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R. G. FOSTER & COMPANY et al. v. FOUNTAIN; and vice versa.
20887.
20894.
Equitable petition. Jefferson Superior Court. Before Judge Carpenter. March 4, 1960.
HEAD, Presiding Justice.
The demurrers of the defendants were properly overruled. The motions of the defendants for a directed verdict in their favor, and for a judgment notwithstanding the verdict, were properly denied. The verdict and judgment for the petitioner is supported by the evidence (except in part as to damages); the assignments of error in the amended grounds of the motions for new trial were not meritorious; and the judgments denying the motions for new trial are affirmed on condition.
Mrs. Hattie H. Fountain filed a petition for equitable relief against R. G. Foster & Company, a corporation, with an office and place of doing business in the county, and Carter Townsend, as foreman in charge of construction being conducted along U. S. Highway No. 1 in the City of Swainsboro. It was alleged: The petitioner is the owner of a lot or parcel of land fronting 87 feet on the west side of South Main Street, and extending back between parallel lines a distance of 200 feet, bounded on the north by Moring Street, east by South Main Street, south by C. G. Mixon, and west by other lands of the petitioner, being a part of the property conveyed to the petitioner in the division of an estate by deed dated June 5, 1923, and recorded in the office of the clerk of the superior court. Neither the petitioner, nor any of her predecessors in title, ever conveyed any part of South Main Street to the public authorities or anyone else. The petitioner owns the property described to the center line of South Main Street; subject only to the nights the public have by implied dedication to use the present paved street from the center line of the street to the west side of the curb and gutter, and whatever rights the public might have to the property presently covered by a sidewalk which was constructed by the petitioner and the City of Swainsboro for sidewalk purposes. The west side of the curb and gutter is 17 1/2 feet from the center line of the street on the north end of the petitioner's property, and 15 feet from the center line on the south end of her property. The sidewalk is 5 feet wide, and the western side of the sidewalk is 26 1/2 feet from the center line of the street. At the time the petitioner acquired title to the property described, Main Street was a dirt street approximately 20 feet wide, and there was a path for foot travel approximately 2 feet wide, substantially in the same place as the present sidewalk. In 1927 or 1928, there was a program to pave South Main Street. The petitioner cooperated and allowed the street in front of her property to be paved, and paid all assessment as an abutting property owner of approximately $5 per front foot, as her share of the cost of paving the present street. Several months after the street was paved, a program was begun by the City of Swainsboro to construct a sidewalk parallel to the paved street. The petitioner cooperated and allowed her property to be used for the present sidewalk, and paid the assessment as an abutting property owner of approximately $7.50 per front foot. The land between the west side of the present curb and gutter and the east side of the present sidewalk is owned by the petitioner, and neither the City of Swainsboro nor anyone else owns any right, title, or interest therein. All property west of the present sidewalk is the property of your petitioner, and it has never been used nor maintained by the City of Swainsboro, nor anyone else, except the petitioner and her predecessors in title. Recently a project was begun to widen U. S. Highway No. 1, including South Main Street. The contract for construction was awarded to R. G. Foster & Company by the State Highway Department of Georgia, and work was started on the widening of the highway. In September, 1957, the Highway Department started to file condemnation proceedings to condemn a portion of the petitioner's property. Attorneys for the department gave the original proceedings to the petitioner's son, R. H. Humphrey, with the request that he obtain an acknowledgment of service. Thereafter one of the attorneys for the State Highway Department requested that the condemnation proceedings be returned to them, that they had been instructed by the department not to file proceedings, because it was unnecessary; and such proceedings were never actually filed. The foreman for the contractor doing the work informed the petitioner's son that the contract provided for construction on all property along South Main Street within 30 feet of the center line of the street. The foreman was requested by the petitioner's son that neither he, nor any of the agents or employees of the contractor, go upon the petitioner's property until the matter could be adjusted. The employees of the contractor, under the direction of the foreman, went upon the petitioner's property and started breaking con-
crete along the sidewalk, and trespassed upon and damaged the petitioner's property on both sides of the sidewalk, and the foreman informed the petitioner that he had instructions to use all of the property within 30 feet of the center line of the street, including the property of the petitioner. Actual damage was done to the petitioner's property in the amount of $500, and the petitioner is entitled to punitive damages in an alleged amount. Unless the defendants are enjoined, they will commit other trespasses upon the petitioner's property and cause irreparable damage. If the highway is constructed as the petitioner has been informed that it will be, it will constitute a continuing trespass upon the petitioner's property, and her property will be taken without due process of law. The prayers were that the agents and employees of the defendants, and each of them, be temporarily and permanently enjoined from trespassing upon the petitioner's property, for rule nisi, for the recovery of actual and punitive damages, and for other relief.
