Garner v. Mayor and Council of Athens
| Decision Date | 11 April 1950 |
| Docket Number | No. 17031,17031 |
| Citation | 206 Ga. 815,58 S.E.2d 844 |
| Parties | GARNER et al. v. MAYOR AND COUNCIL OF ATHENS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Under the allegations and proof, it was error to deny the interlocutory injunction.
Elizabeth H. Garner and Cherokee Flying Service, Inc., a corporation, filed a petition against the Mayor and Council of the City of Athens and J. G. Beacham, as City Engineer, and in substance alleged: The petitioner, Mrs. Garner, is the owner of a described tract of land. The petitioner, Cherokee Flying Service, Inc., is in possession of the described property under a lease from Mrs. Garner, a copy of the lease being attached as an exhibit and made a part of the petition. The corporation is also in possession of land adjoining that described as belonging to Mrs. Garner under an oral agreement with Mrs. J. S. Russell Rigsby, whereby the corporation was permitted to occupy the land for an indefinite period, upon consideration that the corporation would improve the land by stopping erosion thereon, with the right to use the land so improved as a runway for airplanes. The corporation has made the improvements contemplated by the agreement and is using the property for a runway for airplanes. The defendant, Beacham, acting for the other defendant, and pursuant to a resolution adopted September 6, 1949, is undertaking, and actually commencing, to grade a street on property owned by Mrs. Garner, and partly on property owned by Lumpkin (being the property referred to in the agreement with Mrs. Rigsby). The cutting of a road as proposed by the defendants will encroach on the property of the petitioner, Mrs. Garner, and destroy the runway in use for the taking off and landing of planes, and would make it impossible for planes to land on such strip. The illegal action of the defendants, unless enjoined, will disrupt the training and instruction of student flyers. The corporation, and others renting the right to use the air strip, will suffer loss and damage in their use of the air strip. A multiplicity of suits can be avoided only by an injunction restraining the defendants from illegally grading the road. The petitioners have no adequate remedy at law, and will suffer irreparable damage unless the defendants are enjoined. The prayers were that the defendants be temporarily and permanently enjoined from grading or opening a road or street along the property described, and for other relief.
A temporary restraining order was granted, and at the hearing for interlocutory injunction the demurrers of the defendants were overruled. The record does not contain any exceptions to the rulings on demurrer.
The defendants filed an answer, in which they alleged: The road referred to in the petition has been a public road at least since 1920, when the corporate limits of the city were extended. At that time the street was 'tacitly' accepted by the city as a public street, and has remained a public street. The petitioners, without legal authority, extended the air strip across the public road. The grading described in the petition is not the opening of a new road, but is for the purpose of maintaining a public road which has been in existence for a long period of time, and was referred to in the deed of the petitioner, Mrs. Garner. The grading of a public street is not illegal, but is a public duty. The petitioners' use of the public street for an air strip is an unlawful obstruction of the street. The defendants prayed that the petitioners be permanently enjoined from using the public street as an air strip, and for other relief.
After hearing evidence, the court denied the interlocutory injunction sought by the petitioners, and the exception is to that order.
Eugene A. Epting, Athens, John E. Griffin, Athens, for plaintiffs in error.
Robt. G. Stephens, Jr., Athens, for defendants in error.
If a public street or road is shown by the evidence to presently exist along the way or route which the city proposes to grade as a public street, the court did not err in denying the interlocutory injunction. If a street or road does not presently exist along the route proposed to be graded by the city, the city would have no right to grade a street or road along the route, without first acquiring title or an easement to the street or road in the manner provided by law, and the court should have granted the application for interlocutory injunction.
The defendants did not allege, nor does the evidence show, any work by the city on the alleged street or road since the extension of the city limits in 1920. Whether or not the rights of the city to now assert dominion over the alleged street or road has been lost by non-user, Code, § 85-1403, is a question that can arise only if it should be determined that a public road existed, as contended by the defendants, at the time the city limits were extended.
The defendants in their answer asserted that the road which they proposed to grade had 'been a public road at least since 1920, when the corporate limits of said City of Athens were extended to the pressent location of said roads;' that the street was 'tacitly' accepted by the city as a public street; and that the grading proposed is not for the opening of a new road, but is for the purpose of maintaining a public road, which has been in existence for a long period of time, and was referred to in the deed of one of the petitioners.
W. D. Beacham testified for the defendants that J. G. Beacham, one of the defendants, testified that he remembered riding over the road with his father in a T-model Ford, as a small child (about 35 years ago). He further testified that the 'width of the road in its present road bed would be enough for one-way traffic only.'
R. F. Harris testified for the plaintiffs that he had been familiar with the old road since 1933; that he had never driven his car over it and could not do so; that the old road bed was badly eroded in places; and that he had never seen any evidence that it had been worked or graded. W. L. Garner testified that he was President of Cherokee Flying Service, Inc.; that the old road had never been used as a public road since he had known the property; and that it was six or eight feet wide in most places, with gullies six feet deep in some places, and with trees and bushes growing on parts of it.
H. G. Nicholson testified: that he has been County Engineer of Clarke County for approximately thirty years; that he had examined the Public Road Register of Clarke County, and that the road (as claimed by the defendants) was not listed on the register, but that in recent years the road register was not kept...
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