Opinion
23479.
ARGUED MAY 10, 1966.
DECIDED JUNE 9, 1966.
Injunction. Clayton Superior Court. Before Judge Banke.
Smith, Spears Sears, Ted D. Spears, for appellant.
William H. Duckworth, Jr., Grant, Spears Duckworth, for appellee.
1. The petition alleging that the owner of a tract of land dedicated a public street by recording a plat of a subdivision showing the street and selling lots of land by reference to the subdivision plat, that the street was accepted as a public street by the municipality, and that the defendant is maintaining a continuing nuisance by appropriating the land to his exclusive use, alleged a cause of action to enjoin the obstruction of a public street.
2. The evidence at the interlocutory hearing authorized the trial judge to grant the temporary injunction.
ARGUED MAY 10, 1966 — DECIDED JUNE 9, 1966.
Sweetbriar, Inc., brought a petition against Marion J. Young, seeking to enjoin the obstruction of a public street known as Patricia Drive, and judgment for damages. The petition, as amended, alleged: The defendant resides in Clayton Forest Subdivision, located in Land Lot 146 of the 12th District of Clayton County. The developer of this subdivision, who is a predecessor in title of the defendant, recorded a plat of Clayton Forest Subdivision in the records of Clayton County. This plat shows a proposed public street named Patricia Drive as approximately bisecting the subdivision and Land Lot 146, and being a continuous street from the point where it is contiguous with Land Lot 145, east, to the point where it intersects Georgia Highway No. 54. By recording this plat, the owner of Clayton Forest Subdivision expressly offered to dedicate Patricia Drive as a public street, affording access from Land Lot 145 to Georgia Highway No. 54. Prior to April 8, 1960, Patricia Drive was opened, and since that date has been used by the public as a street. On April 8, 1960, the City Council of Morrow approved street lights being installed along Patricia Drive, and the city has paid the operating costs of the street lights. On April 12 and July 12, 1963, the city council authorized the expense of improvements and repairs of Patricia Drive, and on March 18, 1965, approved the hiring of a paving company to repair the city streets, and prior to May 3, 1965, Patricia Drive was repaired by this paving company at the direction of the city council. The defendant purchased Lot No. 8 of Unit I in Clayton Forest Subdivision on February 14, 1961. The defendant's warranty deed described the property conveyed only by reference to the plat previously referred to, and all of the lots sold in this subdivision have likewise been sold by reference to the plat. On December 22, 1961, the petitioner's president, Donald L. Neustadt, purchased a tract of unimproved land abutting Clayton Forest, Inc., and Patricia Drive on the west, and subdivided the tract into 22 building lots. Donald L. Neustadt sold four of the lots, and thereafter, on October 31, 1962, conveyed the remaining lots to the petitioner. Prior to February 17, 1962, the petitioner's president employed registered engineers to prepare a plat of its subdivision. The petitioner's president submitted this plat, with an offer of dedication thereon of all streets, watercourses etc., to the City Council of Morrow, and on January 12, 1962, the city council accepted this express dedication of an easement for Patricia Drive as a public street, and recognized and accepted Patricia Drive as a continuous public street running from Reynolds Road to Georgia Highway No. 54. The City of Morrow filed a map and copies of the plats of the two subdivisions with the Secretary of State of Georgia, pursuant to Ga. L. 1962, p. 119, which map and plats show Patricia Drive to be a continuous street from Reynolds Road to Georgia Highway No. 54. On November 13, 1964, the City of Morrow enacted an ordinance approving and establishing an "official map" of the City of Morrow, as authorized and defined by Ga. L. 1957, p. 420, which law was adopted by the City Council of Morrow by resolution and ordinance dated June 8, 1962. The official map shows Patricia Drive as an existing public street, thereby constituting recognition and ratification of the city's prior acceptance of the express offer of dedication of the street. On July 1, 1965, the city, at a regular meeting of its council, ratified and recognized its prior acceptance of the express offer of dedication of Clayton Forest, Inc., by expressly accepting the streets located in Parcels 1, 2, and 3 of Clayton Forest, Inc. On or about May 3, 1965, the petitioner proceeded to grade Patricia Drive, when it was informed by the defendant that the defendant would not allow it to grade Patricia Drive across the land lot line between Land Lots 