Hames et al. v. City of Marietta et al.

Supreme Court of Georgia1956-04-09No. 19241

212 Ga. 331

Summary · law.co

Holding. The court reversed the dismissal of the petition on demurrer, holding that the amended petition stated a valid cause of action by sufficiently alleging Joseph M. Brown's implied intention to dedicate Brown Avenue for public use and the City of Marietta's failure to accept the dedication of the unimproved portion.

The case concerns whether the City of Marietta accepted a dedication of an unpaved portion of Brown Avenue for public use. The original landowner, Joseph M. Brown, intended to dedicate the avenue for public purposes in 1922, but the city developed only part of the street and never assumed control over the section crossing the plaintiffs' property. The court examined the legal requirements for municipal acceptance of a dedicated street, noting that acceptance can be implied from improvements made by the municipality, but only as to the portions where the city actually exercised authority.

The court applied Georgia law establishing that a municipality must affirmatively accept a street dedication for it to become public property. Since the City of Marietta had not maintained, improved, or exercised any control over the undeveloped portion of Brown Avenue for more than 30 years, the court found a presumption that the city had declined the dedication. The plaintiffs stated a valid legal claim by alleging facts sufficient to show the city never accepted the unimproved section of the avenue.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether ambiguous pleadings are construed most strongly against the pleader on demurrer
What constitutes municipal acceptance of a dedicated street
Whether partial improvements by a municipality imply acceptance of an entire dedicated street
Whether extended nonuser of a dedicated street gives rise to a presumption of declined dedication

Procedural posture

The City of Marietta filed a general demurrer to the plaintiffs' amended petition, which the trial court granted by dismissing the action; the plaintiffs appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Head, Justice.

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 ease, 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).

(a) Acceptance of the unimproved portion of Brown Avenue is not shown by a prior development of a part extending beyond the petitioners’ property.

Argued February 13, 1956

Decided April 9, 1956.

Howell C. Bavan, Ben F. Smith, Faine Chambers, Dewey Smith, Luther C. Hames, Jr., for plaintiff in error.

B. M. Beed, Conley Ingram, contra.

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. Souler, 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. Meldrim, 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. 1095); 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 tire 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. Blun, 131 Ga. 489 (62 S. E. 705); East Atlanta Land Co. v. Mower, 138 Ga. 380 (4) (75 S. E. 418); Hamil v. Pone, 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.

Judgment reversed.

All the Justices concur.