Childs v. Sammons

• Decision Date: 11 September 2000
• Docket Number: No. S00A0929.,S00A0929.
• Citation: 534 S.E.2d 409,272 Ga. 737
• Parties: CHILDS v. SAMMONS et al.
• Court: Georgia Supreme Court

534 S.E.2d 409

272 Ga. 737

CHILDS v. SAMMONS et al.

No. S00A0929.

Supreme Court of Georgia.

September 11, 2000.

Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, Macon, for appellant.

Anderson, Walker & Reichert, Albert P. Reichert, Jr., Jeanna G. Fennell, Macon, for appellees.

CARLEY, Justice.

Helen Childs filed a petition to quiet title to a 40-foot strip of land which allegedly separated her tract from that owned by Ellis and Mira Sammons (Appellees). According to Ms. Childs, the disputed area is a former street dedicated to, but eventually abandoned by, the City of Gray. The City denied that the property once was one of its streets, and it made no claim of any interest in the strip. Appellees defended on the basis that the property never was dedicated as a municipal street and that they acquired prescriptive title thereto. After a hearing, the special master recommended that the trial court decree that Appellees are the owners of the disputed property, but he failed to make appropriate findings of fact and conclusions of law. The trial court adopted the special master's report and, on appeal, we reversed and remanded for the entry of a new judgment containing the requisite findings and conclusions. Childs v. Sammons, 271 Ga. 161, 516 S.E.2d 779 (1999). On remand, the special master made a new report containing the findings and conclusions relied upon to support a recommended decree of prescriptive title in Appellees. Ms. Childs appeals from the order of the trial court adopting the recommendation of the special master on remand.

1. According to Ms. Childs, the evidence does not authorize a decree of prescriptive title in Appellees, but demands a finding that the property is an abandoned public street. She does not contend that the strip was ever formally or expressly dedicated to and accepted by the City. Instead, she relies upon the principle of implied dedication and acceptance.

The public use of private property is not necessarily inconsistent with the retention of dominion by the owner. Dunaway v. Windsor, 197 Ga. 705(4), 30 S.E.2d 627 (1944). Here, there was evidence that, before the disputed area was blockaded, some motorists used it as a shortcut to travel between the highway and a dead-end public street adjoining either side of Appellees' property. However,

[t]he 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.

Dunaway v. Windsor, supra at 706(9), 30 S.E.2d 627. The plaintiff did not proffer any evidence that the City ever maintained the strip as a municipal street open for public use. Although it appears that the county would scrape and grade the area periodically, "[i]t is established that by permitting public authorities to occasionally scrape and grade a private road, a property owner does not manifest an intention to dedicate the roadway." Chandler v. Robinson, 269 Ga. 881, 882(1), 506 S.E.2d 121 (1998). Thus, the evidence did not demand a finding that the strip was impliedly dedicated to and accepted either by the City or the county as a public street.

2. Ms. Childs urges that the trial court erroneously predicated its decree upon the special master's finding that Appellees hold prescriptive title to the strip. This finding requires proof that Appellees' possession did not originate in fraud and that it was public, continuous, exclusive, uninterrupted, peaceable and accompanied by a claim of right. OCGA § 44-5-161. Here, the evidence...