The defendants vouched the State Highway Department and the State Highway Board into court to defend the action, it being asserted that any liability against the defendant would be a primary liability of the department and of the highway board.
The defendants R. G. Foster & Company and Carter Townsend filed general and special demurrers. They filed an answer wherein they neither admitted nor denied that the petitioner was the owner of the property described; they denied that neither the petitioner, nor her predecessors in title, had ever conveyed any part of south Main Street to the public authorities, and that whatever rights the public might have to use the present paved street was by implied dedication; they neither admitted nor denied the allegations as to the curb and gutter being 17 1/2 feet from the center line of the street, and the distance from the center line to the west side of the sidewalk being 26 1/2 feet; they neither admitted nor denied the allegations that Main Street was a dirt street approximately 20 feet wide with a path for foot travel approximately 2 feet wide at the time the petitioner acquired her property; they denied that she allowed the paving referred to of the street and sidewalk, and that she was the owner of the property on the west side of the sidewalk; but neither admitted nor denied that no one other than the petitioner and her predecessors in title had ever used the property on the west side of the sidewalk; the other allegations of the petition were denied.
The State Highway Department filed demurrers and an answer. By the answer it was denied that the petitioner is the owner of the lot described; that neither she nor her predecessors in title had ever conveyed any part of South Main Street to the public authorities; and that the petitioner was the owner of the property to the center line of South Main Street, subject to the rights of the public by implied dedication to use the present paved street and the property presently covered by the sidewalk. This defendant admitted that the petitioner cooperated in the program to pave South Main Street, and in the program to construct a sidewalk, but denied that she allowed the improvements, or that her consent was necessary in accomplishing the improvements. The allegations were admitted that there was a project to widen U. S. Highway No. 1, and that the contract had been awarded to the other defendant. The other allegations of the petition were denied.
The demurrers of the defendants were overruled. On the trial of the cause the jury returned a verdict finding in favor of the petitioner for a permanent injunction against the defendants, and property damage in the amount of $500. A judgment pursuant to the verdict was duly entered.
The defendants R. G. Foster & Company and Carter Townsend filed a joint motion for a judgment notwithstanding the verdict, wherein it was asserted that a motion for a directed verdict was made at the trial at the close of the evidence, it being contended that the evidence demanded a verdict for the defendants, and that the evidence and the law demanded a verdict for the defendants "at least as to that area in controversy lying on the eastward side of the western edge of the fonder sidewalk in front of the plaintiff's property." The motion for new trial included therein was on the usual general grounds.
The State Highway Department filed a similar motion for a judgment notwithstanding the verdict and motion for new trial; the language in the motion filed by the defendants R. G. Foster & Company and Carter Townsend and the motion filed by the State Highway Department being in substance the same. Subsequently the defendants amended their motions for new trial and for a judgment notwithstanding the verdict, the amendments to the motions of the separate defendants being the same in substance.
The motions for a judgment notwithstanding the verdict and the motions for a new trial were denied in separate judgments entered on the same date. In a joint bill of exceptions the defendants assign error on the overruling of their separate demurrers; they also assign as error the judgments denying their motions for a judgment notwithstanding the verdict, and their motions for a new trial. The cross-bill of exceptions assigns error on the admission of certain testimony, and on the admission of certain documentary evidence.
