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DUNLAP et al. v. TIFT et al.
17829.
Injunction. Before Judge Mallory C. Atkinson. Bibb Superior Court. January 24, 1952.
ATKINSON, Presiding Justice.
1. The amended petition was sufficient to set forth a cause of action to enjoin the city from vacating, for private purposes, designated portions of public alleys, and the trial court did not err in overruling the defendants' grounds of demurrer.
2. The evidence authorized a finding that the action of the city in vacating portions of public alleys was taken without reference to the rights of the public, and, accordingly, the trial court did not err in granting an interlocutory injunction.
Square 59 in the City of Macon, as laid out in 1822, contained 8 lots and was bounded south by Pine Street, east by Third Street, north by Plum Street, and west by Second Street. An original 20-foot alley, now known as Plum Street Lane, running east from Second Street to Third Street, separates lots 1 and 2 on the south from lots 7 and 8 on the north. An original 10-foot alley, now known as Second Street Lane, running south from Plum Street to Pine Street, separates lots 3 and 6 on the west from lots 2 and 7 on the east.
Petitioners Mrs. Tift and Mrs. Mendenhall are the owners of a tract of land consisting of a part of lots 1 and 2, which fronts upon Third Street and also has a frontage of 84 feet on the south side of the original 20-foot alley. The rear portion of the realty is located at the intersection of the two alleys. Petitioner Thornton is the lessee of the realty, and operates in a brick building thereon a motor truck business. The shop which is operated in connection with the motor truck business is located on that portion of the property which abuts upon the original 20-foot alley, the only vehicular entrance thereto being from said alley.
By acquiescence of the city and the adjoining property owners over a 40-year period prior to 1907, the south line of the original 20-foot alley, which is also the north line of lots 1 and 2, was shifted 7 1/2 feet north, as shown by a quitclaim deed from the city to E. A. Sheridan, dated February 2, 1907. This deed contained, among others, recitals that a survey made by the city engineer showed that Sheridan's predecessors in title had erected a house, a portion of which was on the 20-foot alley, and that other property owners had built out to the building line so established.
The building line on the south side of the original 20-foot alley for its full length through Square 59 is the one as fixed by the north wall of the building now located on the lot formerly owned by Sheridan.
About the year 1906, the city and Ben L. Jones, the then owner of lots 7 and 8 located on the north side of the original 20-foot alley and across the alley from petitioners' property, came to an agreement whereby Jones purchased certain encroachments into Third and Plum Streets as additions appurtenant to his lots, and paid therefor $210, and as a further consideration agreed to convey to the city a strip of land 17 feet in width in lots 7 and 8 abutting the 20-foot alley, and a strip of land 15 feet in width in lot 7 abutting the 10-foot alley. Deeds were never made to carry out the agreement, but each party in good faith went into possession and recognized the validity of the exchange. On February 7, 1933, Phoenix Mutual Life Insurance Company, the then owner of lots 7 and 8, and the city executed a mutual deed, whereby, in exchange for a conveyance of the above-mentioned encroachments into Third and Plum Streets, the insurance company conveyed to the city the two strips of land abutting the alleys. The purpose of the mutual deed, as stated therein, was to confirm to the city the two strips of land which had for more than 20 years been owned and used by the city as additions to the alleys, and to confirm to the insurance company the encroachments into Third and Plum Streets, now appurtenant to lots 7 and 8, which had for more than 20 years been owned and used by the insurance company and its predecessors in title. The buildings on lots 7 and 8 since their erection, some of them for more than 20 years, have extended to the outer limits of the encroachments, and the insurance company and its predecessors in title have paid taxes on the encroachments and the improvements thereon. The city accepted the formal dedication of the strips of land as additions to the alleys, and became vested with the title thereto in its sovereign capacity, but in trust for the use to which it was dedicated, to wit, as additions to the public alleys. From 1933 up to the present time the strips of land have been used by the public generally as parts of the alleys.
