Opinion
27379.
ARGUED SEPTEMBER 11, 1972.
DECIDED OCTOBER 5, 1972. REHEARING DENIED NOVEMBER 9, 1972.
Injunction. Sumter Superior Court. Before Judge Marshall.
Smith Hargrove, William E. Smith, for appellants.
Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Assistant Attorney General, Marshall R. Sims, Roland F. Watson, Deputy Assistant Attorneys General, Seay Sims, John Sims, for appellee.
1. Under the stipulated facts and undisputed evidence, the trial court did not err in granting the defendant's motion for summary judgment on its counterclaim.
2. In view of the repeal of Code § 55-110 it is unnecessary to determine if the injunction was in fact mandatory.
ARGUED SEPTEMBER 11, 1972 — DECIDED OCTOBER 5, 1972 — REHEARING DENIED NOVEMBER 9, 1972.
In 1934 Morgan J. Stevens conveyed an interest in certain described real estate in Sumter County, Georgia to the State Highway Board of Georgia, the property described in such conveyance being part of a larger tract of land. The State Highway Board constructed the road. In 1937 Stevens constructed a service station on land adjoining that described in the conveyance to the State Highway Board with a part of the service station being on the land described in the conveyance. In 1963 the claimants obtained from the heirs of Stevens described real estate, including that described in the conveyance from Stevens to the State Highway Board. This conveyance was "subject to all visible easements whether in writing or recorded."
In 1971 the State Highway Department of Georgia notified the claimants in the present litigation to remove the encroachments and they then filed the present complaint seeking to enjoin the State Highway Department from interfering with the structures (gasoline pumps, island, concrete apron and shed) claimed by the State Highway Department to constitute encroachments. The defendant State Highway Department filed defenses and a cross complaint in which it sought to enjoin the claimants from maintaining the encroachments. Upon the interlocutory hearing all material facts were stipulated, and affidavits and other evidence submitted. Thereafter, the trial court granted the defendant's motion for summary judgment on its counterclaim and it is from this judgment that the claimants appeal.
In view of the stipulated facts and undisputed evidence, in order for the claimants to recover, a finding must have been authorized that the State Highway Department had abandoned the area covered by the encroachment.
Whether the conveyance from Stevens to the State Highway Board was a deed granting fee simple title or was merely the grant of an easement is immaterial to a decision of the case sub judice. In either event the construction and maintenance of a roadway running the distance of the strip of land, but not extending the full width of the conveyed strip of land would constitute an acceptance of the whole tract and would prevent any adverse possession of the undeveloped area from ripening into prescriptive title, and the mere nonuse of the full width of the tract by the public would not constitute an abandonment of any portion thereof. See R. G. Foster Co. v. Fountain, 216 Ga. 113 ( 114 S.E.2d 863); State Hwy. Dept. v. Strickland, 214 Ga. 467 ( 105 S.E.2d 299). Accordingly, the judgment granting the defendant's motion for summary judgment was not error.
2. The sole remaining enumeration of error to be considered complains that the effect of the judgment was to grant a mandatory injunction which it is alleged is contrary to law. The judgment rendered would require the claimants to remove the encroachments.
Under the decisions exemplified by Davidson v. State Hwy. Dept., 213 Ga. 599 (1) ( 100 S.E.2d 439) and Waller v. State Hwy. Dept., 218 Ga. 605 ( 129 S.E.2d 772), the injunction granted in this case was not mandatory even if the repeal of Code § 55-110 (Ga. L. 1967, pp. 226, 244) had the effect of no longer prohibiting mandatory injunctions. See Cason v. Upson County Board of Health, 227 Ga. 451 ( 181 S.E.2d 487); Hill v. Small, 228 Ga. 31 ( 183 S.E.2d 752).
Judgment affirmed. All the Justices concur.