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Injunction. Hall Superior Court. Before Judge Kenyon.
NICHOLS, Justice.
The trial court did not err in granting the temporary injunction prohibiting the defendant from interfering with the use and maintenance of a road contended by the plaintiff to be a public road.
Hall County filed a complaint in which it sought an injunction to prohibit the defendant from blocking a described road, interfering with the use of said road by the public and interfering with the plaintiff's maintaining said road. The defendant filed four defenses. The first defense maintained that the complaint failed to state a claim, the second defense denied the material allegations of the plaintiff's complaint other than residence, the third defense denied the existence of the road across his property and the fourth defense denied the plaintiff or the public had acquired any easement across the property for road purposes. After hearing evidence, including affidavits, the trial court entered an interlocutory injunction.
The court's decree was as follows: "The plaintiff in the above suit seeks a temporary and permanent injunction, enjoining the defendant from interfering with the use and maintenance of the public road sometimes referred to as Beverely Road and described by the pleadings and evidence in this case. The court has considered extensive evidence submitted by testimony of witnesses appearing on two hearings in the case and by affidavit and documentary evidence. The court has considered the following authorities:
" 'If the owner of lands, either expressly or by his acts, shall dedicate the same to public use, and the same shall be so used for such a length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, he may not afterwards appropriate it to private purposes. Code 85-410.
" 'The only essential elements of a valid dedication of lands to the public are: (1) an intention of the owner to dedicate to a public use, and (2) an acceptance thereof by the public. Tift v. Golden Hardware Co., 204 Ga. 654, 656 (4) (51 SE2d 435).' Chatham Motorcycle Club v. Blount, 214 Ga. 770, 775 (107 SE2d 806). 'There may exist, however, an implied dedication; but whether express or implied, an intention on the part of the owner to dedicate his property to the public use must be shown . . . When an implied dedication is claimed, the facts relied on must be such as to clearly indicate a purpose on the part of the owner to abandon his personal dominion over the property and to devote it to a definite public use.' Dunaway v. Windsor, 197 Ga. 705, 707 (30 SE2d 627). However, 'The mere use of one's property by a small portion of the public, even for an extended period of time, will not amount to a dedication of the property to a public use, unless it appears clearly that there was an intention to dedicate, and that this dedication was accepted by the public authorities.' Healey v. City of Atlanta, 125 Ga. 736, 738 (54 SE 749); Chatham Motorcycle Club v. Blount,supra. Hasty v. Wilson, 223 Ga. 739 (5) [158 SE2d 915].
"8. An acquiescence cannot be effective to deprive the owner of his property when the claimed acquiescence amounts to no more than a failure to protest in isolated instances when some members of the public travel over his land.
"9. The mere use of one's property by a small portion of the public, even for an extended period of time, is not sufficient to authorize an inference that the property has been dedicated to a public use, unless it clearly appears that there was an intention to dedicate, and that this dedication was accepted by the public authorities, either in express terms or by implication resulting from the maintenance of a way public in its nature.
"10. An occasional road-working of the property by the public authorities, there being no other evidence of maintenance, is not of itself sufficient to create the presumption of an intention to dedicate. The use and maintenance must be of the character, and for the length of time, sufficient to create a presumptive right of the public therein. Dunaway v. Windsor, 197 Ga. 705 (8) (9) (10) [30 SE2d 627].
"(a) Though a right of private way over the land of another may arise from prescription by seven years' uninterrupted use through improved lands (Code 85-1401), a mere passing by the public through an alley in a city, belonging to the owner of the adjacent property, and kept open by him for his own use and that of his tenants, will not ripen into a right to continue such passing by any lapse of time, no repairs having been made, and no other acts being done so as to give notice to the owner of a claim of right to use the alley as distinguished from a mere license or permission. Cook v. Gammon, 93 Ga. 298 (20 SE 332); Nassar v. Salter, 213 Ga. 253 (98 SE2d 557). Use by members of the public alone is insufficient to acquire prescriptive title. It must be kept open and in repair. First Christian Church v. Realty Investment Co., 180 Ga. 35 (178 SE 303). Tribble v. Mayor and Aldermen of the City of Forsyth et al., 225 Ga. 204 (1) (a) [166 SE2d 886].
"In Adams v. Richmond County, 193 Ga. 42 48 (17 SE2d 184), it was held that: '[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.' Furthermore, as held in Mayor &c. of Macon v. Franklin, 12 Ga. 239, 244 (3): '[T]here is no particular form of making a dedication. It may be done in writing, or by parol; or it may be inferred from his acts, or implied, in certain cases, from long use. A grant is not necessary to create it.' Moon v. City of Conyers, 222 Ga. 526 [150 SE2d 873].
"Dedication and use by the public would not of themselves make a street or alley a public way so as to charge the municipality with the burden of repairs and maintenance and liability for injuries sustained by reason of the defective condition of such way, unless the dedication is accepted by the proper municipal officials or there is evidence of recognition of such way as a public one. Maddox et al. v. Willis et al., 205 Ga. 596 (4) [54 SE2d 632].