However, the Dunlaps in the spring or summer of 1951 filed an application addressed to the municipal authorities, in which they requested the city to sell them the strips of land, and to pass an ordinance reciting that the strips had been abandoned for public use, and were no longer parts of the alleys. In consideration for such conveyance, the Dunlaps offered to pave the original 20-foot alley and the original 10-foot alley adjacent to lots 7 and 8, they being the successors in title of the insurance company to said lots, as diminished by the conveyance of the strips for alley purposes. The application states that the land conveyed has never been actually used as an alleyway, but for a long number of years has been used as a storage place for automobiles and for parking purposes, and only the original alleyways are used by the public. Thereafter the mayor and council enacted an ordinance reciting that, it appearing that the strips of land had never been used as a part of the alleys, but had been used exclusively as a storage place for automobiles, trucks and junk, and it further appearing that it is no longer in the public interest to maintain the strips as a part of the alleyways, it is therefore ordained that the two strips of land be "abandoned, vacated and closed as being parts of the public alleys." It was further ordained "that the original 10-foot alley between lots 6 and 7 in said block, and the 20-foot alley between lots 1 and 2 on the one side, and lots 7 and 8 on the other, shall continue to remain as alleys." In June, 1951, the city executed a deed conveying the strips of land to the Dunlaps.
While the application and the ordinance each shows upon its face that the use of the strips of land had not been abandoned by the public, the recitals therein that the strips had never been used as parts of the alleys are in direct conflict with the recital set forth in the deed from the insurance company which was accepted by the city, and in complete disregard of the facts, said portions of the alleys having been continuously used by the public as parts thereof.
The city, having accepted the dedication of the strips as additions to the public alleys, cannot now devote the property to any use inconsistent therewith, and has breached its trust in adopting the ordinance, and in undertaking to convey the land for private purposes. In pursuance of the application and the ordinance, the 17-foot strip along the 20-foot alley is in the process of being paved. After the strip is paved, the Dunlaps will, if not enjoined, use it exclusively for their own private purposes.
The city has no authority to grant encroachments upon the strips of land so dedicated as additions to the public alleys, and thereby to deprive petitioners, as property owners abutting the enlarged 20-foot alley, of their right to use it to the full width of 29 1/2 feet.
The ordinance and deed are void: (First) There having been no abandonment of the strips by the public, the city is without authority to alienate the strips or to devote them to any use inconsistent with the use by the public as additions to the alleys; the State cannot give any such power to the city, and the authority granted by section 72 of its charter (Ga. L. 1927, p. 1324) to close and vacate streets and alleys has no application with respect to the right of the city to alienate those parcels so dedicated to public purposes. (Second) If section 72 of the charter, supra, is so construed as to authorize the city to vacate portions of public alleys for private purposes and for the benefit of private interests, then section 72 and the ordinance are violative of the due-process clauses of the State and Federal Constitutions, in that they constitute an unlawful attempt to deprive petitioners and other abutting property owners of their property without due process of law. (Third) The ordinance was based upon an application containing within itself a misrepresentation of fact, it being impossible for the Dunlaps to own a 17-foot strip in said 20-foot alley, as enlarged, and for the city to hold open for public use a 20-foot alley between lots 1 and 2 on the south, and lots 7 and 8 on the north.
In the circumstances, the action of the city in vacating the alleys and in conveying the portions thereof to the Dunlaps is a gross abuse of discretion, and void. However, unless the defendants are enjoined from interfering with the use by the public of the parcels of land, the property owned by the petitioners will be greatly injured, its value for rental purposes materially reduced, the business operated by Thornton will be irreparably injured, and he will be deprived of the full use and enjoyment of the property now occupied by him.
Petitioners had no knowledge of the application filed by the Dunlaps the ordinance enacted by the city, or of the deed executed by the city until the paving of the 17-foot strip was begun several days prior to the filing of their petition. Should it be determined that the alley has not been shifted and that petitioners are occupying 7 1/2 feet of the original 20-foot alley, then they stand ready to do equity by paying the city the reasonable value thereof, or otherwise by complying with the order of the court in reference thereto.
