Dunaway v. Windsor

• Decision Date: 06 June 1944
• Docket Number: 14866.
• Citation: 30 S.E.2d 627,197 Ga. 705
• Parties: DUNAWAY v. WINDSOR.
• Court: Georgia Supreme Court

30 S.E.2d 627

197 Ga. 705

DUNAWAY v. WINDSOR.

No. 14866.

Supreme Court of Georgia

June 6, 1944

Syllabus by the Court.

1. A highway may come into existence by dedication.

2. The proof need not show an express dedication; it may under certain circumstances be implied.

3. An intention to dedicate property to public use is essential to a dedication.

4. The mere fact that the public uses the property of a private individual is not necessarily inconsistent with the retention of dominion by the owner.

5. When an established dedication is claimed, the acts relied on to establish the dedication must be such as to clearly and satisfactorily indicate a purpose on the part of the owner to abandon his personal dominion over the property and to devote the same to a definite public use.

6. An intent on the part of the owner to dedicate must be manifested by the conduct of the owner from the facts and circumstances of the particular case, based upon the acts of the owner, and not upon what is secreted in his heart.

7. While an intention to dedicate need not be shown by an express declaration to that effect, but may be inferred under certain circumstances from an acquiescence by the owner in the use of his property by the public, such acquiescence is in the nature of an estoppel in pais, and implies a knowledge on the part of the owner of the claim by the public to the right to appropriate his property to the public use.

8. An acquiescence cannot be effective to deprive the owner of his property when the claimed acquiescence amounts to no more than a failure to protect in isolated instances when some members of the public travel over his land.

9. The 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.

10. An occasional road-working of the property by the public authorities, there being no other evidence of maintenance, is not of itself sufficient to create the presumption of an intention to dedicate. The use and maintenance must be of the character, and for the length of time, sufficient to create a presumptive right of the public therein.

11. As a general rule, before a highway can be established by prescription, it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way, without interruption or without substantial change, for a period of twenty years or more.

J. V Poole, of Atlanta, for plaintiff in error.

John H Hudson, of Atlanta, for defendant in error.

GRICE Justice.

Dunaway and Windsor are neighbors, each residing on a tract of land in what is inferentially shown to be outside the corporate limits of the city of Atlanta, in the county of Fulton. Windsor's home is about 300 feet east of the home of Dunaway. Gun Club road, shown to be a public road, is some distance west of both properties. It was in evidence that originally one McWilliams owned the land between what is now Dunaway's property and the Gun Club road, and one Sizemore once owned the land on the other side of Dunaway. On the hearing, Dunaway offered proofs sufficient to support the allegations of his petition; and unless the evidence as a whole, including that offered by Windsor, was sufficient to raise an issue, he, Dunaway, was entitled to a finding and a decree in his favor enjoining Windsor from trespassing on Dunaway's premises, as prayed for. It is insisted by Windsor that the jury were authorized to find that all Windsor had done was to remove impediments to travel placed by Dunaway in front of the latter's dwelling house, in a public road known as Mack Drive, leading from Gun Club road beyond the property of Dunaway to that of Windsor; and that Dunaway was rightfully enjoined from continuing to prevent Windsor from using the part of Mack Drive which is in front of Dunaway's house. The real issue is, was the evidence such as to authorize the conclusion that the alleged acts of trespass were merely the removal of impediments from the portion of a public road? Under no other theory can the verdict of the jury finding in Windsor's favor be sustained.

What is here relied on as a public road was not created by legislative enactment, nor was it established by a formal proceeding of the county authorities. It could have come into existence by only two other methods; either by prescription or by dedication. Southern Ry. Co. v. Combs, 124 Ga. 1004, 53 S.E. 508; Hillside Cotton Mills v. Ellis, 23 Ga.App. 45, 97 S.E. 459.

Windsor's cross-action, while containing the allegation that the alleged road has been opened and in constant and continuous use as a public highway for more than twenty years, goes further, for he says that it 'has been dedicated and in use for more than twenty years.' We shall, however, endeavor to determine whether under the facts it can be treated as having come into being either by dedication or by prescription.

There is not even a hint in this record of any express dedication by any owner or former owner--nor deed, nor act, nor acknowledgment by him, nor any conduct of his expressing any intent to dedicate the land to the public as a highway. There may exist, however, an implied dedication; but whether express or implied, an intention on the part of the owner to dedicate his property to the public use must be shown. Although the dedication itself is not complete until there is an acceptance on the part of the public of the property for such use, there must nevertheless be a dedication. When an implied dedication is claimed, the facts relied on must be such as to clearly indicate a purpose on the part of the owner to abandon his personal dominion over the property and to devote the same to a definite public use. 'The mere use of one's property by a small portion of the public, even for an extended period of time, will not amount to a dedication of the property to a public use, unless it appear clearly 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 as public in its nature.' Healey v. City of Atlanta, 125 Ga. 736, 54 S.E. 749, 750. In the case last cited it was further said: 'But the use must be of such a character as to clearly indicate that the public has accepted the dedication of the property to the public use'; and also, 'However, the acts relied on to establish the dedication must be such as to clearly indicate a purpose on the part of the owner to abandon his personal dominion over the property and to devote the same to a definite public use.' In the early case of Mayor &c. of the City of Macon v. Franklin, 12 Ga. 239, at page 244, this court had said that dedication may be made 'in writing, or by parol; or it may be inferred from his acts, or implied, in certain cases, from long use.' In Collins v. Mayor &c. of Macon, 69 Ga. 542, it was ruled that: 'Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an assent that property should be so used and enjoyed. (a.) The mere use of the corporate property of a city by it for a particular purpose, is not a dedication of such property for that purpose forever.' In Swift v. Mayor &c. of Lithonia, 101 Ga. 706, 29 S.E. 12, may be found the statement that: 'In order to constitute a dedication of land to public uses, an intention on the part of the owner to abandon the use of the land to the public must be shown by proof of unequivocal and unambiguous words or acts of such owner. The circumstances must be such as to show a clear assent to such dedication.' In Dillon's Municipal Corporations, 5th Ed., vol. 3, § 1079, the author states: 'An intent on the part of the owner to dedicate is absolutely essential, and unless such intention can be found in the facts and circumstances of the particular case, no dedication exists. But the intention to which courts give head is not an intention hidden in the mind of the land-owner, but an intention manifested by his acts. It is the intention which finds expression in conduct, and not that which is secreted in the heart of the owner, that the law regards. Dedications have been established in every conceivable way by which the intention of the party can be manifested. Where a plat is made and recorded and lots are sold with reference thereto, the requisite intention is generally indisputable. The intention may also be established by parol evidence of acts or declarations which show an assent on the part of the owner of the land that the land should be used for public purposes. To deprive the proprietor of the land, the intent to dedicate must clearly and satisfactorily appear.'

Passing by for the moment a discussion as to whether there was such use by the county authorities as to imply an acceptance, the case as to dedication must fall, for the reason that, under the foregoing authorities, no sufficient facts or circumstances were proven to show a purpose on the part of the owner to abandon his own personal dominion over the property, none to show a clear assent, nor any acts of the owner to show an intention to dedicate.

But it may be argued, an intention to dedicate may be inferred, as this court said in Healey v. City of Atlanta, supra, from an acquiescence by the owner in the use of his property by the public. Acquiescence, however, means a tacit consent to...