145 and 146. The defendant claimed that Patricia Drive terminated 10 feet short of Land Lot 145, and that he was in the process of acquiring this strip of 10 feet. On May 4, 1965, the defendant recorded a quitclaim deed from the developers of Clayton Forest Subdivision to this strip of land. The defendant will not allow the petitioner to grade this strip of land, and has refused to allow it access from its property in Land Lot 145 along Patricia Drive over this strip. The defendant stopped the petitioner's workmen who were grading Patricia Drive on or about May 3, 1965, and subsequently contacted the Police Chief of Morrow and instructed him to stop the grading, and the petitioner was instructed by the Police Chief not to proceed with the grading until the defendant's contentions have been legally determined. The defendant has wilfully and intentionally obstructed Patricia Drive and interfered with the petitioner's ingress and egress, to prevent it from building houses for resale on the same street with the petitioner. Georgia Highway No. 54 is the main avenue of Morrow, and furnishes the principal approach to the petitioner's subdivision via Patricia Drive. The unlawful closing of Patricia Drive therefore renders the petitioner's subdivision less accessible to prospective purchasers and less valuable to the petitioner, and the petitioner has suffered special damages not suffered by the general public. The supplying of utilities to its subdivision will be much more costly than it would be if such utilities could be obtained along the right of way of Patricia Drive. The petitioner has been unable to proceed with the construction of houses on its subdivision because of the unlawful obstruction of Patricia Drive, and this obstruction is of a continuing nature and is a continuing nuisance.
On March 8, 1966, the trial judge overruled the general demurrers to the petition. On the same date a hearing was held on the prayers for interlocutory injunction. On March 15, 1966, the judge granted an order temporarily restraining the defendant from obstructing, closing, or threatening to obstruct or close, any portion of Patricia Drive, and from interfering with the petitioner's right of use of Patricia Drive from the point where it is contiguous with Land Lot 145, and continuing across Land Lot 146, to the point where Patricia Drive intersects Georgia Highway No. 54.
The defendant appealed from this latter order, and in the enumeration of errors assigned as error the overruling of the general demurrers to the petition and the grant of the interlocutory injunction.
1. Where the owner of a tract of land subdivides it into lots and records a map or plat showing such lots, with designated streets, and sells lots with reference to such map or plat, the owner will be presumed to have expressly dedicated the streets designated on the map to the public. Bayard v. Hargrove, 45 Ga. 342; Carroll v. DeKalb County, 216 Ga. 663, 665 (2) ( 119 S.E.2d 258). "Where an owner of land makes an express dedication of a particular portion thereof for use as a public street, its acceptance may be shown by any act of the municipality recognizing the existence of the street as such, and treating it as one of the streets of the city." Lastinger v. Town of Adel, 142 Ga. 321 (1) ( 82 S.E. 884).
"Where land is dedicated to, and accepted by, a city for street purposes, such dedication inures to the benefit of the public and abutting property owners who bought abutting property by reference to plats showing such streets; and such dedication can not be abandoned by the dedicatee by mere nonuser." Harris v. Powell, 177 Ga. 15 (2) ( 169 S.E. 355); City of Albany v. Lippitt, 191 Ga. 756, 762 ( 13 S.E.2d 807).
After an owner of land has made a dedication of designated land for public streets, and the public authorities have accepted the dedication, the owner can not revoke the dedication by a sale of the land. Mayor c. of Macon v. Franklin, 12 Ga. 239; Bayard v. Hargrove, 45 Ga. 342, supra. "When a grantor sells lots of land, and in his deeds describes them as bounded by streets, not expressly mentioned in the deeds, but shown upon a plat therein referred to as laid out in a subdivision of the grantor's land, he is estopped to deny the grantees' right to use the streets delineated in such plat... By parity of reasoning those claiming under such conveyances are estopped from denying the existence of the streets so delineated upon the plat of the subdivision and given as boundaries of lots acquired by these and others from the grantor or those claiming under him. All persons claiming under such grantor are forever estopped to deny their existence." Tietjen v. Meldrim, 169 Ga. 678, 697 ( 151 S.E. 349); Rahn v. Pittman, 216 Ga. 523 (1) ( 118 S.E.2d 85).
