Georgia R. & Banking Co. v. City of Atlanta
| Decision Date | 12 August 1903 |
| Parties | GEORGIA R. & BANKING CO. v. CITY OF ATLANTA. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Private property cannot be taken for public use without payment therefor; nor can this end be obtained under a claim of dedication unless it appears that the owner has expressly given the property, or, by his long-continued acquiescence in the exclusive use thereof, signified an intention to devote it to public purposes.
2. Not only must the owner give, but the public must accept, before there can be a dedication.
3. An acceptance is peculiarly necessary in the case of an alleged dedication of a street, since it may be a burden on the municipality, imposing the responsibility of care and maintenance, with the consequent liability for injury to person and property occasioned by defects therein.
4. In every case of an implied dedication, it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift.
5. The fact that the public uses an approach to stations or depots is not inconsistent with the retention of private ownership by the company owning the depot.
6. Where it appeared that there were no sidewalks, no curbing no lights, and that the strip had not been worked by the city, but was used by the railroad company as an approach to a place at which cars were loaded and unloaded, and was kept in repair at the expense of the company, and where there was positive evidence that the company had not intended to dedicate, but simply permitted the use of the land by pedestrians and vehicles, the evidence was insufficient to establish the dedication as a street.
7. Equity will not interfere with the enforcement of criminal laws, nor aid or obstruct criminal courts in the exercise of their jurisdiction; but that principle does not deprive a court of equity of its power to protect private property, nor defeat its right to enjoin a continuing injury to property or business.
8. Where it is manifest that a criminal prosecution is threatened for the purpose of preventing the exercise of civil rights conferred by law, injunction is the proper remedy to prevent injury to the property or business thus menaced.
Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.
Action by the Georgia Railroad & Banking Company against the city of Atlanta. From an order refusing an injunction, plaintiff brings error. Reversed.
Jos. B. & Bryan Cumming and Sanders McDaniel, for plaintiff in error.
Jas. L Mayson and Wm. P. Hill, for defendant in error.
As dedication implies a gift, and involves an active, not a passive, state of the donor's mind, the owner may testify as to his intent, though that may be overcome by conduct inconsistent with his testimony. City of Chicago v. Chicago, etc., Ry. Co., 152 Ill. 561, 38 N.E. 768. Here there was no evidence to rebut the testimony of the officers of the company that there had been no purpose to dedicate this land as a street, and its conduct in repairing the same for its own private use, and its action in building tracks longitudinally along the strip, were inconsistent with the theory that it had been set apart as a street. Davis v. E. T. R. R., 87 Ga. 605, 13 S.E. 567.
Not only must there be an intent to give, but, in case of streets, there must be evidence of an intent to accept. Streets are not an unqualified benefit to a municipality. They impose responsibilities, and the acceptance should be by some explicit act on the part of the authorities, and not by vague, indefinite, and inconclusive actions on the part of a body of citizens loosely called the ""public." Parsons v. The Trustees, 44 Ga. 537. There were no sidewalks no curbing, no evidence that the city had ever put the land in condition for travel, and nothing to indicate that the municipality had ever treated it as a public street. The case comes squarely within the rule applicable to squares and areas around stations, depots, wharfs, and...
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