ., concur.