Ellis v. Mayor and Aldermen of Hazelhurst
| Decision Date | 16 May 1912 |
| Citation | 75 S.E. 99,138 Ga. 181 |
| Parties | ELLIS et al. v. MAYOR AND ALDERMEN OF HAZELHURST. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The evidence for the plaintiff examined, and found sufficient to withstand a motion for a nonsuit.
An express dedication to a municipality of a particularly described parcel of land for use as a public street may be made by parol.
Where the confines of the land dedicated to a municipality for use as a street are definitely fixed by the dedicator in his offer of dedication, municipal acceptance of the whole may be implied from improvements or repairs done on a portion of the street by the municipality in recognition of the dedication.
Inasmuch as an acceptance of the dedication of a street imposes upon the municipality duties and burdens with respect thereto, an express acceptance must be by authorized officials or the governing body of the municipality.
If an owner offers to dedicate land to a municipality for a public street on condition that the whole parcel defined by him must be opened by the grading of the entire width of the street and by removing all obstructions therefrom, acts done by the municipality from which an acceptance will be implied must be in compliance with the prescribed condition. But if the intent of the dedicator be to dedicate a street of specified dimension to be opened up by the municipality, and the street is opened up by the municipality so as to meet the exigencies of safe and convenient travel, such acts by the municipality would be sufficient to indicate acceptance of all the land which was dedicated for use as a street.
On an issue whether an owner of land had dedicated a certain street, his deed describing the land as bounded by the street which he intended to dedicate for public use is relevant evidence.
On the issue of whether or not an owner of land had dedicated a street to a municipality and marked it out, testimony that the defendant, who was the grantee of the alleged dedicator and a citizen of the municipality several years after the alleged dedication, shortly before the trial measured the width of the street, is irrelevant.
It was error to charge that "most of the evidence only indirectly bears upon the issues of the case."
Error from Superior Court, Jeff Davis County; C. B. Conyers, Judge.
Action by the Mayor and Aldermen of Hazelhurst against R. S. Ellis and others. Judgment for plaintiffs, and defendants bring error. Reversed.
P. L Smith, of Hazelhurst, and W. W. Bennett, of Baxley, for plaintiffs in error.
S.D Dell, of Hazelhurst, for defendants in error.
This contest is between the city of Hazelhurst and a landowner over the width of Gill street. The landowner was proceeding to erect a fence on what he claimed to be the outer limits of his land abutting on Gill street, and the city filed a petition to enjoin the building of the fence, which was alleged to encroach 20 feet on the street. The city submitted evidence tending to show the following: Gill street extends westward from second avenue to the incorporate limits crossing a branch. In 1898 W. C. Swain owned a tract of land lying westward from the branch and reaching beyond the city limits. He lived on this land, and desired to open a street 80 feet in width from the branch to the corporate limits of the town. Accordingly, in that year, he staked out a street 80 feet in width from the branch to the city limits, and constructed fences on both sides of the street. In some places the fences were a little more than 80 feet apart. He said to several people that he would give the street to the town if they would open it up. He told his son that he was giving the street to the town to open it up. In 1899 he sold 12 acres of land to Mr. Leeth, "beginning at the old hand mill branch at the foot of Gill street, and then running 280 yards towards the residence of the said W. C. Swain, down a street 80 feet wide to be given and appropriated to the town of Hazelhurst by the said W. C. Swain, bounding said 12 acres on the south." He also sold land to Mr. Deal, giving Gill street as a boundary. He told another person that "he donated that 80 foot street to the town if they would open it up." Shortly after these declarations and transactions, the city authorities worked the street by grading the roadbed from the branch to the top of the hill, keeping it in repair, and constructing a sidewalk on the north side for about 280 yards. From the top of the hill to the city limits the land was level, and the consistency of the soil was such that the roadbed required very little attention to keep it in good condition. The city's street force, and some citizens who were permitted to do personal labor in lieu of street tax, worked the street, shaping up the roadbed to the...
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