The petitioners prayed: that the ordinance be decreed to be void; that the deed from the city to the Dunlaps be canceled; that the court decree that the parcels of land have become additions to the alleys, and as such must remain open for the full use and enjoyment of petitioners and the public generally; that the rights of petitioners to the use of the alleys to the full widths of 29 1/2 and 25 feet respectively be established by the decree of the court; that the city be enjoined from vacating, for private purposes and for the benefit of private interests, any portions of the public alleys as so enlarged; that defendants be enjoined from interfering with the use by petitioners and by the public of the alleys to their full widths as enlarged by the addition of the strips of land thereto; that the Dunlaps be enjoined from proceeding with the paving pursuant to their contract; that a rule nisi issue; and that petitioners have general relief.
A demurrer on general and special grounds was interposed by the defendants to the petition as amended. The trial court overruled the demurrer on each and every ground, to which ruling the defendants excepted.
The evidence at the interlocutory hearing developed the following facts: The traveled portions in Plum Street Lane have been shifted by acquiescence of the city and abutting property owners, and there are various differences in the width of the alleys in the whole downtown section of the city. The only entrance to the shop occupied by Thornton is the one on Plum Street Lane through which from 15 to 25 trucks enter each business day. In order for the trucks to get in and out, they have to use the alley to approximately its full width, including the 12 1/2 feet remaining in the original alley and the 17-foot addition thereto. Thornton can not operate his business of servicing trucks without the use of the 17-foot strip which the city seeks to abandon. The building occupied by Thornton is constructed in such a way that it would be impracticable to cut another entrance.
There was evidence for the defendants that the municipal authorities inspected the alleys and reached the conclusion that the strips in question had never been used as a part of the alleys, and that in their opinion their action in abandoning the strips would best serve the public interest. However, the uncontradicted evidence showed that the strips had been used over the years for driving and parking automobiles and trucks, and no showing of public interest was made by the defendants other than paving the original alleys without cost to the city and the addition of the property in dispute to the tax digest.
At the conclusion of the evidence, the trial court enjoined the defendants from interfering with the use by the petitioners and the public of the alleyways to their full widths as enlarged by the additional strips.
The defendants excepted in a direct bill of exceptions to the judgment overruling their demurrer and to the grant of an interlocutory injunction.
(After stating the foregoing facts.) 1. The amendment to the charter of the City of Macon (Ga. L. 1927, pp. 1283, 1324, section 72) provides: "The mayor and council shall have full power and authority to regulate, widen, change, lay out, close, vacate, direct and control the streets and alleys of the city," etc.
It is a well-established rule of law that the courts will not interfere with the free exercise of such rights as are left to the discretion of a corporate authority, unless such authority should go beyond the scope of powers delegated, or unless the discretion given should be abused by an arbitrary exercise thereof, and by a plain and unwarranted violation of private rights. Burckhardt v. City of Atlanta, 103 Ga. 302, 309 (30 S. E. 32); Story v. City of Macon, 205 Ga. 590, 593 (54 S. E. 2d, 396).
If the vacating of the property in dispute was simply a matter of discretion with the mayor and council, it would be improper for the courts to interfere with their determination. See Vandiviere v. Anderson, 202 Ga. 142 (42 S. E. 2d, 449); Harbuck v. Richland Box Co., 207 Ga. 537 (63 S. E. 2d, 333). However, the petitioners in the above cases did not attack the provisions of the charters as being unconstitutional, nor were any facts alleged to show that the closing of portions of the streets was contrary to the "best interest" of the towns. The property now under review was conveyed to the city as a dedication to prescribed use "as permanent additions to alleys," and the public generally was the recipient of the right of use thereunder. "If there is a dedication by an original proprietor in favor of a city, and the authorities of the city have appropriated it to a different purpose, equity may compel the specific execution of the trust, by restraining the corporation, or by removing the obstructions." Mayor &c. of Macon v. Franklin, 12 Ga. 239, 253. "Property dedicated to a particular purpose can not by the dedicatee, a municipality, be diverted from that purpose except under the right of eminent domain." Brown v. City of East Point, 148 Ga. 85 (2) (95 S. E. 962); Donalson v. Georgia Power & Light Co., 175 Ga. 462 (5) (165 S. E. 440). "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 (169 S. E. 355); Southern Railway Co. v. Wages, 203 Ga. 502 (2) (47 S. E. 2d, 501).