In so far as germane to the rulings made the evidence will be referred to in the opinion. The parties will be referred to in the opinion as they appeared in the trial court.
This court will take judicial notice of the acts of the General Assembly of this State. Code 38-112. There is no evidence in the present case that the town or village of Swainsboro prior to its incorporation as the Town of Paris (Ga. L. 1853-54, p. 269), or the Town of Paris prior to the repeal of the act incorporating such town (Ga. L. 1855-56, p. 398), or the Town of Swainsboro after its incorporation by the General Assembly in 1857 (Ga. L. 1857, p. 192), or the City of Swainsboro, incorporated by the General Assembly in 1900 (Ga. L. 1900, p. 427), ever received any deed, grant, or other express written dedication to Main Street in the City of Swainsboro. Bayard v. Hargrove, 45 Ga. 342; Ford v. Harris, 95 Ga. 97 (22 S. E. 144); Owens Hardware Co. v. Walters, 210 Ga. 321 (80 S. E. 2d 285).
There is no evidence of any express oral dedication of Main Street as a public way by the petitioner or her predecessors in title, nor is there anything in the record to show that Main Street in the City of Swainsboro was laid out for public use by an act of the General Assembly, or that it came into existence as a county road by order of the ordinary or other authority having charge of county affairs (Code 95-101), subsequently to the creation of Emanuel County by act of the General Assembly in 1812 (Ga. L. 1812, p. 828). While there is some testimony that the city scraped the streets and raked the sidewalks before the paving completed in 1928, the evidence is wholly insufficient to show that the city acquired title by prescription.
In the joint brief of counsel for the defendants it is said: "If the case at bar is not one of express dedication (it seems to us that it is such), certainly the case at bar is one where, as heretofore pointed out, the intention to dedicate, and to rededicate, is definitely and actively made entirely clear for all the purposes of defendant's case, and where this is true there is no distinction in legal results between semantics of express and implied dedication." While counsel for the defendants in oral argument conceded that the defendants relied upon implied dedication, he did not refer to the erroneous statement that there is no distinction in legal results between express and implied dedication. Where there has been an express dedication to public use and acceptance by the public or public authorities of only a part, longitudinally, such acceptance extends to the limits of the express dedication. In cases of implied dedication, there is no dedication implied beyond the use. Ellis v. Mayor &c. of Hazlehurst, 138 Ga. 181, 184 (75 S. E. 99); Adams v. Richmond County, 193 Ga. 42, 49 (17 S. E. 2d 184). When dedication results from mere use and acquiescence, it is not to be inferred that the donor parted with more than the use necessitates. Brunswick &c. R. Co. v. Mayor &c. of Waycross, 91 Ga. 573 (17 S. E. 674).
The petitioner concedes that the public has acquired by implied dedication the right to use Main Street to the west side of the curb and gutter. The evidence is in conflict as to whether or not the City of Swainsboro has acquired rights to the "grassy plot" along Main Street. There is no contradiction of the evidence offered on behalf of the petitioner that the present sidewalk is located approximately in the same area as the walkway or dirt sidewalk which existed prior to the construction of the present paved sidewalk. There is no evidence of express dedication, and no implied dedication is shown of the land upon which the paved sidewalk is located other than for sidewalk purposes. Where private property abutting on a public highway is dedicated by the owner to the use of the public as a sidewalk, it can not be converted into a street for vehicular travel without first acquiring the right to do so from the owner, either by purchase or under the right of eminent domain. Brown v. City of East Point, 148 Ga. 85 (95 S. E. 962); Donalson v. Georgia Power &c. Co., 175 Ga. 462 (165 S. E. 440); Hams v. Powell, 177 Ga. 15, 21 (169 S. E. 355).