"The evidence submitted indicates that the defendant had a deed prepared conveying an easement or right of way to the county, that he delivered this, that it apparently was never expressly accepted nor recorded, that nevertheless the plaintiff employed a surveyor (Henry Grady Jarrard) to prepare a plat of plaintiff's property and that said plat showed the road in question as an unnamed street. Homer Glenn Whitmire testified that he had traveled this road by car since the 1930's, 'a lot in the 1940's and up into the 1950's,' that the county had scraped and worked on the road since the 1940's and into the 1950's, that there was a bridge built by the county in the 1940's. Otis Stringer testified that as road maintenance supervisor for the county he worked the road, widened it, built a bridge in 1949, that he worked it twice a year, that the public used it. Richard Folger, present county engineer, testified that the county worked the road in 1970, that there is a road there, that people traveled it, that the plaintiff had 'pulled a pan across the road.' Wilbur Franklin Ramsey testified that the road was 20 to 30 feet wide before the defendant started tearing it up, that he had used the road since 1938 without permission as a public road, that he had used it the same month he testified in this case, that the county had worked the road first between 1949 and 1950 and that the county had scraped the road since that time and that it is in the same general location as when he first used the road. Howard Sears as County Administrator testified he could find no entry in the minutes of the Commissioners of Roads and Revenues of either the dedication or acceptance by the county, but that the road in question is shown on a current State Highway Department map as of 1956, 1961 and 1964. Virginia Ledford Hall by affidavit testified she is familiar with the road, that she and the general public have used the road since 1946 continuously and that the use of the road during that time has been peaceable and uninterrupted until 1970 when the defendant blocked the road. She attaches to her affidavit a copy of an agreement between herself and the defendant whereby it is agreed that the road be established and designated as a permanent public road and that it need not 'be in the exact location that it has heretofore existed but shall be approximately in the same location.' Mrs. Pearl Smith by affidavit testified that she had used the road since 1940, that Hall County had scraped, repaired and constructed bridges on the road since 1945 and that the use of the road by the public has been continuous since 1940. Other witnesses, Clark W. Bailey, Thomas Williamson, Lorenzo Church, H. E. Ellis also testified in a similar manner with variation as to the length of time they had knowledge of the facts.
"The defendant testified that he purchased the property in 1943 and 1944, that he did deliver a deed to Hall County offering the easement or right of way, that he assumed the county accepted but was later advised that they had not, that he was away for a period of time but came back in 1959 and that the road was then closed, that he reopened it, that he had done various grading and relocations and that the road had not been in continuous use or in the same location and that the county had not continuously worked and maintained the road.
"Considering all the evidence and the fact that the defendant did not purchase the property involved until 1943 or 1944, that he was away for a period of time, and applying the law set forth above to the evidence in the case, we are compelled to the conclusion that the plaintiff is entitled to an injunction in this case and the defendant is, accordingly hereby enjoined from blockading said road and from interfering with its use by the public and its maintenance by the plaintiff."
1. The first enumeration of error contends that a part of the property allegedly traversed by the road is inside the city limits of the City of Gainesville and that, therefore, the City of Gainesville is a necessary party for the litigation. Under the decision in County of Gordon v. Mayor &c. of Calhoun, 128 Ga. 781 (58 SE 360), relied upon by appellant the city would have been a proper party, but where the issue is whether the road was dedicated by implication at a time when none of the area traversed by the alleged road was inside the corporate limits, the city is not a necessary party to the litigation. No question as to duty to maintain such road is involved, but solely whether there exists a public road.
2. The remaining enumerations of error complain that the evidence did not disclose a dedication by the defendant and an acceptance by the plaintiff and that the pleadings and evidence did not show any description of the property which the defendant is enjoined from interfering with.
The judgment of the trial court was authorized by the evidence and supported by the legal principles set forth in such decree. The judgment granting the temporary injunction must be affirmed.
FELTON, Justice, dissenting. 1. I dissent from the judgment to the extent that it involves any part of the road in question which lies within the city limits of Gainesville. The city is not a party plaintiff in this case. No one but the City of Gainesville could be interested in insisting that there had been an implied dedication of that part of the road within the city limits and whether it would accept the alleged implied dedication and accept the responsibility and expense of repairing it and keeping it in condition for use by the public. The city would not be bound by the decision in this case.
2. I dissent from the judgment involving Hall County for the reason that the appellant offered the county a deed of dedication for a consideration of $1.00 and construction and maintenance of the road. The deed provided that in case the right of way granted therein was ever abandoned as a public road or the grantees or successors failed to maintain the road as a public road, it should revert to the property from which it was taken. The county refused to accept this formal dedication. I maintain that in view of the refusal by the county to accept this formal, explicit and definite dedication, the county is in no position to rely on an implied dedication of a road of indefinite width and difficulty of location and identification at various points. After such refusal by the county I do not believe that the law will recognize an implied dedication; first, because no inference of an implied dedication could be made in favor of the appellant against the county for the reason that the express dedication had been refused and the appellant could not force the county to accept an implied dedication when it in effect refused a formal one. Neither can the county refuse a formal and definite dedication and insist on an informal, elusive, indefinite and uncertain one so greatly affecting a citizen. Nothing is shown as to why appellant should be estopped to oppose the present conduct of the county on account of any transactions between him and the county which would make it unconscionable for him to act otherwise than he is acting to prevent a legal finding that he has made an implied dedication.
I cannot agree with the majority's statement at the end of Division 1 that "no question as to the duty to maintain such a road is involved, but solely whether there exists a public road." If the county had stated in open court that it did not have the obligation to maintain the road even if it had won the case, it would have disclaimed the right to claim an implied dedication and to stay in court.
Greer, Sartain, Carey & Cromartie, Tifton S. Greer, for appellee.
Robert E. Andrews, for appellant.
ARGUED APRIL 12, 1971 -- DECIDED MAY 6, 1971.
Friday May 22 16:20 EDT

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