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HAMES et al. v. CITY OF MARIETTA, et al.
HEAD, Justice.
Injunction. Before Judge Foster, Presiding. Cobb Superior Court. November 5, 1955.
1. Where pleadings do not make positive allegations, but are ambiguous or couched in alternative expressions, they will, on demurrer, be construed most strongly against the pleader. Baggett v. Edwards, 126 Ga. 463 (55 S. E. 250); Krueger v. MacDougald, 148 Ga. 429 (96 S. E. 867); Doyal v. Russell, 183 Ga. 518, 534 (189 S. E. 32); Saliba v. Saliba, 201 Ga. 577, 583 (40 S. E. 2d 511); Morris & Eckels Co. v. Fulton National Bank, 208 Ga. 222, 225 (65 S. E. 2d 815). Applying this rule in the present case, the amended petition is sufficient to show an implied intention by Joseph M. Brown to dedicate "Brown Avenue" for public purposes in 1922.
2. "A dedication to public use, is when one being the owner of lands, consents, either expressly or by his actions, that it may be used by the public for a particular purpose." Mayor &c. of Macon v. Franklin, 12 Ga. 239 (2); Parsons v. Trustees of the Atlanta University, 44 Ga. 529; Atlanta Ry. &c. Co. v. Atlanta Rapid Transit Co., 113 Ga. 481, 492 (39 S. E. 12); Hyde v. Chappell, 194 Ga. 536 (22 S. E. 2d 313); Haslerig v. Watson, 205 Ga. 668, 679 (54 S. E. 2d 413).
3. Before a municipality can acquire by dedication an easement over land, for use by the public as a street, there must be an acceptance of the dedication by the municipality. Healey v. City of Atlanta, 125 Ga. 736 (54 S. E. 749); Tift v. Golden Hardware Co., 204 Ga. 654 (51 S. E. 2d 435); Savannah Beach, Tybee Island v. Drane, 205 Ga. 14 (52 S. E. 2d 439).
4. While municipal acceptance of a street may be implied from improvements, longitudinally, on a portion of the street by the municipality pursuant to a dedication (Norrell v. Augusta Ry. &c. Co., 116 Ga. 313, 42 S. E. 466, 59 L. R. A. 101; Ellis v. Mayor &c. of Hazlehurst, 138 Ga. 181, 75 S. E. 99; Lastinger v. Town of Adel, 142 Ga. 321 (2), 82 S. E. 884)--there can be, however, no implied acceptance of any street over which the corporate authorities have never assumed control. "If the municipality assumed control over a portion only of a street thus laid out, it will not be deemed to have accepted an easement over another portion of the street, as to which there has been no exercise of corporate authority." Donalson v. Georgia Power &c. Co., 175 Ga. 462 (6) (165 S. E. 440); Kelsoe v. Town of Oglethorpe, 120 Ga. 951 (48 S. E. 366, 102 Am. St. R. 138); City of Albany v. Lippitt, 191 Ga. 756, 761 (13 S. E. 2d 807); Adams v. Richmond County, 193 Ga. 42, 49 (17 S. E. 2d 184); Owens Hardware Co. v. Walters, 210 Ga. 321, 322 (3) (80 S. E. 2d 285).
5. While prescription does not run against a municipality as to land which it holds for the benefit of the public (Mitchell v. Mayor &c. of Rome, 49 Ga. 19; Norrell v. Augusta Ry. &c. Co., supra; Wade v. Town of Cornelia, 136 Ga. 89, 70 S. E. 880; Williamson v. Sonter, 172 Ga. 364, 157 S. E. 463)--it is none the less true that "An easement may be lost by abandonment, or forfeited by nonuser, if the abandonment or nonuser shall continue for a term sufficient to raise the presumption of release or abandonment." Code 85-1403.
6. Generally, abandonment is a mixed question of law and fact (Gaston v. Gainesville &c. Electric Co., 120 Ga. 516, 48 S. E. 188; Tietjen v. Meltrim, 172 Ga. 814, 159 S. E. 231), which applies to a municipal corporation as well as to an individual. Mayor &c. of Savannah v. Bartow Investment Co., 137 Ga. 198 (72 S. E. 1995); Mayor &c. of Savannah v. Barnes, 148 Ga. 317 (96 S. E. 625). The petition alleges that there has been no acceptance by the city of the unimproved portion of Brown Avenue for a period of more than 30 years. There is a presumption of law that the dedication has been declined by the city. In Still v. Mayor &c. of Griffin, 27 Ga. 502, 506, it was held: "Some fifteen or twenty years have elapsed since the dedication was made, and the bill alleges, and the proof shows that no steps have been taken to appropriate a portion of these public lots. The presumption of law is, that the donations have been declined." See also Parsons v. Trustees of the Atlanta University, supra; Penick v. County of Morgan, 131 Ga. 385 (62 S. E. 300); Mayor &c. of Savannah v. Bartow Investment Co., supra.
7. The present action was brought against the City of Marietta and its engineer in his official capacity. The rulings herein made are not to be construed as adjudicating the rights of purchasers of lots in the Joseph M. Brown Subdivision not made parties to this action. In this connection see Ford v. Harris, 95 Ga. 97 (22 S. E. 144); Schreck v. Blum, 131 Ga. 489 (62 S. E. 705); East Atlanta Land Co. v. Mower, 138 Ga. 380 (4) (75 S. E. 418); Hamil v. Pons, 160 Ga. 774 (129 S. E. 94); Aspinwall v. Enterprise Development Co., 165 Ga. 83 (140 S. E. 67); Tietjen v. Meldrim, 169 Ga. 678 (151 S. E. 349); Harris v. Powell, 177 Ga. 15 (169 S. E. 355); Westbrook v. Comer, 197 Ga. 433, 434 (5) (29 S. E. 2d 574); Thompson v. Hutchins, 207 Ga. 226 (60 S. E. 2d 455).
8. The petition, as amended, stated a cause of action, and it was error to dismiss the petition on general demurrer.
R. G. Reed, Mrs. Bronzie A. Reed, Mrs. Gladys Ragland, Clifford Chunn, and Luther C. Hames, Jr., filed a petition to enjoin the City of Marietta, and its engineer, from opening, grading, and using for street purposes an unimproved portion of Brown Avenue. (Henry Ragland intervened as a party plaintiff.) The petition as amended alleged in substance: Joseph M. Brown in 1922 laid out a subdivision with lots fronting on named streets. The petitioners are the owners of all lots fronting on the unimproved portion of Brown Avenue. The city has made no improvements on that part of Brown Avenue adjoining the petitioners' property, and there has been no acceptance by the city of the unimproved part of Brown Avenue as a street prior to a purported acceptance in December, 1954. By nonuser the city has lost any right to accept and open Brown Avenue as a street. Ordinances of the city (set out in the petition) prohibit the acceptance of any dedication not made by an express grant.
The general demurrers of the defendants to the petition as amended were sustained, and the exception is to that judgment.
R. M. Reed, Conley Ingram, contra.
Howell C. Ravan, Ben F. Smith, Faine Chambers, Dewey Smith, Luther C. James, Jr., for plaintiff in error.
Saturday May 23 02:25 EDT

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