As to the 3 1/2 feet of property lying west of the sidewalk, there is no implied dedication by use on the part of the public, and as to this strip of property the petitioner's case falls squarely within the rule stated in Georgia R. & Bkg. Co. v. City of Atlanta, 118 Ga. 486 (45 S. E. 256), as follows: "Private property can not be taken for public use without payment therefor; nor can this end be obtained under a claim of dedication, unless it appears that the owner has expressly given the property, or, by his long-continued acquiescence in the exclusive use thereof, signified an intention to devote it to public purposes."
Under the evidence and the applicable rules of law, the verdict for the petitioner (except as to the amount of damages) was amply authorized (if not demanded), and the motions by the defendants for a directed verdict in their favor, and for a judgment notwithstanding the verdict, were properly denied by the trial judge.
The defendants' Exhibit No. 4 is a plat or map with the notation, "Drawn by J. B. Moring," under which there is entered in writing, "January 4th 1881." This map or plat recites that it is "a representation of the town of Swainsboro Emanuel County Georgia." This plat or map lists a number of streets, showing Main Street to be 60 feet wide and Green Street 50 feet wide. Rountree Street, Steam Mill Street, Moring Street, and Appletree Street are represented as being 30 feet wide.
The defendants' Exhibit No. 5 purports to be a representation of the Town of Swainsboro, Emanuel County, Georgia, and bears the following affidavit: "49 yds. 7 1/4 inches square is a half acre. Georgia, Emanuel County: I, George W. Clifton, before me, A. D. Proctor, a Justice of the Peace in and for said county, do solemnly swear that as Surveyor, I did run out, survey and plat the township of Swainsboro, it being the county seat and principal town of said county. The survey and plat this day exhibited to me by Lewis W. Canady is the one made by me of the wotnship [sic] of said town, and is in every and all particulars, taking in consideration metes and bounds, longitudes and latitude, directions, space and distance, correct. Sworn to and subscribed before me this 24th day of November, 1890. A. D. Proctor George W. Clifton"
The defendants' Exhibit No. 6 purports to be a representation of the Town of Swainsboro, and bears the following certificate: "State of Georgia, Emanuel County. We hereby certify that the above plat is a true representation of the town of Swainsboro together with the County reserve and incorporation bounds. Surveyed by us September 2, 3, 4 and 5, 1874. Given under our hand . . . and seal of office. John D. Overstreet, C. S. E. C. George W. Clifton, D. S. E. C." This plat or map in writing bears the following notation: "Main Street is 60 feet and all the rest is 50 feet wide."
The defendants' Exhibit No. 23 bears the following notation: "Plan of the Town of Swainsboro, Georgia . . . Recorded Feby. 19th, 1874- R. J. Pughsley, Clerk."
"Surveys or plats of land made by the county surveyor, under order of court, and on notice to all the parties, of lands within his county, signed by him officially, and stating the contents, courses, distances, of any land surveyed by him, are presumptive evidence of the facts, if all the requisites of the law touching such surveys and the reports thereof are complied with." Code 23-1112.
In Durden v. Kerby, 201 Ga. 780, 781 (41 S. E. 2d 131), in a full-bench decision prepared for this court by Mr. Chief Justice Jenkins, it was said in part: "The Code, 23-1112 deals with surveys or plats of official origin, and when such surveys or plats conform to the provisions of that Code section, they are admissible as 'presumptive evidence of the facts'; but unless a survey or plat is of official origin and meets the requirements of the Code section mentioned, it carries no presumptive value as evidence of the facts, although, if verified by oral testimony, it is admissible as a part of and as illustrative of such oral testimony for whatever it may be worth. Maples v. Hoggard, 58 Ga. 315; Bunger v. Grimm, 142 Ga. 448, 450 (4) (83 S. E. 200, Ann. Cas. 1916C, 173); Bower v. Cohen, 126 Ga. 35 (4) (54 S. E. 918); Parker v. Salmons, 113 Ga. 1167 (3) (39 S. E. 475); Acme Brewing Co. v. Central Ry. .&c. Co., 115 Ga. 495 (5) (42 S. E. 8)." See also Clare v. Drexler, 152 Ga. 419 (10) (110 S. E. 176); Mickle v. Moore, 188 Ga. 444, 447 (4 S. E. 2d 217); Georgia Power Co. v. Green, 207 Ga. 250. (61 S. E. 2d 146); Woodard v. Bowen, 213 Ga. 185, 187 (97 S. E. 2d 573); McClung v. Schulte, 214 Ga. 426, 428 (105 S. E. 2d 225).