The present case is not one where the property was to be put to some other or different public use such as for the erection of a needed public improvement. Mere cash consideration flowing to the municipality is not sufficient to warrant the diversion from a public to a private use. 64 C. J. S. 40, 1668.
"Neither the General Assembly nor a subordinate public corporation acting under its authority can lawfully vacate a public street or highway for the benefit of a private individual. The street or highway can not be vacated unless it is for the benefit of the public that such action should be taken. The benefit may be either in relieving the public from the charge of maintaining a street or highway that is no longer useful or convenient to the public, or by laying out a new street or road in its place which will be more useful and convenient to the public in general. If the public interest is not the motive which prompts the vacation of the street, whether partial or entire, the act of vacation is an abuse of power, and especially would it be a gross abuse of power if it is authorized without reference to the rights of the public and merely that the convenience of a private individual might be subserved." Marietta Chair Co. v. Henderson, 121 Ga. 399, 407 (49 S. E. 312).
While a court will not ordinarily inquire into the motives or reasons of municipal authorities in declaring that streets have been vacated, nevertheless, where as here it is alleged that the action taken was against public interest and solely for the benefit of a private individual, such allegations are not subject to demurrer on the ground that the court was in such circumstances without authority to enjoin the city from closing the street.
Neither was the petition as amended subject to demurrer on the ground that the petitioners did not come into equity with clean hands.
Nor was the petition as amended, which alleged that the petitioners had no knowledge of the action to vacate until a few days prior to the filing of the petition, subject to demurrer on the ground it appeared that the defendants had completed the paving adjacent to the property of the petitioners prior to the filing of the application for injunction.
It follows that the petition as amended, which alleged that the vacating of designated portions of public alleys was authorized by the city without reference to the rights of the public and merely for the convenience of a private individual, was sufficient to set forth a cause of action, and the trial court did not err in overruling the defendants' grounds of demurrer.
2. While the ordinance recites that the strips of land had never been used as a part of the alleys, and that it was no longer in the public interest to maintain them as a part thereof, yet it was further recited that the strips were being used for parking automobiles and trucks, which is one of the purposes for which streets and alleys may be used. See City of Albany v. Lippitt, 191 Ga. 756, 762 (13 S. E. 2d, 807).
The evidence on the interlocutory hearing shows use of the property dedicated for a period beginning in 1906, and continuing up until the filing of the petition in 1951, by members of the general public, for purposes consistent with the purpose of the dedication; also that the entire width of the alleys, including the strips in question, was needed to take care of the automobile traffic, and that the action of the city was taken without consulting any of the abutting property owners other than the defendant R. C. Dunlap. The courts can not ignore such positive and uncontradicted evidence. The finding and ordaining by the council did not serve to obliterate the true state of facts. The use of the area in question by the public for parking purposes, and by vehicles traversing such area as a matter of law constituted such a use as to negative abandonment by the public and render ineffectual any municipal declaration that the area had been abandoned as an alley.
Accordingly, the trial court did not err in granting an interlocutory injunction.
DUCKWORTH, Chief Justice, dissenting. The charter plainly empowers the city to abandon streets and alleys. This record unmistakably shows that the city did so abandon the alley here involved by resolution of its governing body. There is no indication that thereafter the city did anything with reference thereto to improve, keep open, or otherwise retain the abandoned alley. Therefore, the city was clearly within its lawful rights, and the petition, showing such facts, should have been dismissed on demurrer. For the same reason the interlocutory judgment is erroneous. Harbuck v. Richland Box Co., 207 Ga. 537, supra. I am authorized to say that Mr. Justice Hawkins concurs in this dissent.
Jones, Jones & Sparks and Jones, Sparks, Benton & Cork, contra.
Ed. S. Sell and Martin, Snow & Grant, for plaintiffs in error.
ARGUED APRIL 14, 1952 -- DECIDED MAY 13, 1952 -- REHEARING DENIED JUNE 11, 1952.
Saturday May 23 04:42 EDT


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