A landowner may maintain a suit in equity to enjoin interference with his means of ingress to and egress from a public street, when such interference amounts to a continuing nuisance or trespass, and where an injunction would prevent a multiplicity of suits. Barham v. Grant, 185 Ga. 601, 606 ( 196 S.E. 43); Holland v. Shackelford, 220 Ga. 104 (2) ( 137 S.E.2d 298). Allegations of the refusal by the defendant to allow the petitioner to come on the property alleged to be a public street, and the assertion by the defendant of his intention to appropriate the property to his exclusive use, are sufficient to allege a continuing nuisance. Compare Rahn v. Pittman, 216 Ga. 523, supra.
The petition in the present case stated a cause of action for injunction, and the trial judge did not err in overruling the general demurrers. Special demurrers raising questions as to the proper measure of damages were not ruled on by the trial judge.
2. It is strongly urged by the appellant that the trial judge. abused his discretion in granting the interlocutory injunction. The evidence at the hearing showed that a predecessor in title of the appellant subdivided property and designated a street as Patricia Drive on the plat of the subdivision; and that this street was opened and used as a public street. The real controversy between the parties is as to whether a strip of this designated street of approximately 10 feet, abutting the property of the appellant and at the end of the street abutting the property of the appellee, was dedicated by the owner and accepted by the City of Morrow as a public street.
The original plat of Unit I of the Clayton Forest Subdivision shows Patricia Drive as a continuous street from the point where it intersects Georgia Highway No. 54 to the point where the property of Clayton Forest, Inc., adjoins the property now owned by the appellee. This plat was recorded in Plat Book 5, at page 216, and it is the plat to which reference is made in describing the property conveyed in the deeds forming the chain of title from Clayton Forest, Inc., to the appellant. A subsequent plat, denominated a "Revised Survey" of Unit I of Clayton Forest Subdivision was recorded in Plat Book 5, at page 276. It is the contention of the appellant that this plat shows a cul-de-sac at the point where Patricia Drive abuts the property of the appellee, and that the revised plat and the quitclaim deed dated May 1, 1965, from Clayton Forest, Inc., to the appellant, conveying a strip of land approximately 10 feet wide across this end of Patricia Drive, show that it was not the intention of Clayton Forest, Inc., to dedicate this strip to public use.
By examination of the revised plat we find that numerous revisions were made in the dimensions of the lots in the subdivision. Patricia Drive appears on the plat exactly as in the former plat with the exception that at the end of the street abutting lots 7 and 8 (lot 8 being the property owned by the appellant) lines are shown curving into lots 7 and 8. These curved lines may indicate a cul-de-sac, but they do not meet within the property of the Clayton Forest Subdivision, and the street remains open at the property line on this revised plat. The revised plat indicates no reservation of a strip of land within the subdivision closing Patricia Drive.
The trial judge was authorized to find that Clayton Forest, Inc., dedicated Patricia Drive for the use of persons purchasing lots in the subdivision and for the use of the public, and that this street extended continuously from Georgia Highway No. 54 to the property now owned by the appellee.
Copies of plats were introduced in evidence, certified by the Honorable Ben W. Fortson, Secretary of State and Surveyor-General of the State, as having been submitted to his office by the City of Morrow, through its Mayor, on March 8, 1963, pursuant to Ga. L. 1962, p. 119. These plats show Patricia Drive as a continuous street from Reynolds Drive to Georgia Highway No. 54. This evidence was sufficient to show that the City of Morrow had accepted the dedication of Patricia Drive by the appellant's predecessor in title, Clayton Forest, Inc. Adams v. Richmond County, 193 Ga. 42, 47 ( 17 S.E.2d 184).
Since the trial judge was authorized to find that the entire length of Patricia Drive, as shown by the plats filed by Clayton Forest, Inc., had been expressly dedicated as a public street, and had been accepted by the City of Morrow, prior to the date that Clayton Forest, Inc., attempted to convey a strip of 10 feet of this street to the appellant, the judge was authorized to find that Clayton Forest, Inc., had no right to convey this property to the exclusive use of the appellant, and that the appellant acquired no right to close this public street by the quitclaim deed.
While the evidence was undisputed that this strip of land had never been used as a street, the mere non-user of this portion of the street, which was within the definitely fixed limits of the express dedication, would not amount to an abandonment of it. Harris v. Powell, 177 Ga. 15 (2), supra; City of Albany v. Lippitt, 191 Ga. 756, 762, supra.
The trial judge did not abuse his discretion in granting the interlocutory injunction.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., who is disqualified.