City of Savannah v. Barnes
| Decision Date | 13 August 1918 |
| Docket Number | 564. |
| Citation | 96 S.E. 625,148 Ga. 317 |
| Parties | MAYOR AND ALDERMEN OF CITY OF SAVANNAH v. BARNES. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In the construction of a trust deed, or a deed in the nature of a trust deed, due regard should be had to the intention of the parties; and the construction must be upon the whole deed and not merely upon disjointed parts of it. Thus construed the deed to plaintiff in error conveyed to it merely an easement for a street.
A municipal corporation may, by abandonment, relinquish its control over a street which has been dedicated to it for public use. Where an easement has been acquired by grant, a mere nonuser, without further evidence of an intent to abandon it, will not constitute abandonment.
The evidence was sufficient to authorize the verdict, and the court did not err, for any of the reasons assigned, in refusing a new trial.
Error from Superior Court, Chatham County; P. W. Meldrim, Judge.
Suit by Hagar Barnes against the Mayor and Aldermen of the City of Savannah. Judgment for plaintiff, and defendant brings error. Affirmed.
R. J Travis and D. S. Atkinson, both of Savannah, for plaintiff in error.
Leo A Morrissy, Alex R. MacDonell, and Walter C. Hartridge, all of Savannah, for defendant in error.
In 1870 Dr. Louis A. Falligant owned a tract of land near the then southern border of the city of Savannah. This tract of land was surveyed into city lots. On October 20, 1870, Dr. Falligant conveyed to the city of Savannah the streets and lanes through said tract, as shown by the map of Southville by which name he designated the tract. Among the streets conveyed by Dr. Falligant to the city was "western half of Price street, 25 feet and 6 inches wide." The deed to the city was duly recorded on November 9, 1870. In 1872 Dr. Falligant conveyed lot No. 92 of the Southville division to Hagar Barnes (then Crittendon). This deed gave the dimensions of lot 92 as fronting 30 feet on Lamar avenue, with "the extension of Price street as the eastern boundary thereof." Price street was not then opened and used as a street. In 1872 Hagar Barnes inclosed lot No. 92 and the tract lying immediately east thereof and designated upon the map as Price street. She has been in the peaceable, undisputed, open, and notorious possession thereof from that date until this. In 1899 the city of Savannah concluded to open Price street, but it did not use the land conveyed for that purpose by Dr. Falligant, but, on the contrary, purchased land about 35 feet eastward, and used that for the purpose of opening Price street. Hagar Barnes purchased the strip immediately east of the tract conveyed by Dr. Falligant to the city and lying between said tract and Price street as actually opened up. In December, 1915, the city of Savannah served notice on Hagar Barnes to remove her fences from the tract conveyed to it by Dr. Falligant as Price street; and she filed a petition in equity against the city, in which she prayed for injunction against the summary removal of her fences from the tract in question. She also prayed that title to the premises be decreed in her. She contended that the city had never used the tract of land for street purposes, but, upon the contrary, that the original plan to open Price street through "Southville division" was abandoned in 1899, and the street actually opened 35 feet to the eastward.
To this petition the defendant demurred generally and specially; one of the grounds of general demurrer being that the petition showed that the plaintiff, at the time she entered into possession of the premises in dispute, knew that the land in controversy had been conveyed to the defendant for a street, and that the plaintiff was a mere squatter. Another ground of the general demurrer was that the petition showed that the city's interest in the premises was not that of an easement, but a fee, with restrictions attached to its use, and that prescription will not run against the city. The general demurrers were overruled. By cross-bill the city sought to recover the premises in dispute, relying upon the deed from Dr. Falligant to the city. The trial of the case resulted in a verdict for the plaintiff. Error is assigned upon certain rulings of the court in admitting and rejecting evidence, upon certain charges to the jury, and upon refusals to charge. Error is also assigned here upon exceptions pendente lite taken to the judgment overruling the general demurrer.
The case presents two controlling questions. The first involves a construction of the deed from Dr. Falligant to the city. The deed recites the offer of Dr. Falligant to the mayor and aldermen of the city of Savannah "to make them a deed of dedication of certain streets and parts of streets," being parts of certain described tracts of land, upon condition that the city would pay to him a certain sum of money and complete certain work of grading the streets at the expense of the city. It further recites the reference of the offer to the committee on streets and lanes, and the recommendation of this committee upon the consideration therein expressed.
The deed then undertakes to convey, according to a map attached "all those portions of lot 7 * * * laid off as public streets or highways, forever" (describing the streets or highways in detail), "together with all and singular the houses, outhouses, edifices, buildings, stables, yards, gardens, liberties, privileges, easements, commodities, emoluments, hereditaments, rights, members, and appurtenances whatsoever, thereunto belonging, and the reversion and reversions, remainder and remainders, rents, issues, and profits, and all the estate, right, title, interest, property and possession, claim and demand whatsoever, in law or in equity, of the party of the first part, of, in, or to the same, or any part or parcel thereof, with the appurtenances, to have and to hold the said streets and lanes * * * to the only use and behoof of the said party of the second part and their successors in office, for the purpose of public highways forever, and to and for no other use, intent, or purpose whatsoever." The consideration recited is $750, to be paid in city bonds. The grantor had expended, according to his offer to the city, approximately $1,500...
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