"Main Street is 60 feet and all the rest is 50 feet wide"; whereas the plat or drawing made by P. B. Moring dated January 4, 1881, and being the defendants' Exhibit No. 4, shows a number of named streets to be but 30 feet wide. None of the purported maps, plats, or surveys were shown by the testimony of any witness to be correct, and they were not admissible either as presumptive evidence under Code 23-1112, or as illustrating the testimony of any witness testifying to their correctness. The same is true of the purported plats offered in evidence by the defendants, the exclusion of which plats is assigned as error in ground 15 of the amended motions for new trial of both defendants.
The defendants introduced in evidence a number of certified copies of deeds pertaining to the property of the petitioner. Where title to a public road or highway is not shown to be in the public by express grant, the owner of a lot abutting on such road or highway is presumed to own the fee to that half of the road or highway contiguous to his land, and this presumption is not rebutted by the description in a deed which refers to the road, street, or highway as the boundary line on one side of the property described. Long v. Faulkner, 151 Ga. 837 (108 S. E. 370).
In ground 10 of the amended motions for new trial, error is assigned on the following extract from the charge of the court: "Look to the evidence in this case and see if there is or is not any intention upon the part of the owner of this land, Mrs. Fountain, and her predecessors in title, to manifest an intention to dedicate that portion of Main Street now in controversy." It is contended that it was error and injurious to charge, "Mrs. Fountain, and her predecessors in title," rather than, "either Mrs. Fountain, or her predecessors in title," and that this charge tended to mislead and confuse the jury. This charge was a verbal inaccuracy, in that the word "and" was used in place of "or." It followed an instruction by the court that: "Dedication of land is either express or implied. Where dedication is implied, as contended in this case, it must appear that the land has been in the exclusive control of the public for period long enough to raise the presumption of a gift, and such presumption arises where there is proof of such use for a period of seven years, accompanied by evidence of such acquiescence on the part of the owner as would manifest intention to make a gift." Under this instruction, the inaccuracy of the charge excepted to was not prejudicial to the defendants. Other than herein noted, the court fully, fairly, and impartially charged the applicable law on the issues in the case.
The case of State Highway Dept. v. Strickland, 214 Ga. 467 (105 S. E. 2d 299), referred to by counsel in oral argument, and the cases of City of Albany v. Lippitt, 191 Ga. 756 (13 S. E. 2d 807), and Franklin v. Board of Lights &c. Works, 212 Ga. 757 (95 S. E. 2d 685), are not in point on their facts with the present case.
The jury's verdict for $500 damages for the petitioner can not be sustained under the evidence offered. The highest damage shown by the evidence is $428. If counsel for the petitioner, upon the return of the remittitur of this court, will write off the excess ($72), the judgments denying the motions for new trial are affirmed; otherwise they are reversed in so far as they relate to damages.
Grounds 1 and 2 of the cross-bill of exceptions are not meritorious. The cross-bill assigns error on the admission in evidence of the plats identified as defendants' Exhibits Nos. 3, 4, 5, 6, and 7. For the reasons heretofore set forth, these exhibits were improperly admitted.
Judgments affirmed in part and affirmed on condition in part on the main bill of exceptions; affirmed in part and reversed in part on the cross-bill. All the Justices concur.
Homer S. Durden, Jr., Rountree & Rountree, J. Roy McCracken, contra.
George L. Smith, II, Williams & Smith, Felix C. Williams, Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, Ariel V. Conlin, Deputy Assistant Attorney-General, Abbott & Abbott, W. Wright Abbott, for plaintiffs in error.
ARGUED MAY 9, 1960 -- DECIDED JUNE 9, 1960.
Saturday May 23 00:19 EDT


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